Punjab

StateCommission

A/1506/2014

Purnima Prashar - Complainant(s)

Versus

S.M.V Agencies Pvt. Limited - Opp.Party(s)

Arun Sharma

27 May 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1506 of 2014

 

                                                          Date of Institution:  17.11.2014                 

                                                          Date of Decision :  27.05.2015

 

 

Purnima Prashar W/o Sh. Pankaj Parashar, resident at 2539, LEXINGTON LN NAPER VILLE IL 60540, through her General Power of Attorney Sh. Vinod Kumar Sharma S/o Sh. V.C. Sharma aged 70 years, R/o House No.614, Sector 36-B, Chandigarh.                                                                                                                                                                                                               …..Appellant/Complainant

         

                                      Versus

 

1.       S.M.V Agencies (P) Ltd., Sunrise Greens, SCF 35-36, Jaipuria's          Sunrise Plaza, VIP Road, Zirkpur, District SAS Nagar, Mohali    (Punjab)- 140603, through its Managing Director.

 

2.       S.M.V Agencies (P) Ltd., having its registered office at 1862,     Mahalaxmi Market, Bhagirath Place, Chandni Chowk, New Delhi,      through its Managing Director.

 

                                                          …..Respondents /Opposite Parties

 

         

First Appeal against order dated 04.09.2014 passed by the District Consumer Disputes Redressal Forum, Sri Mohali.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Vinod Kumar Gupta, Member

 

Present:-

 

 

          For the appellant                       :         Sh.Arun Kumar, Advocate

          For the respondent                    :         Sh.Kabir Sarin, Adbvocate.

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 04.09.2014 of District Consumer Disputes Redressal Forum Mohali, dismissing the complaint of the complainant. The  instant appeal has been preferred against the same by the complainant now appellant.

2.      The complainant Purnima Prashar has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the allegations that OPs had entered into agreement under Time Linked Plan, vide agreement dated 27.11.2006. As per terms of the agreement, she was to get possession of the flat on 31.10.2008  on payment of Rs.1,67,507/-. She made the payments as per schedule, but the OPs charged Rs.1,19,363/- as interest on delayed payment. The amount of Rs.1,72,683/- (including service tax) was paid by her on 13.12.2012 on receipt of call letter from the OPs. The possession of the flat was handed over to her on 22.09.2013. As per Clause 30 of the agreement, in case of delay in possession, the allottee was to get compensation of Rs.5/- per sq. ft of the super area per month for the period of delay. The OPs had given this compensation only for the period 01.02.2009 to 20.09.2012. There is, thus, delay of about 4 years and 7 months in handing over possession of the flat to her from the stipulated date i.e. 31.10.2008. The OPs had not informed her about any reason for delay in possession. The OPs had charged interest @ 18% per annum for delay in payment for 2 days. The complainant has, thus, filed the present complaint by directing the OPs to refund Rs.1,19,363/- wrongly charged as interest on delayed payment with penalty amount of Rs.5/- per sq. ft per month of the super area for the period of delayed possession,  Rs.2,00,000/- as compensation for mental harassment, besides @18% interest per annum on the amount deposited by complainant from 1.11.2008 to 22.09.2013  along with Rs.22,000/- as costs of litigation.

3.      Upon notice, OPs filed written reply and contested the complaint of the complainant. The OPs raised preliminary objections in written reply that the Forum has no territorial jurisdiction to try the matter, in as much as allotment was executed in Delhi and the allotment stipulates the jurisdiction at Delhi exclusively. The reliefs claimed by complainant are beyond the scope of specific terms and conditions of the allotment. The complainant himself settled the accounts and authenticated the same by appending her signatures thereon and has accepted the possession at a belated stage. The issues pointed out by the complainant are minor cleaning and touching up jobs and had been settled within days of the same being raised. Vide letter dated 03.10.2013, the complainant took possession of the flat by giving waiver of holding charges. On merits, it is pleaded that interest charged for delayed payment was as per terms and conditions of the allotment. All the delays were duly compensated as per terms and conditions of allotment. Offer of possession was given in December 2012 along with penalties as attracted under terms and conditions of the allotment. As per clause 30 of the allotment letter, a penalty amount of Rs.5/- per sq. ft. per month is stipulated. The OPs further denied any unfair trade practice on its part and prayed for dismissal of the complaint.

4.      The complainant tendered in evidence the affidavit of the complainant Purnima Prashar Ex.CW-1/1, copy of special power of attorney Ex.C-1, copy of allotment letter Ex.C-2, final settlement of unit no.F-402 Ex.C-3, copy of e-mail Ex.C-4, copy of letter regarding handing over of Unit No.F-402 Ex.C-5, payment of penalty charges for delayed possession of flat no.F-402 Ex.C-6. As against it, OPs tendered in evidence affidavit of Sh. Ankur Garg Officer of OPs Ex.OP-1/1. On conclusion of evidence and arguments, the District Forum, Mohali, dismissed the complaint of the complainant, let the complainant is directed to approach the Civil Court for redressal  of his grievances. Dissatisfied with the order of the District Forum Mohali dated 04.09.2014, the complainant now appellant has preferred this appeal against the same.

5.      We have heard learned counsel for the parties at admission stage of the appeal and have also examined the record of the case. The evidence on the record is required to be adverted to by us on the record. Ex.C-1 is special power of attorney given by Purnima Sharma, complainant to her father Sh. Vinod Kumar Sharma. Sh. Vinod Kumar Sharma is special power of attorney holder of the complainant, which is duly binding on the complainant being principal of the power of attorney holder. Ex.C-2 is allotment letter addressed to Purnima Sharma complainant with all terms and conditions of the flat, Ex.C-3 is final settlement of unit No.F-402, which is signed by the complainant, Ex.C-4 is copy of e-mail, Ex.C-5 is regarding handing over of Unit No.F-402, Ex.C-6 is regarding payment of penalty charges for delayed possession of Flat No.F-402 in Sunrise Greens Zirkpur Punjab.. Ex.C-3 is final settlement of the matter between the parties; it is signed by the complainant. The matter has been settled between the parties finally by means of this final settlement, which is duly signed by the complainant on the record. The complainant has not denied her signatures on Ex.C-3. The net payable amount by the complainant is Rs.3,38,920/-. The District Forum took document Ex.C-3, as sheet anchor of the case, in holding that once final settlement has been arrived at between the parties and complainant took possession of the flat  and as such complainant has ceased to be a consumer thereafter. The reply filed by Sh. Ankur Garg in the shape of affidavit is Ex.OP-1/1 on the record in this case.

6.      In view of our above-referred discussion, we find that by virtue of document Ex.C-3, the final settlement of account has been effected and it was duly authenticated by the complainant by signing it. The complainant proceeded to take possession of the flat and thereby waived off other claimed in the final settlement of the account. On this point, the District Forum relied upon law laid down by the Hon'ble Apex Court in "Banglore Development Authority Vs. Syndicate Bank, reported in II(2007) CPJ 17(SC)" that once the delivery has been accepted by the complainant, the question of awarding any interest on the price paid by her from the date of deposit to the date of delivery of possession does not arise. The Apex Court has also held in this authority that in the matter of delay in delivery of possession of the housing, if possession is delivered during the pendency of the complaint at agreed price and such delivery is accepted by allottee, question of awarding interest to allottee who had benefit of appreciation of price of house, does not arise. If delay is for justifiable reasons, allottee is not entitled to interest or compensation, as it has benefit of appreciation in value of the flat/apartment.

7.      We, thus, conclude that once complainant has accepted delivery of the flat and had benefit of appreciation of the price therein, hence she is not entitled to any interest as observed by Apex Court. Even otherwise, we concur with the findings of the District Forum that once property has been handed over and complainant has signed the final settlement Ex.C-3 and took possession of the allotted property, therefore, the matter, which is beyond the settlement of account, is cognizable by the Civil Court only. We do not find any illegality or material infirmity in the order of the District Forum justifying to take any contrary view. We dismiss this appeal at the admission stage only holding the complainant has ceased to be a consumer of OPs after delivery of the possession of the allotted property and settlement of the final account by her.

8.      In the light of our above discussion, there is no ground to admit the appeal for regular hearing. Consequently, appeal is dismissed at admission stage only.

9.      Arguments in this appeal were heard on 25.05.2015 and the order was reserved. Now the order be communicated to the parties.

10.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

           

                                                                          (J. S. KLAR)

                                                              PRESIDING JUDICIAL MEMBER

                       

                                               

                                                               (VINOD KUMAR GUPTA)

                                                                             MEMBER

 

May 27  2015.                                                                

(ravi)