BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.613 of 2014
Date of institution: 13.10.2014
Date of Decision: 27.05.2015
Inderjit Singh Bakshi son of Sohan Singh resident of # 403, Sector 35-A, Chandigarh.
……..Complainant
Versus
S.M.V. Agencies Pvt. Limited, SCF 35-36 Jaipuria Sunrise Plaza, VIP Road, Zirakpur, District Mohali (Punjab) 140603.
………. 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 Gurpreet Singh, counsel for the complainant.
Shri Kabir Sarin, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the complaint with the following direction to the Opposite Party (for short ‘the OP’):
(a) to accept Rs.3,63,944/- instead of Rs.8,25,882/- for handing over the possession of the flat to the complainant.
(b) to pay Rs.5.30 lacs for harassment and mental agony.
(c) to pay him Rs.30,000/- as litigation expenses.
The complainant has pleaded in the complaint that he booked a flat at the 5th floor of the project of the OPs named as Jaipuria Sunrise Greens, Zirakpur. Rs.4.00 lacs as booking amount was paid by the complainant on 02.04.2008 vide receipt Ex.C-1. Rs.25,36,428/- being 95% cost of the flat was paid by the complainant vide receipt dated 24.05.2008 Ex.C-2. Subsequently the complainant opted for change of location of the flat on ground floor of another block and resultantly flat No.C-001 was allotted to him on payment of Rs.8,000/- as administration charges, vide allotment letter dated 20.11.2009. The possession of the flat was to be delivered on 30.06.2009 and on failure of the OP to give the possession by that date, he filed complaint No.19 of 2013 before the Hon’ble Consumer Disputes Redressal Commission, UT Chandigarh, who allowed the appeal of the complainant vide order dated 26.08.2013. The OP had neither paid the amount within 45 days nor handed over the possession of the flat in compliance with the directions contained in order dated 26.08.2013. The complainant filed Appeal No.729 of 2013 before the Hon’ble National Commission against the order dated 26.08.2013 of Hon’ble State Commission, UT Chandigarh to the extent that compensation/penalty of Rs.5/- per sq. of super area per month for the period of delay i.e. 01.07.2009 to 30.11.2012 was inadequate as it amounted to only 3% interest per year for the delay in handing over the possession. The appeal of the complainant was admitted by the Hon’ble National Commission vide order dated 07.02.2014. However, The OP had not challenged the judgment of the Hon’ble State Commission, UT Chandigarh. As the possession was not handed over to the complainant, he vide letter dated 09.06.2014 Ex.C-4 demanded possession from the OP. However, instead of handing over possession, the OP vide legal notice dated 29.06.2014 Ex.C-5 stated that the complainant was repeatedly asked to take physical possession in compliance with the order dated 26.08.2013 of the Hon’ble State Commission, UT Chandigarh. The OP also vide statement of account attached with the legal notice Ex.C-5 demanded Rs.8,25,882/- from the complainant under various heads after adjusting the amounts to be paid in compliance of the orders dated 26.08.2013 of the Hon’ble State Commission, UT Chandigarh. In the statement of account, the OP had wrongly mentioned that a sum of Rs.2,52,338/- towards interest whereas the OP was to pay interest to the tune of Rs.1,74,660/- to the complainant in compliance with the order dated 26.08.2013 of the Hon’ble State Commission, UT Chandigarh. The complainant vide his legal notice dated 17.08.2014 Ex.C-6 that he had deposited 95% payment in one go in the year 2008 and the Hon’ble State Commission had penalized the OP for delaying the possession. The complainant also enclosed a cheque dated 17.08.2014 for Rs.5,38,604 towards the amounts payable for getting possession by deducting Rs.2,52,338/- wrongly charged by the OP and also deducted Rs.34,940/- which was not payable on account of external developmental charges. However, the complainant could not deduct the interest amount of Rs.1,74,660/- at the time of making this payment. After few days the complainant visited the OP who stated that if the complainant wants the amount of Rs.2,52,338/- to be waived off he should withdraw his appeal pending in the Hon’ble National Commission. The complainant stated that there has been no delay on his part rather the OP was penalized for delay in handing over the possession. Till date the OP did not have the occupation certificate for the project. The OP vide reply Ex.C-7 returned the cheque of Rs.5,38,604/- by taking false pleas. From the statement of accounts sent by the OP only an amount of Rs.3,63,944/- is to be payable by the complainant. The OP has not charged the interest while delivering possession of flat No.C-303 to the wife of the complainant and to many other allottes in the same project. The complainant has filed the present complaint before this Forum as earlier the office of the OP was at Chandigarh and now it has shifted its office to Zirakpur within the territorial jurisdiction of this Forum.
2. The OP in the written statement has pleaded in the preliminary objections that this Forum has no territorial jurisdiction as the allotment was executed at Chandigarh and the payments were also received at Chandigarh. Statement of account and claims are beyond the scope of specific terms and conditions of allotment. Complicated questions of law and facts are involved in this case. There is nothing on record to prove any delay in possession on account of act and conduct of the Op beyond time frame as directed by the Hon’ble State Commission, UT Chandigarh. From the correspondence it reveals out that it is the complainant who demanded excess amount than the order of the Hon’ble State Commission, UT Chandigarh and it is for this reason that the OP is unable to deliver the possession to the complainant. The issue involved in the complaint has already been adjudicated and finally decided by the Hon’ble State Commission, UT Chandigarh and the complainant has also filed appeal before the Hon’ble State Commission. Thus the complaint is not maintainable under law being hit by principle of res-judicata. On merits, it is pleaded that the complainant himself has delayed the payment and as such is bound by the terms and conditions of allotment which is a binding contract. The payment was demanded from the complainant vide letter dated 26.09.2012. The complainant was offered possession in compliance with the order of the Hon’ble State Commission, UT Chandigarh. The complainant rejected the offer of possession and in contradiction to the same demanded interest on the delayed possession amount. The complainant was served statement of accounts and offered one time offer of waiver of excess courtyard area so that he may finally end the matter. However, the offer was rejected by the complainant. The complainant cannot be allowed to file the complaint now. As per the allotment the complainant was entitled to penal charge 2 Rs.5/- per sq. ft. per month for the entire super area for the period of delay. The Hon’ble State Commission has limited the liability of the OP in view of the law laid down by the Hon’ble Apex Court and upheld the said penal charge only. Nowhere the Hon’ble State Commission observed that the complainant shall not be liable to pay all other charges and costs as per the allotment. Thus, denying any deficiency in service on the part of the OP, dismissal of the complaint has been sought.
3. Evidence of the complainant consists of his affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-7.
4. Evidence of the OP consists of affidavit of Anurag Mishra, its authorised representative Ex.OP-1/1 and copies of documents Ex.OP-1 to OP-7.
4. We have heard learned counsel for the parties and gone through their written arguments.
5. This is the second round of litigation between the parties touching on the same property. Earlier the complainant has earlier filed the complaint before the Hon’ble State Commission UT and vide order dated 26.08.2013 allowed the complaint with the following directions:
(i) The OP shall pay compensation/penalty @ Rs. 5/- sq. ft., of the super area, per month, for the period of delay i.e. 01.07.2009 to 30.11.2012, to the complainant.
(ii) The OP shall further pay Rs. 1.50 lacs, as compensation, for mental agony and physical harassment, caused to the complainant, for delayed offer of possession of the flat, in question.
(iii) The OP shall further pay Rs. 30,000/- as cost of litigation, to the complaint.
(iv) The amounts mentioned in Clauses (i) to (ii) shall be paid by the Opposite Party, within a period of 45 days, from the date of receipt of a certified copy of the order, failing which, the amount mentioned in Clause (i) shall carry interest @ 9% P.A., from 01.07.2009 till realization, whereas, the amount of compensation, mentioned in Clause (ii) , shall carry interest @@ 9% P.A., from the date of filing the complaint, till realization, besides payment of cost of litigation.
6. In the present complaint the complainant has disputed the issuance of statement of accounts of outstanding amount after the decision of the order of the Hon’ble UT State Commission. The grievance of the complainant is that the amount reflected in the statement of account is not legal and has been arbitrarily charged and the act of the OP is an act of deficiency in service.
7. The main objection of the OP is that Forum hunting is not permitted under the Act as the complainant has already got relief from the Hon’ble UT State Commission and all the reliefs granted by the Hon’ble State Commission have been given the benefit to the complainant in the present statement of account and thus the statement of account showing the recoverable amount is legal and valid and does not amount to any deficiency in service or unfair trade practice and is as per the terms and conditions of the duly executed agreement.
8. So far the Forum hunting objection raised by the OP is concerned; we are not in agreement with the counsel for the OP in this regard. Definitely it is a separate cause of action which has arisen to the complainant after the issuance of statement of account of recoverable amount, after the orders of the Hon’ble UT State Commission.
9. Now to look into the grievance of the complainant it will be appropriate to go through the statement of account attached with Ex.C-6. The perusal of Ex.C-6 dated 29.06.2014 i.e. settlement of accounts and possession of residential unit bearing No.C-001 Jaipuria Sunrise Plaza, Zirakpur, in lieu of order dated 26.08.2013 passed by the Hon’ble State Commission, UT Chandigarh. The statement of account clearly shows different heads under which the amount has been demanded i.e. an amount of Rs.8,25,882/- from the complainant by the OP before handing over the possession of the unit concerned.
10. It is admitted that the complainant had earlier booked one residential unit No.H-502 and was allotted the same on 18.04.2008. The total sale consideration for that unit was Rs.33,75,204/-. It is admitted that 95% of the said amount i.e. Rs.29,36,428/- has been deposited by the complainant as on 24.05.2008 against the agreed date of 17.05.2008. Thus, there is delay of 8 days in such deposit. As per the agreed terms, the said amount was deficient of Rs.2,79,659/-. It is admitted that in 2009 the complainant opted for shifting of flat from H-502 to C-001 and the cost of the new flat was Rs.36,96,652/-. After giving him the discount of Rs.2,95,732/- and adjusting the previous amount of Rs.29,36,428/- the complainant was yet to make the balance payment of Rs.1,84,833/- plus earlier deficient amount of Rs.2,76,659/-. Since the said amount has not been cleared by the complainant till date, therefore, interest as per terms of agreement has been levied on the said outstanding amount and has been reflected in the statement of account under the head interest as Rs.2,52,338/- and we do not find anything wrong on the part of the OP to charge the said interest as per agreed terms of the agreement and also other components of chargeable amount mentioned in the statement of account.
11. Therefore, the complaint is hereby dismissed being devoid of any merit with no order as to costs. 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.
May 27, 2015.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
