BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.652 of 2014
Date of institution: 11.11.2014
Date of Decision: 17.06.2015
Varun Mahajan son of B.M. Mahajan, resident of House No.355, Sector 9-D, Chandigarh.
……..Complainant
Versus
Pearls Infrastructure Project Ltd., SCO No.6, Sector 69, Mohali (Punjab) through Sr. Marketing Manager.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K. Aulakh, Member.
Present: Shri B.M. Mahajan, GPA and father of the complainant.
Shri Rohit Goswami, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to the Opposite Party (for short ‘the OP’):
(a) to refund the amount of club membership, IFMS plus service tax with interest @ 24% per annum.
(b) to pay interest @ 24% per annum on maintenance charges, electrification charges, administrative charges w.e.f. 30.06.2014 till start of construction of the plot.
(c) to pay Rs.2,00,000/- for unfair trade practice and deficiency in service.
(d) to pay Rs.1,00,000/- towards mental tension and harassment.
(e) to pay Rs.30,000/- towards legal cost.
The complainant’s case is that he through his father and GPA holder purchased plot measuring 250 sq. yards in Sector 104, Mohali from the OP in January, 2010. The payments were made in periodical installments without any interest except two installments which were delayed for which on the demand of the OPs the complainant made payment of Rs.39,239/- as interest vide receipt Ex.C-3. Plot Buyers Agreement Ex.C-2 was signed on 04.03.2010. The OP also raised demands of Rs.35,000/- plus service tax towards club membership and IFMS charges of Rs.25,000/- plus service tax which were paid by the complainant on 31.07.2010 and 23.07.2010 respectively. The club facility is not available at the site and the IFMS was collected by the when there was nothing to maintain. The complainant vide letter dated 27.12.2013 Ex.C-4 followed by reminder dated 09.09.2014 Ex.C-5 requested to the OP to refund these amount with interest. The OP also demanded vide letter dated 16.06.2014 Ex.C-6 Maintenance Sinking Fund @ Rs.63/- per sq. yard for five years, administrative charges of Rs.15,000/- plus service tax, electrification charges @ Rs.300/- per sq. yards plus service tax and Monthly Maintenance Charges of Rs.2/- per sq. yard. The OP coerced the complainant to pay all these charges otherwise the possession of the plot would not be handed over. The complainant vide legal notice dated 20.02.2014 requested the OP not to demand these charges but the OP replied negatively. Thus, on these allegations, the complainant has filed the present complaint.
2. The OP in the reply has pleaded in the preliminary objections that the allegations made by the complainant are false and frivolous. The matter relates to complicated questions of law which have to be adjudicated by the competent court of law by leading evidence. The complaint is bad for non joinder and misjoinder of parties. The complainant has not approached this Forum with clean hands. The complainant had not made the payments as per agreement signed between the parties. This Forum also does not have territorial jurisdiction to try the complaint as the contract between the parties was signed at New Delhi. The complaint filed by the GPA is not maintainable as the GPA cannot be termed as a consumer as per Consumer Protection Act, 1986. The complainant approached the OP for purchase of plot No.B-1120 measuring 250 sq. yards located in Sector 104, Mohali at a basic price of Rs.36,25,000/- alongwith other charges to be paid as mentioned in the agreement i.e. Preferential Location Charges, cost of electric connection which includes electric wiring installation of electric substation, laying of transmission line, expenses incurred on other allied work which is not included in the basic sale price of the plot. The complainant has given undertaking dated 04.07.2014 that he will comply all the terms of the agreement and further will make all the payments as mentioned in the agreement. After perusing and understanding the terms and conditions of the agreement, the complainant has signed the same with his own free will. The complainant is bound to pay charges apart from internal services if any. In case of any increase in the amount of EDC the same shall be to the account of the allottee and conveyance deed charge has to be paid by allottee. Further the allottee had to pay charges for value added services such as maintenance of parks green belt arrangement of sanitation, horticulture, street light, security and IFMS i.e. Rs.100/- per sq. yard. The complainant had paid Club Membership Registration Charges and Club Development Expenses as per terms and conditions of the agreement. On merits, it is pleaded that the complainant has not made the payments in time. Besides this he had also failed to make other payments as reflected in the Statement of Account. The OP had issued various letters dated 30.11.2012, 03.06.2013 and 09.09.2013 to the complainant for completing the formalities enabling the OP to handover the possession. The complainant had taken the possession on 07.07.2014. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. Evidence of the complainant consists of affidavit of his GPA Ex.CW-1/1; affidavit of Amarjit Chadha Ex.CW-1/2 and copies of documents Ex.C-1 to C-11.
4. Evidence of the OP consists of affidavit of Gurpinder Brar, its Sr. Manager (Marketing) Ex.OP-1/1 and copies of documents Ex.OP-1 to OP-8.
5. We have heard GPA of the complainant and learned counsel for the OP and gone through their written arguments.
6. Admittedly the complainant is in possession of the property through his GPA. Admittedly the complainant has paid full and final payment on 30.06.2014 vide statement of account being part of Ex.C-6 i.e. letter dated 16.06.2014 possession reminder. Admittedly the complainant has signed an undertaking dated 04.07.2014 Ex.OP-2 to pay any amount due and indemnify the OP at all times from all claims, losses, damages, actions and proceedings of any nature in respect of the possession of the property having handed over to him by the OP. After signing the said undertaking the complainant vide Ex.C-7 dated 08.09.2014 raised certain objections regarding the charging of various amounts on account of club membership, service tax, non availability of club facility and interest charged and sought refund the excess amount charged and compensation for indulging into unfair trade practice i.e. charging of club fee and not providing the facility. Since the said letter remained unanswered in the hands of the OP, the complainant thereafter has filed the present complaint.
7. Before we consider the issue on merits, it will be appropriate to address the preliminary objection raised by the OP. The first preliminary objection is regarding locus standi of the GPA who has filed the present complaint on behalf of the complainant. It is admitted that the complaint has been filed by the complainant through his father the GPA holder. As per the OP, a complaint filed through GPA is not maintainable and in support of its argument, the OP has relied upon the order of Hon’ble Haryana State Consumer Disputes Redressal Commission in HUDA & another vs. Tajinder Sachdeva First Appeal No.416 of 2009 decided on 27.09.2012. The order of the Hon’ble Haryana Commission is based on the support and strength of the order of the Hon’ble Supreme in Suraj Lamp & Industries Pvt. Ltd. Vs. state of Haryana & another, SLP No.13917 of 2009 decided on 11.10.2011 wherein the Hon’ble Supreme Court has held that the GPA cannot be used to transfer immovable property. We are not in agreement with the contention of the OP in this regard as the complainant through present GPA is not seeking transfer of immovable property. The subject matter of the present complaint is regarding deficiency in service and unfair trade practice on the part of the OP qua the property of the complainant. Further the perusal of Suraj Lamp & Industries Pvt. Ltd. Vs. state of Haryana & another, (supra) clearly reveals the difference of GPA executed for sale agreements and transfer of property on the basis of GPA and the general power of attorneys executed in genuine transactions. A person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance or even may enter into a development agreement with the land developer or a builder for developing the land either by forming plots or by constructing apartments building and in that behalf execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyance in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. The observations of the Hon’ble Bench in Suraj Lamp & Industries Pvt. Ltd. Vs. state of Haryana & another (supra) are not intended to apply to such bonafides/genuine transactions, meaning thereby a genuine power of attorney holder of a spouse, son, daughter, brother, sister or a relative to manage his estate or issues relating to his estate is differentiated by the Hon’ble Supreme Court as bonafides/genuine transactions executed by the GPA on behalf of the executant. In the present complaint the GPA being the father of the complainant has locus standi to file the present complaint on his behalf and has rightly instituted the present complaint. The complaint is thus maintainable as the objection of the OP regarding maintainability is not sustainable.
8. The title of the complaint shows that the complaint has been filed by the complainant. However, the same has been signed by the GPA of the complainant who has also produced the copy of GPA Ex.C-1. Technically the title of the complaint is defective but such technical impairments are to be ignored to protect the interest of the consumer as has been held by the Hon’ble National Commission in ICICI Bank Ltd. Vs. Rajendra Kumar Agarwal, 2014 (2) CLT 256 (NC).
9. We have perused the evidence adduced by the complainant. Except for Ex.C-7 all other documents are admitted by the OP. In fact the issues raised in Ex.C-7 regarding incomplete club building and non existence of club facility, the complainant has proved having sent the Ex.C-7 by registered post AD and the existence of incomplete club building and non existence of club facility has been duly proved by the complainant through his affidavit. On the other hand, the OP has admitted having receipt the club membership in its reply in Para 7 whereas the stand of the OP is absolutely silent about the completion of the club building and existence of club facility.
10. Therefore, the complainant has proved existence of incomplete club building and non existence of club facility despite having paid the club fee of Rs.35,000/- in the year 2010, the act of the OP in not completing the construction of club building and providing the club facility to the complainant, is an act of deficiency in service and unfair trade practice on its part.
11. Regarding other charges i.e. service tax, IFMS and maintenance charges, we have gone through the contents of buyers agreement and the statement of account attached with Ex.C-6, the said charges are legally leviable by the OP and the OP has rightly reflected the same in the statement of account. Once the complainant has paid these charges without any protest as per his own admission on the statement of account attached with Ex.C-6, the complainant is estopped from agitating on this account as the terms and conditions of the buyers agreement are sacrosanct and binding on the parties as the complainant has already paid the said amount without protest and is further bound by his own undertaking Ex.OP-2. In this regard in support of his contention, the OP has relied upon the judgment of Hon’ble Supreme Court in M/s Suraj Mal Ram Niwas Oils Mills Vs. United India Insurance Co. & others, AIR 2010(95) AIC 28. Thus, the allegation of charging of excess amount or illegal amount on account of service tax, IFMS, maintenance charges etc. are devoid of any merit.
12. Since the complainant has been able to prove his complaint only on one ground that the club building is still under construction and club facilities and services are still not available, despite having paid the club membership fee since 2010, the act of the OP in this regard is held to be unfair trade practice and deficiency in service. Therefore, on this account the complaint deserves to be allowed and the complainant deserves to be compensated.
13. In view of above discussion, the complaint is allowed with the following direction to the OP to:
(a) to complete the construction of the club house and make it fully operational for the use and benefits of the residents within a period of three months from the date of receipt of a certified copy of this order.
(b) further to pay to the complainant interest @ 12% per annum on the deposited amount of Rs.35,000/- as club membership till the club facility is made operational to the use and benefit of the complainant.
(c) pay a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) for harassment, mental agony and costs of litigation.
Compliance of the directions at (b) and (c) above be made within a period of thirty days from the date of receipt of a certified copy of this order. 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.
June 17, 2015.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
