BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.140 of 2014
Date of institution: 03.03.2014
Date of Decision: 26.08.2015
Deepak Gupta S/o Sh. Jagdish Chand Gupta R/o Gupta Niwas, NH 21, Bamta, Bilaspur (HP)
……..Complainant
Versus
- Paras Panorama Apartment, Paras Buildtech Pvt. Ltd, 11th Floor, Paras Twin Towers ( Tower B), Sector 54, Gold Course Road, Gurgaon through its Senior Manger Sales and Marketing.
- Senior Manger, Sales and Marketing, Paras Panorama Apartment, Paras Buildtech Pvt. Ltd, 11th Floor, Paras Twin Towers ( Tower B), Sector 54, Gold Course Road, Gurgaon.
- Dynasty Build well Private Limited, Corporate Office, 9th Floor, Paras Downtown Centre, Sector Road, Sector 53, Gurgaon through its Authorised signatory.
- Harinder Nagar S/o Sh. V.R. Nagar, Resident of A-211, New Friends Colony, New Delhi-110065.
- The Manager, Paras Panorama, ( A Residential Project of Paras Buildtech), Chandigarh Kharar Highway, Kharar, District Mohali.
- Paras Twin Towers, Sector-54, Gurgaon through its C.E.O. Shri Vikramjit Suchdeva.
- M/s Paras Re Facilities Management Pvt. Ltd. (PRFMPL), Corporate office: 11th floor, Paras Twin Towers, Tower B, Sector 54, Golf Course Road, Gurgaon through its Authorised Signatory.
- Greater Mohali Area Development Authority (GMADA) PUDA Bhawan, Sector 62, SAS Nagar ( Mohali) through its Chief Administrator.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
ARGUMENTS HEARD AND DECIDED BY THE CORAM
Shri Amrinder Singh Sidhu, Presiding Member
Mrs. R.K. Aulakh, Member.
Present: Shri Vivek Aggarwal, counsel for the complainant.
Shri P.K. Rana, counsel for OP Nos. 1 to 7.
Shri G.S. Arshi, cl for OP No.8.
(Amrinder Singh Sidhu, Presiding Member)
ORDER
1. The complainant pleaded in his complaint that on 06.02.2010 the Opposite parties ( for short ‘ the OPs’) agreed to allot a flat comprising in 1381 Sq.ft( approximately) unit no. 001, type 2 B Ground Floor in Tower B-1, situated in Paras Panorama in Tehsil Kharar for a sum of Rs. 24,85,800/- in favour of the complainant. After this the OPs entered into a third party agreement dated 06.02.2010. Later on the OPs forced the complainant to sign tripartite maintenance agreement dated 05.06.2011. The complainant made all the required payments to the OPs as per schedule but the OPs have not delivered the possession to the complainant as per agreement. The possession of the above said plot was delivered to the complainant in December, 2011 but there are deficiencies in basic amenities as following:-
- Electricity supply by generate set.
- Conveyance deed.
- Plastic of Paris on the roof of the flat as per agreement.
- Poor flooring and workmanship of tiles in the flat.
- Poor wooden flooring in the bed rooms.
- No Objection Certificate/Completion Certificate from the concerned Govt. Authorities.
- Occupancy Certificate from the concerned Govt. Authorities.
- Swimming pool.
- Communication between security guards and residents.
- Disposal of solid and water wastage.
- Dampness in the bed rooms.
- Non Standard toilet seats.
- Slippery toilets floor tiles.
- Solid and water wastage supply through pipes which are provided in the kitchen of the flat.
- Solid and water wastage pipes passing through toilets.
The OPs with an intention to book and sell the flats/apartments in the said project allured the consumers/complainant while showing the brochure as well as lay out plan of the said project on the land measuring 11.7 acres and provide spacious apartments for the contemporary living with lash green parks along with facilities of cricket practicing ground, swimming pool. Gym, water bodies, club house , 24 hours security system, ample covered parking , 100% back up etc. as mentioned in the brochure and also shown in the specifications of the apartment.
At the time of sale the OPs developed the Paras Panorama housing project in the area of 11.7 acres but later on the OPs have reduced the project. The reduction of the area in the project leads to deprivation of various facilities as well as open space area which deprived the allottee/complainant to lead peaceful and enjoyable livelihood and thus caused mental tension and harassment. The society of the complainant has became congested and suffocated which is big deficiency for which the complainant is entitled to compensation. The complainant send legal notice dated 30.10.2013 to the OP but the OPs did not respond to it. In view of the above mentioned deficiencies on the part of the OPs complainant is entitled to compensation.
That the complainant earlier filed Consumer Complaint No. 95 of 2012 in this Hon’ble Forum but same was dismissed vide order dated 30.07.2013 on the ground of lack of pecuniary jurisdiction of this Forum. The complainant has filed a rejoinder confining his claim up to Rs. 20.00 lacs in earlier complaint No. 95 of 2012. The said rejoinder was not taken in to consideration by this Hon’ble Forum. Further the liberty was granted to the complainant to avail the remedy of appropriate court of law/Forum having the pecuniary jurisdiction.
Lastly the complainant prayed to this Forum to accept his complaint and direct the opposite party to pay total compensation to the tune of Rs. 15.00 lacs on account of deficiency in service and for not providing the above said amenities to the complainant alongwith interest @ 18% per annum till its realization and also cost of litigation to the tune of Rs. 22,000/-.
It is further prayed that Opposite parties may kindly be directed to:-
- not to urge the maintenance charges from the complainant till its actual completion of his project and if charged then same may be adjusted towards proceeding of IFMS.
- not to charge the maintenance charge till the aforesaid amenities and facilities as mentioned above provided in the project or the completion certificate from the Government authority.
- to provide communication system between apartment and guard room.
- issue the completion certificate/occupancy certificate in favour of the complainant.
2. After the service of the notice OP No. 1 to 7 and OP No. 8 appeared through their respective counsels and filed reply to the complaint. OP No. 1 to 7 took preliminary objection that this complaint is not maintainable in the Hon’ble Forum as the complainant filed similar Consumer Complaint No. 95 of 2012 in this Forum and Hon’ble Forum dismissed the complaint on dated 30.07.2013. The complainant did not filed any appeal against the order of this Hon’ble Forum and complainant also not filed any further complaint in the Hon’ble Punjab State Commission as this Hon’ble Forum has given liberty to avail the remedy in the appropriate Court of pecuniary jurisdiction so in this view of the above facts the present compliant is liable to be dismissed; it is time barred as the OPs have deliver the possession of flat in question on 05.06.2011; the complaint is practically against OP No. 3 only; the complaint has not approached this forum with clean hands; this Forum has no territorial jurisdiction as per clause 56 of Agreement dated 06.02.2010 and allegations made in this complaint are complex and of civil nature; complaint is bad for mis-joinder and non-joinder of necessary parties. On merits also the OP Nos. 1 to 7 denied all the allegations made against them in the complaint and lastly prayed to dismiss this complaint with cost.
OP No. 8 also took preliminary objection in his reply submitting that the complainant is not consumer qua OP No. 8 as not availing any service from it; complaint is non- maintainable; bad for mis- joinder of parties; without any cause of action against the answering opposite party on merits also OP No. 8 denied all the allegations made against them and prayed for the dismissal of this complaint with cost.
3. To succeed in the complaint, the complainant proved on record affidavit Exb.CW-1/1 and tendered in evidence documents Exb.C-1 to C-10.
4. Evidence of the OP Nos. 1 to 7 consists of affidavit of Sh. M.K. Tripathi, authorized Singatory Ex. OP-1/1 and copies of documents Ex.OP-1 to OP-28. Evidence of OP No. 8 is closed by order dated 14.07.2015.
5. We have heard learned counsel for the parties and we have also gone through the file.
6. The complainant namely Deepak Gupta in para No. 18 of the complaint pleaded that the complainant earlier filed consumer complaint No. 95 of 2012 in this Hon’ble Forum but the same was dismissed vide order dated 30.07.2013 on the ground of lack of pecuniary jurisdiction of this Forum. He further pleaded that his rejoinder by which he had confined his claim upto 20 lacs was not taken into consideration by this Forum. OP Nos. 1 to 7 submitted in Para no. 18 of his reply that present complaint is not maintainable in this Hon’ble Forum whereas the complainant filed similar consumer complaint no. 95 of 2012 in this Hon’ble Forum and it dismissed the complaint on 30.07.2013. The complainant also not filed any complaint in the Hon’ble Punjab State Commission as this Forum given liberty to avail the remedy in the appropriate Court of Law/Forum of pecuniary jurisdiction.
7. So the main preliminary issue involved in the present complaint is whether present second complaint is maintainable or not in view of order dated 30.07.2013 in previous complaint no. 95 of 2012.
The complainant has placed on record copy of order of this Forum pronounced in previous complaint no. 95 of 2012 decided on 30.07.2013 as annexure C-11 ( page No. 122 to 134). Though previous complaint was not decided on merits but on preliminary ground of lack of pecuniary jurisdiction yet it has finally decided that this Forum has no pecuniary jurisdiction to try that complaint. In the present complaint, the complainant has stated in para no. 18 of his complaint that this Forum has not considered rejoinder filed under order 23 Rule 1 of CPC by him in his previous complaint No. 95 of 2012 by which he confined his claim upto Rs. 20 lacs.
8. The copy of the order dated 30.07.2013 in previous complaint No. 95 of 2012 clearly reveals that the order of this Forum has finally decided both issues i.e. lack of pecuniary jurisdiction and abandonment of his claim in his rejoinder to bring this complaint with pecuniary jurisdiction of this Forum in previous complaint No. 95 of 2012. Further the perusal of order dated 30.07.2013 in previous complaint no. 95 of 2012 reveals that the findings of the Forum are not on the merits of the complaint but finally decided on the issue of maintenance of the complaint on the ground of lack of pecuniary jurisdiction as well as abandonment of his claim in his rejoinder to bring this complaint with pecuniary jurisdiction of this Forum.
9. Para No. 7 of order of this Forum in previous complaint No. 95 of 2012 is reproduced as below for ready reference:-
“7. On the other hand, learned counsel for the OPs has argued that proceedings before the Consumer Fora are summary in nature and the relief claimed by the complainant has to be treated as the original relief and to determine the pecuniary jurisdiction of this Forum. The amount of compensation as prayed for by the complainant should be the test for determining the pecuniary jurisdiction of this Forum. In the present complaint, the sum total of the claim under various heads as shown in the prayer clause of the complaint comes to Rs.52,22,000/- and, therefore, this is beyond the pecuniary jurisdiction of this Forum and hence the complaint is not maintainable before this Forum. However, the counsel for the OPs has argued on another issue to counter the claim of the complainant regarding abandonment of the claim in his rejoinder as per his reliance on the decision of the Hon’ble National Commission in Consumer Education & Research Society & Anr. Vs. Export Credit Guarantee Corporation of India Ltd. & Anr. (supra). In this regard the counsel for the OPs state that as per the latest decision of the Hon’ble Supreme Court in Lucknow Development Authority Vs. Shyam Kapoor, 2013(2) CLT 5, the District Fora and the State Commissions have not been given any power to set aside the ex-parte orders and powers to review and the powers which have not been expressly given by the statute cannot be exercised by them. As per the counsel for the OPs, there is no such express provision of Order 23 Rule 1 CPC has been provided in the CPA, 1986 and, therefore, the complainant has no right to file rejoinder and abandon part of his claim as prayed in the original complaint. The claim as prayed in the original complaint has to be treated as a claim of relief/compensation sought in the complaint. To counter this contention of the OPs, the complainant has not brought any contrary judgment of the Hon’ble National Commission/Hon’ble Supreme Court of India. Reliance of the complainant on the decision of the Hon’ble National Commission in Consumer Education & Research Society & Anr. Vs. Export Credit Guarantee Corporation of India Ltd. & Anr. (supra) is prior in time than the latest judgment of the Hon’ble Supreme Court in Lucknow Development Authority Vs. Shyam Kapoor (supra). Therefore, we are in full agreement with the contention of counsel for the OPs and by placing reliance upon the latest decision of the Hon’ble Supreme Court, we hold that the complaint is beyond the pecuniary jurisdiction of this Forum and hence not maintainable in its present form before this Forum”.
10. Hence it is very clear that this Forum has finally decided on both the issues that this Forum has no pecuniary jurisdiction and Order 23 Rule 1 of C.P.C. is not applicable to District Consumer Forum in previous complaint No. 95 of 2012.
11. The complainant has neither filed appeal against that order of this Forum nor filed the complaint before appropriate Court of Law/Forum having pecuniary jurisdiction. The order of this forum in previous complaint No. 95 of 2012 has attained finality as no appeal is preferred against that order. Moreover complainant again filed the present second complaint in this Forum where he has confined his claim to the amount less than 20 lacs to fall within pecuniary jurisdiction of this Forum. Once the complainant is not allowed to confine its claim in previous complaint then he will not be allowed to do so in second complaint because this issue has already finally decided by this Forum in previous complaint No. 95 of 2012. The relief which was earlier denied in previous complaint cannot be granted in second complaint.
12. Therefore, present second complaint is not maintainable; hence complaint is dismissed on above stated ground.
Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
August 26, 2015.
(Amrinder Singh Sidhu)
Presiding Member
(Mrs. R.K. Aulakh)
Member
