Punjab

StateCommission

A/1507/2014

Vinod Kumar Sharma - 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.1507 of 2014

 

                                                             Date of Institution:  17.11.2014                               

                                                            Date of Decision :   27.05.2015

 

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 Vinod Kumar Sharma 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 (allotment letter along with terms and conditions of the flat) in the project Sunrise Greens Zirkpur developed by the OPs, vide agreement dated 27.06.2007 Under Down Payment Plan-A. The complainant was allotted flat no. 0504 by the OPs, vide allotment letter dated 27.06.2007. The complainant booked flat on down payment Plan-A and payment schedule is 12% at the time of booking, 75% within 45 days of booking, 8% rebate, 5% at the time of possession. The complainant made payments, as per schedule and OPs acknowledged them. The OPs charged Rs.10,674/- as interest from the complainant. Booking amount of Rs.3,14,838/- paid on 06.06.2007, first installment of Rs.19,67,743/- was paid on 17.10.2007. The payment was to be paid within 45 days of the booking of the flat. OPs charged the amount of Rs.10,674/- on account of delayed payment from the complainant. The OPs charged amount of  Rs. 1,35,237/- (including service tax) at the time of taking possession of the flat from the complainant on 12.12.2012. The possession of the flat was handed over to the complainant on 31.07.2013. As per allotment letter and clause no.30 of the agreement entered between the parties, the possession was to be delivered to the complainant on  31.10.2008  or earlier and in case of delay, the allottee was to get a compensation of Rs.5/- sq. ft of the super area per month for the period of delay i.e. up to 31.07.2013. The OPs in the final settlement chart has given compensation only for the period 01.11.2008 to 30.09.2012. There is extra ordinary delay of about four years nine months in handing over the possession of the flat to the complainant from the agreed date i.e. 31.10.2008. The OPs had not communicated any reason therefor to complainant. The OPs charged interest @ 18% for the alleged delayed payment for a period of 11 days from the complainant. The complainant had paid Rs.22,82,581/- i.e. 95% of the costs of the flat before 31.10.2008 (except 5% of the amount to be paid at the time of possession). The complainant has, thus, filed the present complaint directing the OPs to pay the interest amount of Rs.10,674/- wrongly charged from the complainant on account of alleged delay in payment of first installment. The complainant has also sought compensation of Rs. 3,02,680/- as calculated for the period 01.11.2008 to 30.09.2012, whereas the possession of the flat was given on 31.07.2013. The complainant has also sought for payment of Rs.1,35,237/- including service tax, which was to be paid to the OPs at the time of taking possession of the flat and same was paid on 12.12.2012 and the possession of the flat was handed over on 31.07.2013. The complainant has also prayed for compensation of Rs.2 lac for mental harassment and Rs.33,000/- as costs of litigation.

3.      Upon notice, OPs appeared and 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 only, in case of any dispute between the parties. The complainant is not entitled to relief claimed under law. All such claims of interest @ 18% are beyond the scope of the specific terms and conditions of the allotment and further involve complicated questions of facts and law, which cannot be adjudicated in summary proceeding by Consumer Forum. The complainant settled the accounts and authenticated the same by appending his signatures thereon and has chosen to proceed with the possession of the flat in question at a belated stage for reasons best known to him. The complainant has attempted to extract undue compensation for which, he is not entitled under law. As per Clause 35 of the allotment letter the penalty amount of Rs.5/- per. sq. foot per month is stipulated for and as such the same goes to show that time was not the essence of the contract i.e. allotment and hence complainant is not entitled to any such relief, as claimed by him. The complainant himself has delayed the taking over of possession of the flat beyond the offer duly extended to him in December 2012 for which, the penalties were also accounted for and received by the complainant. The complainant settled the accounts and authenticated them. As per Clause 30 of the allotment letter, all delays have been accounted for the penalty toward any delay duly paid as part of the settlement of accounts and OPs prayed for dismissal of the complaint.

4.      The complainant tendered in evidence the affidavit of the complainant Vinod Kumar Ex.CW-1/1, copy of allotment letter Ex.C-1, list of rates of flats Ex.C-2, cost of flat Ex.C-3, copy of letter regarding handing over of Unit No.0-504 Ex.C-4, copy of letter regarding payment of penalty charges for delayed possession of Flat No.0-504 in Sunrise Greens Zirkpur Ex.C-5, final settlement of unit no.0-504 Ex.C-6.  As against it, OPs tendered in evidence affidavit of

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, by directing the complainant 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 at this stage. Ex.C-1 is allotment letter addressed to the complainant along with payment plan appended therewith and it also contains the terms and conditions of the allotment. Ex.C-2 is list of price of the flats, Ex.C-3 is receipt regarding amount received from the complainant, Ex.C-4 is handing over unit No.0-504 to the complainant, Ex.C-5 is copy of letter regarding payment of penalty charges for delayed possession of Flat No.0-504 in Sunrise Greens Zirkpur Punjab to complainant. This letter is signed by the complainant proving that complainant took possession of the said flat on 31.07.2013. Ex.C-6 is final settlement of the matter between the parties and it is duly 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 his signatures on Ex.C-6. The net payable amount by the complainant is Rs.2,04,811/- . The District Forum took document Ex.C-6, 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 ceased to be a consumer thereafter of the OPs. 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-6, the final settlement of account was effected between the parties 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 claim 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 him 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 property.

7.      We, thus, conclude that once complainant has accepted delivery of the flat and had benefit of appreciation of the price thereof, hence he is not entitled to 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-6 and took possession of the allotted property, therefore, the matter, which is finalized by 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 contrary view at the admission stage of the appeal. We dismiss this appeal at the admission stage 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 him.

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)