Delhi

StateCommission

CC/590/2014

ASHOK KUMAR DIWAN - Complainant(s)

Versus

PUMA RALTORS PVT. LTD. - Opp.Party(s)

16 Aug 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing: 16.08.2018

 

Date of decision:21.08.2018

 

Complaint No. 590/2014

 

IN THE MATTER OF:

 

Sh. Ashok Kumar Diwan

S/o Late Sh. Jiwan Lal Diwan

C/o Diwan and Company,

House no.2 (LGF),

NRI Colony, New Delhi-110019                                      ….Complainant                                                   

VERSUS

 

Puma Realtors Pvt. Ltd.

Having its registered office at

5, Dhanraj Chambers

First Floor, Satbari,

New Delhi-110074

And its corporate office at

SCO 6-7-8, Sector 9-D,

Madhya Marg,

•  

 

 

HON’BLE  SH. O.P. GUPTA, MEMBER(JUDICIAL)

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER (GENERAL)

 

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Sh. Vikram Dewan, Counsel for the Appellant

                   Sh. Gagan Gupta, Counsel for the OPs

PER:           ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

1.           This complaint has been filed by Sh. Ashok Kumar Diwan, resident of Delhi, for short complainant before his commission under Section 17 of the consumer Protection Act 1986 (the Act) against Puma Realtors Pvt. Ltd, hereinafter referred to as OP alleging deficiency of service on the part of OP in not handing over the possession of a plot booked by him despite agreed period of time having elapsed and despite due payment having been made as per schedule, and praying for relief as under:-

 

1. To complete the development work and hand over the physical possession of the plot within earliest possible time.
2. Not to raise any further demands or to cancel the allotment of the complaint until the OP is in position to hand over physical possession of the said plot. The balance amount payable towards cost without any interest should be demanded only at the time of actual hand over of physical possession simultaneously with the transfer of legal title of the said plot.
3. Send regular updates by way of independently certified progress reports and actual site photographs together with information on the specific reasons for delay in development of the said project and the revised timelines for delivery of possession.
4. Pay interest @ 24% per annum on the entire amounts paid to OP for the entire of delay commencing from the expiry of 24 months from allotment till the actual date of handing over of physical possession of the plot in question in order to compensate the complainant for increase in costs of construction and loss of rent due to the delay in handing over of possession.
5. Pay Rs. 5,00,000/- towards punitive damages for gross negligence gross deficiency in services and unfair trade practices and for denying the legitimate rights of the complainant.
6. Pay Rs. 20,000/- towards travel expenses and living expenses incurred by the complainant in visiting Mohali to verify/oversee the progress and development of the said project.
7. Award costs of the present proceedings in favour of the complainant and against the OP to the tune of Rs. 1,00,000/-
8. By way of a restraining order, not to cancel the allotment of the said plot until the disposal of this complaint by this Hon’ble Forum.
9. Pass such other further order(s) as this Hon’ble Forum may deem fit and proper in the facts and circumstances of the case, in interest of justice, equity and good conscience.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant with a view to construct a house as his retirement home, booked a plot of land in the project of the OP namely, IREO HAMLET” at sector 98, Mohali, Punjab, by paying the booking amount of Rs. 6,50,000/- on 16.02.2011. Total sale consideration for the purpose was Rs. 62,96,100/-. Subsequently an allotment letter was issued on 29.04.2011 containing the payment schedule as also the assurance of the OP to deliver the possession of the plot within a period of 24 months which means latest by 28.04.2013. Payment plan as agreed to was as under:-

Payment plan

On booking	Rs. 576357/- 10% of BSP
With allotment	Rs. 288179/- 5% of BSP
Within 3 months of allotment	Rs. 975741/-15% of BSP+25%OF PLC, EDC
Within 6 months of allotment	Rs. 975741/-15% of BSP+25%OF PLC, EDC
Within 9 months of allotment	Rs. 975741/-15% of BSP+25%OF PLC, EDC
Within 12 months of allotment	Rs. 975741/-15% of BSP+25%OF PLC, EDC
Within 15 months of allotment	Rs. 576357/-10% of BSP
Within 18 months of allotment	Rs. 620211/-10% of BSP + 50%of IFMS & 100% additional facilities charges
On possession	Rs. 332032/- 5% of BSP + 50% of IFMS

 

4.           The relevant clause of the agreement regarding handing over possession of the plot as under:-

 

Subject to force majeure, as defined herein, and further subject to the allottee having complied with all its obligations under the terms and conditions of this agreement, and not being in default of any provision of this agreement including but not limited to the timely payment of all dues and charges including the total sale consideration, registration charges, stamp duty and other charges, and also subject to the allottee having complied with all formalities or documentation as prescribed by the company, the company proposes to hand over the possession of the said plot to the Allottee within a period of 24 months from the date of execution of this agreement. The allottee further agrees and understands that the company shall additionally be entitled to a period of 6 months after the expiry of the said commitment period.

 

5.           Secondly as per clause 19 of the allotment letter OP would be within its rights to cancel the allotment and terminate the agreement in the manner prescribed under clause 19.2, in the event the allottee neglects, omits, ignores or fails in the timely performance of its obligations agreed to or stipulated therein for any reason.
6.           The complainant submits that he made the payment as per schedule but despite the agreed period having been elapsed, the possession was not handed over. He has accordingly alleged deficiency of service on the part of OP on the grounds indicated hereinafter:

 

1. that OP failed to hand over the possession of said plot within a period of 24 months from the date of allotment (29.04.2011).
2. that OP failed to provide the certified progress reports and actual site photographs in the respect of the said project.
3. that the OP failed to inform the specific reason for the delay in development of the said project and the revised timelines for delivery of possession.
4. that the OP threatened the complainant to unilaterally cancel the allotment by taking recourse to clause 19.1 of the agreement. However failed to appreciate that “TIME IS ESSENCE NOT ONLY FOR ONE PARTY BUT FOR BOTH PARTIES TO THE CONTRACT”, particularly in light of the bonafide objections and disputes already raised and brought on record by the complainant.
5. that the OP failed to recognize the legitimate concerns of the complainant. In the contrary the OP through its reply dated 05.05.14 has flatly denied all the legitimate concerns and demands raised by the complainant.

 

7.           The complainant has further submitted that till date the complainant has made 4 payments on 16.02.2011 (Rs. 6,50,000/-), 28.05.2011 (Rs. 2,14,536/-), 17.09.2011 (Rs. 9,75,741.08/-), and 14.05.2013 (Rs. 9,79,612.20/-), respectively, aggregating to a total sum of Rs. 28,19,889.28/- which amount accounts for 45% of total cost of the plot of Rs. 62,96,100/-.
8.           The worse came to the complainant when the OP issued a demand notice for payment which according to the complainant was contrary to the agreed payment schedule. The said demand notice was coupled with a threat that in the event of non-receipt of the amount as sought for, the allotment would stand cancelled.
9.           In these circumstances this complaint has been filed for the redressal of his grievances. OPs were noticed and in response thereto they had filed reply resisting the complainant both on technical ground as also on merit. The complainant has filed his rejoinder and evidence by affidavit reiterating his averments contained in the complaint and rebutting the allegations of the OPs contained in the written statement.
10. In the meanwhile the complainant had moved an application on 23.08.2017 praying for additional relief as under:-

 

“dd. ALTERNATIVELY the OP may be directed to refund the admitted amount of Rs. 28,19,889.28/- with interest @ 24% per annum from the date (s) the respective amounts comprised in the said sum of Rs. 28,19,889.28/- were received by the OP”.

 

11. The said application was disposed of by our orders dated 12.10.2017 and the relevant portion of which is as under:-

 

Initially the complainant sought possession of the plot. According to complainant, OP informed about cancellation of allotment, while filing the WS. Thus, now the complainant wants to incorporate alternative relief of refund of amount. The application is not likely to introduce any new set of facts. It is simply clarificatory in nature. Even without application, court can take note of subsequent event and mould the relief as necessary. The application is allowed.

 

12. Initially during the pendency of the case some element of settlement was discussed but finally this could not work and therefore the matter was listed before us for final hearing on 16.08.2018 for disposal on merit when the counsel for both sides appeared and advanced their arguments. We have perused the records of the case and given a careful consideration to the subject matter.
13. In the first instance the ld. Counsel for the OP while arguing against the relief sought for for the possession of the plot at Mohali, Punjab, stating relying on the judgment of the Hon’ble NCDRC in the matter of Girish Ahuja vs. Pancheel Colonizers Pvt. Ltd., CC-108/2018 dated 16.03.2018, holding that in the cases relating to the immoveable property the jurisdiction to entertain the lis lies with the Forum within whose jurisdiction the subject property is located, that this Commission lacks the territorial jurisdiction to hear and to dispose of the matter since the immovable property is based at a place outside Delhi and while arguing against the prayer for refund, strongly submitting that the aggregate value in the transaction and the compensation claimed since exceeds Rs. One Crore, relying on the provisions contained under Section 17 (1)(a) (i) of the Consumer Protection Act 1986 read with the orders of the Three Member Bench of the Hon’ble NCDRC in the matter of Ambrish Kumar Shukla versus Ferrous Infrastructure Pvt. Ltd. in CC-97 of 2016, decided on 07.10.2016 as reported in I [017] CPJ 1 (NC) this Commission would be handicapped to hear this case for want of pecuniary jurisdiction.
14. Section 17(1)(a)(i) of the act posits as under:

 

Jurisdiction of the State Commission- Subject to the other provisions of this Act, the State Commission shall have jurisdiction.

Complaints where the value of the goods or services and compensation, if any, claimed [exceeds rupees twenty lakhs but does not exceed rupees one crore].

Appeals against the orders any District Forum within the State.

 

15. The orders of the Hon’ble NCDRC referred to above is indicated hereinafter:

 

In a complaint instituted under Section 12(1) (c) of the Consumer Protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation claimed in respect of such consumers.

 

16. Having analysed the provision of the act and the legal position as settled we may examine the facts of the case at hand. The total sale consideration in the given case is Rs. 62,96,100/-. If the compensation and the interest claimed are added to the agreed value of the plot of land, keeping in view the calculation furnished by the OPs the total amount would be Rs.1,06,46,871/- putting indisputably clouds on the pecuniary jurisdiction of this Commission. The complainant in his calculation has however furnished that the amount involved in the case would be Rs. 87,72,954/- which amount is less than Rs. One Crore in which case there is no cloud on the pecuniary jurisdiction of this Commission to hear and to dispose of the complaint but on examination and on scrutiny of the calculations regarding quantum of amount involved in this case, furnished by both sides, we reach to an inescapable conclusion that the calculation furnished by OPs indicating the quantum involved in the complaint as more than Rs. One Crore, suffers from no infirmity and is as per the provision of the Act read with the ratio of the judgment in Amrish Shukla’s case (Supra) and if that be the case, this Commission lacks the pecuniary jurisdiction to adjudicate the complaint.  
17. Accordingly we order return of the complaint to file it before the forum enjoying the jurisdiction therefor, granting liberty to the complainant to seek the exclusion of time for the purpose of limitation in terms of the orders of the Hon’ble Apex Court in the matter of Laxmi Engineering works versus PSG Industrial Institute-(1995) 3 SCC583.
18. Ordered accordingly.
19. A copy of this order be forwarded to both the parties to the case free of cost as statutorily required.
20. File be consigned to record.

                      

 

(ANIL SRIVASTAVA)                                                              (O.P.GUPTA)

       MEMBER (GENERAL)                                                 MEMBER (JUDICIAL)

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