DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 128 of 25-03-2013

Decided on 29-07-2013

Rupinder Kaur Sharma, aged about 35 years, W/o Sh. Surinder Kumar Sharma R/o Villa No. 385, Omaxe City, Goniana Road, Bathinda.

........Complainant

Versus

1. Omaxe Buildhome Pvt. Ltd., Corporate Office : 7, L.S.C. Kalkaji, New Delhi 110019 through its Chairman/Managing Director

2. Omaxe Buildhome Pvt. Ltd., Omaxe City. Goniana Road, Bathinda Branch Manager/Authorised Signatory

3. Bathinda Development Authority (BDA) Bhagu Road, Bathinda, through its Chief Administrator

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

Smt.Sukhwinder Kaur, Member

For the Complainant : Sh. Rohit Sharma, counsel for the complainant.

For the opposite party : Sh. Abhey Singla, counsel for opposite party No. 1 & 2.

Sh. Rajdeep Goyal, counsel for opposite party No. 3.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as an ’Act’). In brief, the case of the complainant is that a villa No. 385 measuring 1347 Sq. Ft. (Carpet built up area) has been allotted to her by opposite party Nos. 1 & 2 for a sum of Rs. 22,49,818/- on 30-11-2009, but when the opposite parties offered the possession to her on the basic sale price of the villa, its price was increased to Rs. 26,12,071/- (excluding PLC, club Membership and IFMS charges) and she was forced to pay Rs. 26,12,071/- instead of Rs. 22,49,818/-. The complainant alleged that the opposite parties have agreed to give the possession of the villa within 18 months from the date of allotment i.e. to be given by 31-5-2011 but the opposite party Nos. 1 & 2 offered the possession on 12-3-2012 and delayed the possession by seven months. The opposite party Nos. 1 & 2 have cheated the complainant as the other all Villas in the colony with 3 BHK of same covered area 1347 Sq. ft., same location have been sold for 19,28,137/- as basic sale price including PLC charges, club membership and IFMS charges. The opposite party Nos. 1 & 2 provided a column offsets at back wall of both the bedrooms of the villa in question which creates hindrance for utilization of the bedroom area. The opposite party Nos. 1 & 2 at the time of booking of villa, assured the complainant that the following features mentioned in the brochure will be fulfilled :-

   (a) 24*7 supply of water and electricity

   (b) Wooden flooring in the master bedroom

   (c) Green marble in the staircase

   (d) Antiskid tiles in the kitchen

   (e) 50% area for green zone and roads

   (f) Ready school, dispensary/hospital (medical facility) and club

   (g) Possession within 18 months from the date of booking

   The complainant alleged that none of the above mentioned features have been provided by the opposite party Nos. 1 & 2 and very low quality of bricks and plaster work have been done due to which cracks are appearing on the walls and paint is falling down. The total covered area of the villa in the layout plan which was got approved from BDA/PUDA was 1307 Sq. Yds whereas the opposite parties have increased the covered area of the villa to 1477 Sq. Yds without prior consent or intimation to the complainant for which huge amount has been charged from her. There is also serious multiple horizontal cracks (wide and split open wall thick ) due to poor quality of plaster and cement used by opposite party Nos. 1 & 2. Due to deformation of the structure and window frames, the villa is also detached from the wall (through visible gaps). The low quality electrical cabling used for entire building may hazardous and sometimes may be fatal. The heavy water seepage started from the walls and roof of the villa during the rainy season due to poor civil work which was got repaired by the complainant by paying a huge amount. The complainant further alleged that the opposite party Nos. 1 & 2 had charged Rs. 233/- per Sq. yards as External Development Charges, much more higher than the norms of the Punjab Government which is Rs. 93/- per Sq. yards. The roads which have been built/constructed by the opposite party Nos. 1 & 2 are RCC vacuum departing roads and only within 6/7 months, the cracks and sects have been started developing emerging from many places. The ground floor slab area of the villa is approx. 1000 sq. ft. and the catchment area of the rain/surplus water is also approx. 1000 Sq. ft. which not as per layout plan got approved from BDA and standard engineering practice. The complainant further alleged that the opposite party Nos. 1 & 2 have also promised to provide RO water system in kitchen, which they failed to provide. As per layout plan got approved from BDA, villa has front entrance gate in front of bed room whereas no such gate is provided and the front bed room approach is only through the living/dining room. The complainant further alleged that more than 80% of the consolidated final payments have been recovered from her without giving any possession. The opposite parties have charged Rs. 60,000/- from the complainant on account of delayed payment whereas the possession has been delayed. As per standard specification, the distance between two sewerages shall not be more than 30 meters but the same has been ignored by the opposite party Nos. 1 & 2. Moreover, there is no possibility of maintenance/repair in future as the opposite party Nos. 1 & 2 have not provided any sluice valves in the inlet and outlet sewerage line to STP. The opposite party Nos. 1 & 2 have already charged Rs. 25,000/- as club membership charges from the complainant as well as from all the villa and plot owners in advance and promised that club will be ready at the time of possession but the club is not ready. In the preliminary drawing which was got approved from BDA, the land for religious place has been shown whereas no land has been left spared for religious place and it has been sold by the opposite party Nos. 1 & 2 by converting the land from religious place into residential plots. While allotting the villa, the opposite party Nos. 1 & 2 had promised/agreed to provide commercial house, club house/community centre with swimming pool, gymnasium and provision for indoor games, landscaped garden/children park/jogging track/planted pathways; primary school and medical facility in the township, but they failed to provide any such facility. The height of the boundary wall is not similar and there are four wide gaps which are still to be plugged and no fencing has been done on the boundary walls of the colony. The complainant further alleged that she is doubted that the opposite party Nos. 1 & 2 may force her to get her villa registered despite the shortcomings and deficiencies which are still to be rectified/repaired. Hence, the complainant has filed the present complaint seeking directions to the opposite parties to return a sum of Rs. 2,50,000/- which has been received by opposite party Nos. 1 & 2 illegally and against the actual price of villa and pay her Rs. 7,00,000/- as compensation on account of mental tension, harassment and humiliation alongwith cost.

2. The opposite party Nos. 1 & 2 filed their joint written statement and took preliminary objections that complainant is not consumer as the dispute involved is of civil nature which requires to be adjudicated by the competent civil court after recording detail evidence; the complainant agreed to purchase the villa in question in terms of the allotment letter/agreement i.e. 25-2-2010 duly signed by the parties and as per clause 48 of the said agreement, it was agreed that in the event of any dispute, the same shall be settled through Arbitration. On merits, the opposite party Nos. 1 & 2 have pleaded that the complainant agreed to purchase the villa in question in terms of the allotment letter dated 25-2-2010 wherein it was agreed vide Clause 3 & 4 that the plans are tentative and there may be any change and as a result which, there may be change in the area of the villa at the time of handing over possession. The area of the villa at the time of booking was tentatively agreed to be approx. 1347 Sq. ft./125.14 Sq. meters built on plot area approx. 200 sq.yards /167.23 sq. meters and accordingly, its tentative cost was worked out whereas at the time of handing over possession, the area of the villa was 211.23 sq. yards or 176.62 and super builtup area as 1477 sq.ft so the complainant was charged for enhanced/actual area. The opposite parties have further pleaded that as per the agreement between the parties, the construction/development of the villa/project was agreed to be completed within 18 months from the date of agreement or within extended period of 6 months subject to other villa allottees making timely payments or any other reason beyond the control of the company. The opposite party Nos. 1 & 2 vide clause 29 (c) of the agreement agreed to compensate the complainant @ Rs.5/- per sq. ft. of the built up area for the delay, if any. In the present case, the agreement was executed on 30-11-2009 and as per record the possession was offered to the complainant on 12-3-2012, thus there is no in-ordinate delay on the part of opposite party nos. 1 & 2 in offering the possession. As per the agreement, the complainant was to make payment on time failing which to pay interest on delayed payment and as per the record of opposite party Nos. 1 & 2, at the time of offering possession was liable to pay interest on the delayed payment of Rs. 1,43,881/- whereas the opposite party Nos. 1 & 2 settled for a sum of Rs. 1,00,000/- compensating the complainant by Rs. 44,000/- in lieu of the said short delay. The opposite party Nos. 1 & 2 have further pleaded that they have completed the project after necessary approvals in accordance with the building by-laws by the competent authority. The opposite party Nos. 1 & 2 are having spaces/areas reserved for water works, primary and nursery schools, community centre, police station etc., as per Mega Township policy norms and have already constructed the water works for the township and are in the process of creating other facilities. The opposite party Nos. 1 & 2 have denied that there are cracks in the villa or the paint done at the villa is also of poor quality or there is any threat to the structure integrity due to deformation of the structure or the window frames of the villa is also detached from the wall or there is any low quality of electrical cabling or there is any building hazardous or it may be fatal. It has been pleaded that the complainant has not placed on record any material or evidence to substantiate his allegation of low quality of material or workmanship. The complainant is raising unnecessary issues just to extort undue money from opposite party Nos. 1 & 2. The opposite party Nos. 1 & 2 have completed the project by utilizing best quality of materials as per agreement between the parties. The area under the green is still more than what is actually required as per norms. As there is no such statutory requirement and in conformity with the concept of upholding the secularist stand, the opposite parties have dispensed with the provision for religious place within the township. The opposite party Nos. 1 & 2 incorporated the dispensary facility within the community centre itself considering the convenience, safety and security of the residents in general. The opposite party Nos. 1 & 2 have denied that the height of the boundary wall is not similar or there is gap in the boundary wall or no fencing has been done on the boundary wall of the colony or there is any threat to the life or property of the residents.

3. The opposite party No. 3 filed its separate written statement and pleaded that the agreement was executed between the complainant and the opposite party Nos. 1 & 2. The opposite party Nos. 1 & 2 have already submitted the reply regarding the delay caused in delivery of the possession and have also stated about the compensation paid to the complainant on account of unintentional delay occurred in the delivery of possession which was only due to the non-payment of the amounts in time by some of the allotees including the complainant herself. Moreover, the opposite party Nos. 1 & 2 were responsible for handing over the possession of the villa in question to the complainant and in case of any delay in delivery of possession, the opposite party No. 3 is not responsible for the same. The opposite party No. 3 has further pleaded that the complainant has never raised any objection regarding the alleged short comings at the time of taking delivery of the possession nor complained about the same to opposite party No. 3 and the alleged matter in dispute in inter-se between the complainant and the opposite party Nos. 1 & 2. The opposite party Nos. 1 & 2 have charged the price of the villa from the complainant as per the terms of the agreement and opposite party No. 3 has nothing to do with the same. The opposite party Nos. 1 & 2 got the lay out plan of the Omaxe City revised from time to time as per their requirements and the revised lay out plan of the Omaxe City is duly sanctioned by the Chief Town Planner, Punjab, Chandigarh, according to which opposite party Nos. 1 & 2 have provided the facilities to the residents of the locality. The opposite party No. 3 has further pleaded that it is not responsible to provide any facility to the complainant as the agreement is only between the complainant and the opposite party Nos. 1 & 2 and opposite party No. 3 has been unnecessarily impleaded as party to the present complaint.

4. Before closing the evidence by the complainant, the opposite party Nos. 1 & 2 have moved an application for return of complaint to the complainant for filing the same before proper court/Forum at Delhi or Alwar. It has been stated that the complainant has admitted execution of the agreement-cum-allotment letter vide which the plot in question was allotted to her and as per Clause 48 of the agreement-cum-allotment letter, courts at Alwar and Delhi shall have jurisdiction in all matters arising out of or touching upon and/or in connection with agreement-cum-allotment letter. It is settled law that where two or more courts/Forums have jurisdiction to entertain and decide disputes arising between parties, then parties by agreement can vest jurisdiction in one or two such courts/Forums to try and decide the dispute. The opposite party Nos. 1 & 2 have stated in the application that since the parties have agreed to bind jurisdiction of courts at Alwar & Delhi only, so only courts/Forums at Alwar and Delhi have jurisdiction to decide any complaint arising out of this agreement-cum-allotment letter.

5. The complainant filed reply of application and pleaded that she was under duress when agreement was got signed containing arbitration clause 48 because the opposite parties were in dominating position and they insisted for the same. Legislature by providing the additional remedy u/s 3 of the ’Act’ has tried to take care of such a situation to redress grievances of the small consumer.

6. We have gone through the entire file and heard the arguments of the learned counsel for the parties on the application.

7. The submission of the learned counsel for the complainant is that agreement on territorial jurisdiction between the parties cannot override the provisions of the ’Act’ and this Forum has got the territorial jurisdiction to entertain and try this complaint because the opposite party Nos. 1 & 2 have their branch/sales office at Goniana Road, Bathinda ; the villa is question is situated at Omaxe City, Bathinda; all the payments with respect to the villa were given at branch office opposite party No. 1 at Bathinda; the allotment of the villa was got executed at the branch office of opposite party No. 1 at Bathinda and the stamp papers on which the agreement was got executed between the complainant and opposite party nos. 1 & 2 were got purchased from Bathinda. In support of his submissions, the learned counsel for opposite party Nos. 1 & 2 referred various authorities.

8. On the other hand, the learned counsel for opposite party Nos. 1 & 2 submitted that the complainant has admitted execution of the agreement-cum-allotment letter vide which the plot in question was allotted to her and as per Clause 48 of the agreement-cum-allotment letter, courts at Alwar and Delhi shall have jurisdiction in all matters arising out of or touching upon and/or in connection with agreement-cum-allotment letter. It is settled law that where two or more courts/Forums have jurisdiction to entertain and decide disputes arising between parties, then parties by agreement can vest jurisdiction in one or two such courts/Forums to try and decide the dispute. Since the parties have agreed to bind jurisdiction of courts at Alwar & Delhi only, only courts/Forums at Alwar and Delhi have jurisdiction to decide any complaint arising out of this agreement-cum-allotment letter.

9. A perusal of Allotment letter of the villa in question Ex. C-3 reveals that the complainant has signed the each and every page of said allotment letter which contains 48 clauses. Clause 48 of the said agreement/allotment letter reads as under :-

   “48. All or any disputes arising out of or touching upon or in relation to the terms of this allotment letter including the interpretation and validity of the terms thereof and the respective rights and obligations of the parties shall be settled amicably by mutual discussion failing which the same shall be settled through arbitration. The arbitration proceedings shall be governed by the Arbitration & Conciliation Act, 1996 and/or any statutory amendments/modifications thereof for the time being in force. The arbitration proceedings shall be held at any appropriate location in Delhi/New Delhi, subject to the Arbitration as referred above, the Courts at Alwar and Delhi shall have jurisdiction in all the matters arising out of/or touching upon and/or in connection with the Allotment Letter.”

10. The opposite parties have earlier filed the application under section 8 of the Arbitration and Conciliation Act, 1996, that has been decided by this Forum vide order dated 23-5-2013. Now, the question remains whether District Forum, Bathinda, has territorial jurisdiction to entertain and try the present complaint whereas the agreed jurisdiction is of Delhi or Alwar courts.

11. According to aforesaid clause Courts at Alwar and Delhi shall have jurisdiction in all the matters arising out of/or touching upon and/or in connection with the Allotment Letter. In this regard, the support can be sought from the law laid down by the Hon’ble Supreme Court in Special Leave Petition (c) No. 10184 of 2008 decided on 17-1-2012 titled A.V.M. Sales Corporation Vs. M/s. Anuradha Chemicals Pvt. Ltd., wherein it has been held :-

    “.....though the courts at Vijaywada would also have jurisdiction, alongwith the courts at Calcutta, to entertain and try and suit relating to and arising out of the Agreement dated 23^rd December, 1988 and the Mutual Understanding dated 15^th May, 1989, such jurisdiction of the courts at Vijaywada would stand ousted by virtue of the exclusion clause in the agreement.”

    Further the support can be sought by the precedent laid down by the Hon’ble State Commission, Punjab, Chandigarh, in the case titled Gill Rice and General Mills Vs. Saggu Agricultural Industries & Others 1994 (II) CPJ 272.

12. Therefore, in view of what has been discussed above, this Forum has no territorial jurisdiction to try and entertain the present complaint. Hence, the application of the opposite party Nos. 1 & 2 is accepted. Accordingly, the registry in original is directed to be returned to the complainant against a valid receipt for filing the same before the District Forum having appropriate jurisdiction to try and decide the same, if so desired.

    With utmost regard and humility to the authorities relied upon by the learned counsel for the complainant, they are distinguishable on facts.

    The time spent by the complainant from the date of filing of this complaint till today would be counted towards limitation in view of the judgement of the Hon’ble Supreme Court reported as Trai Foods Ltd., Vs. National Insurance Co. Ltd., and others 2004(13) SCC 656.

13. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced in open Forum

29-07-2013

(Vikramjit Kaur Soni)

President

 

 

(Amarjeet Paul) Member

 

 

(Sukhwinder Kaur)

Member