Haryana

StateCommission

A/164/2015

KOMAL CHANDA - Complainant(s)

Versus

SUPER MALLS PVT.LTD. - Opp.Party(s)

ROHIT GOSWAMI

02 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      164 of 2015

Date of Institution:      19.02.2015

Date of Decision :       02.09.2015

 

1.     Komal Chanda s/o late Shri Darshan Lal Chanda, Resident of House No.303/18, Old Chaman, Karnal.

2.     Smt. Kavita Chanda w/o Sh. Kamal Chanda, Resident of House No.303/18, Old Chaman, Karnal.

                                      Appellants-Complainants

Versus

 

Super Malls Private Limited 1, Sector-12, Urban Estate, Karnal through its Managing Director.

                                      Respondent-complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                           

Present:               Shri Rohit Goswami, Advocate for appellant.

                             Shri Varun Prabhakar, Advocate for respondent.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This complainant’s appeal is directed against the order dated November 28^th, 2014, passed by District Consumer Disputes Redressal Forum (for short ‘District Forum’), Karnal, whereby complaint No.456 of 2011 filed by him was dismissed being barred by limitation. 

2.           Komal Chanda and his wife Smt. Savita Chanda-complainants-appellants, filed complaint under Section 12 of the Consumer Protection Act, 1986, with the allegations that they had applied for a show-room in the project of Super Malls Private Limited-opposite party-respondent namely “Super Mall Private Limited” at Karnal. The shopping complex was under construction. The complainants applied for show-room No.11 measuring 10’x10’ on the first floor. The total price of the show room was Rs.14.00 lacs, which was payable in instalments. The complainants deposited 45% of the amount, that is, Rs.6.20 lacs. The time period for delivery of possession was agreed two years from the date of allotment.

3.      Vide letter dated 12.11.2007, the respondents-opposite parties informed about the completion of the Super Malls and asked the complainant to deposit the balance amount and sign Buyer Agreement as well as common area maintenance agreement with further offer to take possession. The appellants-complainants were shocked to learn that there was increase in the total area of the shop. The complainants approaching the opposite parties to disclose the total increased area and not being informed, the matter was kept pending and thereafter since the father of the complainants fell sick and was admitted in hospital for treatment and therefore issued notice on 30.03.2011 and the complainants filed complaints.

4.      The respondents-opposite parties contested complaint raising plea that it was a commercial transaction, therefore, complaint was not maintainable. Besides, that the complainants did not fall within the definition of Consumers. It was submitted that the complainants themselves were defaulting parties and despite being informed number of times about the completion of the project, the complainants did not pay the balance price and also did not come forward to take possession, rather, it is the opposite party who is suffering the loss by complainant not paying the common area maintenance charges with respect to the area earmarked for the complainants. It was submitted that the complainants were informed about the increased area and about the calculation thereof.

5.      After going through the pleadings of the parties and the evidence, the District Forum dismissed the complaint.

6.      Though the District Forum dismissed the complaint only observing that the complaint was barred by time, however, we have proceeded to dispose of the complaint on merits also.

7.      The complainants in their complaint have sought the primary relief seeking direction to the respondents-opposite party to disclose the increased area besides the amount thereof. In the event of increase in area is nominal to hand over possession.

8.      Learned counsel appearing for the respondents-opposite parties has disclosed the area as well as the increase in the price of the show-room. In the agreement Exhibit C-5, the complainants as per Clause 6, agreed to the term of the increase or decrease in the area, which is reproduced as under:-

“6.     The possession of the Showroom is expected within a period of Two years from the date of issue of this letter. Size of showroom may increase or decrease according to ground realty. The price of the showroom shall be increased or decreased accordingly.”

9.      Having taken into consideration the facts and circumstances of the case, since the respondents-opposite parties offered the possession even now, therefore, there is no merit in this appeal. Hence, it is dismissed.

 

Announced 02.09.2015

(Urvashi Agnihotri) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL