Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that complainant has booked 3 bed room Type A flat in Sahara City Homes which was to be built by Sahara Prime City Limited in Chandigarh and paid Rs.2,00,000/- on 23.12.2004. The complainant has deposited the following amount as per detail given below:-
Sr. no. | Date | Amount |
1. | 23.12.2004 | 2,00,000/- |
2. | 23.11.2005 | 14303/- |
3. | 02.01.2006 | 11279/- |
4. | 27.09.2006 | 11279/- |
5. | 14.10.2006 | 11279/- |
6. | 18.10.2006 | 11279/- |
7. | 30.11.2006 | 11279/- |
8. | 30.12.2006 | 11279/- |
9. | 31.01.2007 | 11279/- |
10. | 30.03.2007 | 11279/- |
Subsequently vide letter dated 09.05.2011 the opposite parties intimated to the complainant that their project namely Sahara City Homes, Chandigarh has got delayed on account of litigation pending before the Hon’ble Punjab and Haryana High Court, Chandigarh and thus option was provided to the complainant to get either refund of invested amount alongwith interest or to wait for commencement of the project subject to the final decision of the court case. Accordingly the complainant had exercised the option to wait for commencement of project in question. However, astonishingly till date, the complainant has not received any intimation from Sahara City Homes, Chandigarh about the fate of litigation or about the project in question. This being so the investment of complainant in the project in question have remained in limbo and the extra ordinary delay in commencement of the project has caused irreparable mental agony to her. Now, on account of old age and being in dire need of funds, the complainant sent a request letter/legal notice to Sahara City Homes wherein the complainant categorically stated that she cannot wait any further for commencement of the project in question and her invested amount be refunded alongwith interest @ 18% per annum. Thereafter complainant has sent a letter requesting to refund the amount in dispute. In spite of various requests, reminders, the opposite parties have not taken any action in the matter. Complainant tried to visit the office of opposite parties several times but with no effect. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:
a) Opposite Parties may be directed to pay an amount of Rs.304535/- regarding booking of 3 Bed Room Type A Flat alongwith interest @ 18% per annum till the realization.
b) The amount of Rs.5,00,000/- be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment suffered by the complainant.
c) And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.
2. Upon notice, none has come present on behalf of opposite parties no.1 to 3, despite service. As such, opposite party nos.1 to 3 were proceeded against exparte.
3. Opposite Party No.4 & 5 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the present complaint is liable to be dismissed, as the same is not maintainable as, as per the mandate of Section 16 of CPC subject to the pecuniary of other limitation prescribed by any laws, complaint in relation of immoveable property has to be instituted, where the subject matter is situated. In the present case, the subject matter is situated at Chandigarh, hence this Commission has got no jurisdiction to try and decide the present case. As the procedure of CPC is application to the complaint also so that the present complaint is liable to be dismissed U/0 7 Rule 3 where the subject matter of the complaint is immovable property, the complaint shall contain a description of the property sufficient to identify it, however in the present complaint, the complainant failed to provide the description of the suit property. So, on this ground alone, the complaint of the complainant is liable to be dismissed. The present complaint is liable to be dismissed U/o 7 Rule 7 of CPC as, as per this rule every complaint which shall state specifically the relief the complainant claims either simply or in alternative, whereas in the present complaint the complainant has claimed in prayer clause that the direction be issued to the opposite party to pay amount in question along-with interest which is otherwise not maintainable in the present complaint as the only remedy left with the complainant to file a civil suit for recovery against the opposite per law. So, the prayer is vague and contents did not specify the relief claimed by the complainant, therefore, complaint of the complainant is liable to be dismissed on score alone. The present suit is liable to be dismissed on the ground that complaint for direction to pay an amount is not maintainable unless the complainant has proved that there is any deficiency in opposite party and service on the part of the complaint is filed within the period of limitation prescribed under the Consumer Protection Act. The present complaint is liable to be dismissed on the ground of limitation, as per the complaint the last transaction was made on 30.03.2007 and thereafter the complainant was silent up to 13 years and even not dare to know about the status of the said deposits and ultimately in the 2021 year the present complaint has been filed beyond the period of limitation prescribed under the Consumer Protection Act i.e. within two years from the cause of action. The present complaint is liable to be dismissed as this commission has no jurisdiction to try and decide the present complaint as the court has no power to pass decree for the recovery and the same is lie only with the Civil Court and a voluminous documents and evidence is required to prove the same as per evidence Act and the same is not proved by way of summary procedure. The present complaint is liable to be dismissed' as the opposite parties already offered the complainant vide letter dated 08.05.2011 (himself placed on record by the complainant) that they are ready to refund the entire amount with interest of 8% per annum but she remain associated with the project on her wish and will and file the case after gap of more than 11 years even after such an offer. The complainant failed to show that there is any element of dispute in the present complaint. Even the complainant failed to discharge her burden by bringing her within the definition of Consumer Protection Act. The present complaint is liable to be dismissed as the complainant is indulge in material concealment of facts from this Commission and has wilfully misrepresented of the facts thus warranting dismissal of the mentioned complaint and has not stated the true facts. The present complaint is bad for non-joinder of necessary parties and moreover there is no registered office of Opposite Parties at Moga, hence this Commission has got no jurisdiction to try and decide the present complaint. From the face of complaint it has been cleared that the same has same been filed with a mischievous intention thereby enabling the complainant to enrich her at the cost of opposite party by filing frivolous complaint. The present complaint is liable to be dismissed as the relationship between the parties was that of lessee and licensor even after the successful possession is delivered on time as the same was given on 99 years of lease amount as per agreements & terms and conditions. The form of the terms and substance is very clear that the intention of the parties were never that of seller & buyer. So, in this way complainant is not our consumer. So, the complaint is liable to be dismissed with heavey costs. Further submitted that there was never an intention to cause any loss to any member and due to this all the members were given option to take back their money with till date alongwith interest, but the members who opted to stay back with the company has done an election. The decision is binding on all the members. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
4. In order to prove her case, the complainant has tendered in evidence copy of Aadhar card Ex.C1, her affidavit Ex.C2 alongwith copies of documents Ex.C3 to Ex.C13.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties tendered in evidence copy of authority letter Ex.OPs4 & 5/1 and affidavit of Sh.Randhir Kumar, Authorized Signatory Ex.OPs 4 & 5/2.
6. We have heard the ld.counsel for the parties and gone through the documents placed on record.
7. During the course of arguments, both the ld.counsel for the Complainant as well as Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as in written reply respectively. The first contention of the ld. counsel for the opposite parties are that the present complaint is liable to be dismissed, as the same is not maintainable, as per the mandate of Section 16 of CPC subject to the pecuniary of other limitation prescribed by any laws, complaint in relation of immoveable property has to be instituted, where the subject matter is situated. In the present case, the subject matter is situated at Chandigarh, hence this Commission has got no jurisdiction to try and decide the present case. We do not agree with the aforesaid contention of opposite parties, because the complainant is permanent resident of District Moga and as per section 34 (1) (d) of the Consumer Protection Act, 2019 the consumer can file a complaint for the Redressal of his grievance, where he resides or personally works for gain, hence this Hon’ble Consumer Commission, at Moga has got jurisdiction to try and entertain the present complaint.
8. The second plea raised by the opposite parties are that he present complaint is liable to be dismissed on the ground of limitation, as per the complaint the last transaction was made on 30.03.2007 and thereafter the complainant was silent up to 13 years and even not dare to know about the status of the said deposits and ultimately in the year 2021, the present complaint has been filed beyond the period of limitation prescribed under the Consumer Protection Act i.e. within two years from the cause of action. But we do not agree with this contention of opposite parties also because they are accountable for unfair trade practice since they have enjoyed and utilized the hard earned money of the complainant without providing the possession of the flat in question. However, the complainant is deprived off his legitimate right of possession of the flat instead of making the booking amount, which caused acute mental and physical discomfort to the complainant for which the opposite parties are responsible and as such, the complainant is the consumer of the opposite parties within the terms, meaning and expression as is provided for the consumer under the provisions of the Consumer Protection Act, 2019 and complainant is having continuing and recurring cause of action to file this complaint before this Hon’ble Commission. Hence the complainant is entitled for above mentioned reliefs.
9. Since the opposite parties have failed to provide the possession of the flat in question, despite receiving the hard earned money of the complainant and as such, there is certainly deficiency in service of the part of the opposite parties. There is element of ‘deficiency in service’ as well as ‘unfair trade practice’ due to non-performance of the contract, whereby service of the opposite parties has been hired by the complainant by depositing the above said amount with them. The Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh, in First Appeal No. 127 of 2021 & others in case titled Savitri Devi Vs M/s Saharayan Universal Multipurpose Society Limited, decided on 21.6.2021 has held that Consumer Fora (now Consumer Commission) has jurisdiction to entertain the dispute, where the consumer comes to the Consumer Fora/Commission claiming the deficiency in service and unfair trade practice. In the present case also, consumer-complainant is complaining that the opposite parties have not refunded the invested amount despite making various requests. Further, in this regard, it is relevant to mention that the Hon’ble National Commission in case WESTERN RAILWAY v. VINOD SHARMA, I (2017) CPJ 279 (NC), while discussing the various provisions of the Act and by relying upon the judgments of the Hon’ble Supreme Court, in which it was observed that having due regard to the scheme of the Consumer Protection Act and purpose sought to be achieved to protect the interest of the consumers, the better provisions are to be interpreted broadly, positively and purposefully to give meaning to additional/extended jurisdiction.
10. Hence, in view of the law laid down by the Hon’ble Supreme Court as well as the National Commission as discussed above, the aforesaid contention of the appellants/opposite parties is rejected, holding that the Consumer Commission/District Commission is duly authorized and competent to decide the dispute between the parties and the District Commission duly exercised the jurisdiction under law.
11. Similarly, the application filed by the Opposite Parties to decide the instant complaint at its initial stage on the ground of limitation as well as jurisdiction also stands disposed of.
12. Resultantly, we partly allow the complaint of the complainant. The Opposite Parties are jointly or severally directed to make the payment of amount deposited by the complainant i.e. Rs.3,04,535/- (Rupees Three lakh four thousand five hundred thirty five only) alongwith interest @ 8% per annum from its respective deposit dates till its actual realization to complainant. The compliance of this order be made by the Opposite Parties within 60 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
13. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.