IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.
Present: 1.Shri Jiban ballav Das , President
2.Sri Pitabas Mohanty, Member,
3.Miss Smita Ray, Lady Member.
Dated the 23rd day of April,2018.
C.C.Case No.58 of 2017
Mrs. Sharmistha Hota W/O Saty Ranjan Hota
C/O Dr.S.K.Sathpathy.Badabazar,Jajpur Town
Dist.-Jajpur. …… ……....Complainant . .
(Versus)
1.Tata Housing Development Co.ltd, to be represented through its authorized signatory
Regd. Office-Times Tower,Kamala mills compound,Senapati,Bapat marg, Lower parel west
Mumbai.
2.Tata Housing Development Co.Ltd, to be represented through its authorized signatory
Site office,plot No.87/ 263 and 87/ 1264 ,zone -20,Mouza Shankarpur,Aigenia ,BBSR.
3.Manager,H.D.F.C Bank, At.Bibisarai chhak,Jajpur Town.
4.Chief Manager,State Bank of India,Mini branch ,Jajapur Town..
……………..Opp.Party.
For the Complainant: Sri P.K.Ray, Sri P.S.Ray, and Associates,
For the Opp.Party : no.1 and 2 Sri M.K.Panda, Sri A.Ch.Pradhan, Sri R.K.Panda, Shibaram
Dehury, Advocates
For the Opp.party No.3 Sri J. Pati, Advocate.
For the Opp.party No.4 None
Date of order: 23.04.2018.
SHRI JIBAN BALLAV DAS, PRESIDENT .
The petitioner has filed the present dispute alleging not only deficiency of service but also unfair trade practice due to non refund of her deposited money by the O.Ps. no.1 and 2 which was deposited by the petitioner towards allotment of a flat .
The brief facts as per complaint petition are that the petitioner applied for a residential flat which was going to be constructed by O.p.no.1 and 2 . As per the scheme the petitioner had deposited the booking amount of Rs.50,000/- intending to purchase a flat for an amount of Rs.59,52,175/- plus tax. After receipt of the booking amount the O.P.no.1 and 2 send the agreement
to the petitioner to sign the agreement as well as to deposit 30% of the project cost. Accordingly, the petitioner deposited Rs.18,01,795/- through cheque to be drawn on HDFC Bank,Jajpur and the same cheque was received by the agent of O.P.no.1 and 2 . In the mean time the petitioner had also deposited the TDS amount through SBI, Jajpur Town .Owing to the financial stringency ,since the husband of the petitioner has lost his job, the petitioner became incapable to pay the rest installment amount. Accordingly ,the petitioner applied to cancel the booking /withdraw from the project through E.Mail .After receipt of the cancellation/withdrawal mail the O.P.no.1 and 2 intended to deduct 15% from the total amount of the project cost ( out of total payment of Rs.18,69,171.00) Tata Arina wants to return only Rs.7,27,577.00/ after deductions of Rs.11,41,594.00/ which is 61% of the deposits) as per clause 6(b) of the application form and clause-3,4 of the agreement which is not acceptable. Due to non-refund of the deposited money instead of several approaches and correspondences the petitioner finding no other way approached Consumer Advice center, BBSR for redressal for her grievance who after perusal of the petitioner’s case came to the conclusion that non-refund of deposit amount by O.P no.1 and 2 is illegal and advised the O.p.no.1 and 2 to return the petitioner’s deposited money as early as possible. After receipt of the advice letter from Consumer Advice center the O.p.no.1 and 2 remained silent . Accordingly finding no other way, the petitioner knocked the door of this Fora with the prayer to direct the O.Ps to return Rs. 19,19,171/- which was deposited by the petitioner before the O.P for the above flat.
The notice of the present dispute though duly served on the O.Ps , the O.P.no.4 did not choose to appear or contested the dispute . Hence the O.P.no.4 set exparte vide order dt.29.12.17 .The O.P.no.1 and 2 entered into appearance though their learned advocate and subsequently field the written version taking the following stands :-
1. The present complaint filed by the petitioner is not maintainable as it is frivolous and vexatious and is therefore liable to be dismissed U/S 26 of C.P. Act 1986.
The petitioner has not fulfilled the ingredients of a valid complaint as envisaged of section -2(C) of C.P.Act 1986 because there is not a single allegation of either deficiency of service or that of any unfair trade practice, but simply averments have been made in this regard and hence the complaint is liable to be dismissed in limine .
2.This fora gets no jurisdiction to entertain the dispute as per section - 11 of C.P Act since the O.P.no.1 and 2 neither carries its business at jajpur nor does it have branch office at jajpur as well as no cause of action arises at jajpur. Further there is no averments regarding role of O.P.no. 3 and O.P.no. 4 . It is stated that op.3 and 4 has nothing to do with the issues involved in the captioned complaint . it is stated that the complainant’s act of arraying O.P.no..3 and 4 as party to the captioned complaint is an unsuccessful attempt to bring the captioned complaint to the territorial jurisdiction of Hon’be Forum. The captioned complaint is liable to be dismissed for want of jurisdiction .
3.That the O.p no.1 and 2 is developing a project in the complex in the name of Ariana at Shankarpur , Bhubaneswar through Kriday Reality Pvt. Ltd which is 100 % subsidiary of Tata Housing Development Ltd . By an application of 26.3.16 , the petitioner had applied for allotment of apartment . In the said project the application of said apartment under 30:70 scheme for consideration amount of Rs.59,52,175/- . At the relevant time the petitioner had paid Rs.17,85,652/- (30% of the consideration ) .Thereafter an agreement dt.27th April- 16 has executed. As per agreed terms the answering O.ps was required to be handover possession of apartment by 31st December - 2017 . As per clause -6(b) of application form and clause -3.4 of the agreement to sub-lease, in the event of cancellation and /or withdrawal the O.P are entitle to forfeit 15% of the consideration with accrued interest and application taxes . The terms and conditions as mentioned in application and agreement are binding on the petitioner . In the month of may -2017 the petitioner started insisting to withdraw from the project citing reason that there is no appreciation to the value of the Apartment and started asking for the refund of the amount paid . The communication of the customers were appropriately informed her that withdrawal from the project would attract forfeiture of 15% of the consideration , accrued interest and applicable taxes as per terms and conditions mentioned in the Application and Agreement to Sub-lease .In spite of aforesaid facts the complainant approached the consumer Advice Center , who wrote e-mail 2.8.17, 03.08.17 and 1.09.17 raising concerns about complainant’s matter . The afore said mail of consumer advice center were replied appropriately by the o.ps .
All the communication of the petitioner with alleging that O.P has violated the state’s RERA provisions and rules framed there under which is incorrect ,the O.P would like to put on record that RERA Act and RERA rules applicable to state of Odisha are completely silent on quantum of forfeiture . Further in such scenario the terms and conditions mentioned in the application and agreement to sub-lease shall prevail and binding on the parties . As stated above as per terms and conditions mentioned in application and agreement to sub-lease ,in the event of cancellation or withdrawal ,the O.P is entitle to forfeit 15% of the consideration, accrued interest and applicable taxes. It is further stated that the complainants are trying to quote clause- 7.5 of the RERA act, which is in correct . It is further stated that in any event clause of Model Agreement which is draft agreement is not mandatory and will not be applicable in the instant case as aforesaid Application form dt.26.03.2016 and Agreement to Sub-lease dt.27.04.2016 were executed much prior to RERA Act and RERA Rules coming into force. it is also submitted that this consumer complaint is not maintainable as it is simply a money claim for which the complainant should either file a civil suit or make a claim through Arbitration in terms of the arbitration clause , which is part of the contract between the parties . In which case, this Hon’ble Forum does not have jurisdiction to try and entertain the captioned complaint and on this ground itself the complaint is liable to be dismissed in limine. In view of the whatsoever stated herein above , the petitioner is not entitled to any relief as prayed . Hence the present complaint is not maintainable and liable to be dismissed with exemplary cost .
The O.P.no.3 has appeared through his counsel in obedience to the order passed by this Forum stating that this court will verify the contents of the petition filed by the petitioner will found that there is no specific allegation made against the O.P.no.3 in any manner rather the petitioner has impleaded the O>p.no.3 formally and the same has been duly clarified in the petition in para-20. . So far as the prayer made by the petitioner all relief sought from the O.p.no.1 and 2 and so far as the transactions took place between the petitioner and O.P.no.1 and 2. The O.p.no.3 has no role to play in this matter only to prove some of the transactions made between the petitioner and O.P.no.1 and 2 .The petitioner has made the O.p.no.3 as a party in this case . It is not out of place to mention here that the petitioner has admitted in her petition that there is no grievance against op.3 and 4 in this context . It is clarified that since there is no claim against O.P.no.3 then why she has made the HDFC Bank as a party to this case and she can prove the Transactions if any with the O.P.no.1 and 2 ,she can able to produce the Bank statement before this Forum to apprise this court regarding the payment made by her to the O.P.no.1 and 2 in respect of the flat from TATA housing Development Company Ltd. Hence the O.P.no.3 may kindly be discharged from the above dispute.
On the date of hearing we heard the argument from the learned advocate of both the parties. After perusal of the record ,documents and citation in details it is observed that the o.p.1 and 2 taken two pleas :
- This for a gets no territorial jurisdiction to entertain the dispute as per section 11 of C.P.Act since O.P.no.1 and 2 neither carries on its bushiness at jajpur nor does it have its branch office at jajpur as well as no cause of action arises at jajpur.
b. Since RERA act is not applicable to grievance of the petitioner ,the op.1 and 2 are entitled to deduct 15 % of the paid amount which comes to Rs11,41,594.00/ and wants to pay Rs.7,27,577.00 /- .
Hence in this contest the following issues are framed:
1.whether the petitioner is a consumer who is entitled to maintain the dispute in this fora in connection of RERA clause .
2 whether this fora gets jurisdiction to adjudicate the present dispute on the point of territorial jurisdiction ?
3 whether there is any deficiency of service on the part of the o.ps so far as in the event of the withdrawal / cancellation of booking flat ?
4.Whether the petitioner is entitled to any relief ?
Answer to issue No.1
It is undisputed fact that the petitioner booked a flat from op.1 and 2 as against such booking the petitioner paid money through op.3 and 4 which is consideration and come under the hiring of service . As such the petitioner is a consumer as per section 2(I)(d) of C.P. Act 1986 . As per plea raised by op.1 and 2 it is observed that on May -1 ,2017 92 provisions of Real Estate (Regulation and Development Act 2016 (RERA ) were brought into force the act has introduced new obligation on the real estate developers also in case of default , prescribes penal liabilities, significantly, the act applies not only to future project but also to on going projects where construction began prior to May 01.06.2017 . Consequently, it appears that the Act may well erode and interfere with the accrued / vested rights or developers and customers under contracts executed among them prior May -1.2017 .
For instance , section 3(1) of the Act, restrains a developer from advertising and selling any space in a project, without registering the project with the real estate regulatory authority . For on going projects for which a completion certificate has not been issued . this registration is to be obtained mandatorily within a period of three months from May 1,2017. Any violation of section -3 could result in a penalty up to 10 % of the estimated cost of the project. In case of continuing defaults, imprisonment is also prescribed The Act also provides for penal consequences in case of breaches of public obligations committed during registration . RERA Act is an Act to establish the Real Estate Regulatory Authority for Regulation and promotions of the Real ensure sector and to ensure sale of plot apartment of building as the case may be or sale of Real Estate project in an efficient and transparent manner and to protect the interest of Consumer in the Real Estate sector .
We have gone through the agreement filed by the O.P.no.1 and 2 vide Annexture-C wherein vide clause-8.15 it provides that O.P.no.1 and 2 are fully aware about the implementation RERA Act and the O.P.no.1 and 2 agreed to incorporate the provisions in the agreement.
Similarly the clause 3.4 of the agreement provides that in case the petitioner / allottee neglects to deposit the installments amount in due date the O.P no.1 and 2 are entitled to forfeit not only the application fee but also 15% of the total consideration by cancelling the agreement. In the present case the O.p.no.1 and 2 have not cancelled the agreement and allotment .Hence, the O.P.no.1 and 2 are no way entitled to deduct 15% of the total consideration money .More over as per clause-7.5 of Odisha RERA rules when the allottee proposes either to withdraw from the project without the fault of the promoter in such a situation the promoter is only entitled to deduct only booking amount and the rest deposited amount shall be refunded within 45 days.
For the above facts and circumstances ,it is crystal clear that RERA Act is applicable in the present case. In this context the petitioner placed reliance on the Odisha Real Estate (Reg.& Devt) Rules,2017 annexture-7.5 the Allottee shall have the right to cancel / withdraw his allotment in the project as provided in the Act .Further the provisions of the section -3 of C.P. Act indicates that this act is not derogation of any law for the time being in force .Accordingly in view of observations of the Hon’ble Supreme court and National Commission reported in 2004- CTJ- p-1- para-13 supreme court , this fora is competent to adjudicate the dispute .
Answer to issue No. 2
As regards the territorial jurisdiction as stated by O.P.no.1 and 2 that this For a gets no jurisdiction to entertain the present dispute since the O.p.no.1 and 2 neither resides nor carries its business within the territorial jurisdiction of this Fora . As against such plea the petitioner submits that the petitioner had deposited the booking amount and 30 percent of the cost of the project through O.p.no.3 and 4 situated at Jajpur which is within the territorial jurisdiction of this Fora. .More over part of the cause of action arose within the jurisdiction of this Fora as money is paid at jajpur through bank . Accordingly this fora not only entitled to but also empowered to adjudicate the present dispute in view of the observations of Hon’ble Supreme court and National Commission vide Diary no. (S.) 15120 /2017 –Supreme court arising out of R.P No. 1397/2016 of N.C spicejet Ltd vrs Ranju Aery ) , 2017(4) CLT-331- SC Panchakula
Answer to issue No. 3 and 4
There are vital issues where we are to verify if only there is deficiency of service on the part of the ops and if so whether the petitioner is entitled to any relief as prayed in the complaint petition. In view of the above factual aspects we are inclined to hold that the O.p.no.1 and 2 can not deduct 15% of the total cost since the agreement has not yet been cancelled and the petitioner applied to withdraw from the project as per odisha Real Estate Regulatory Rules 2017 clause-7.5 . Since as per Odisha Real Estate Regulatory rules where the allottee proposes to cancel /withdraw from the project without any fault of the promoter, the promoter is entitled to forfeit the booking amount paid for the allotment. The balance amount of the money paid by the allottee shall be return by the promoter to the allottee within 45 days of such cancellation .As the O.p.no.1 and 2 did not return the balance amount of the petitioner except the booking amount paid there is patent deficiency in service on the part of O>p.1 and 2 .hence it is crystal clear that the law is consequently in complainat’s favour for which the dispute is allowed against the O.Ps i.e O.p.no.1 and 2 .
During the course of hearing the o.p.no.1 and 2 filed a petition on 16.02.18 that the petitioner has suppressed the material facts as the petitioner also moved the Odisha Real Estate Regulatory Authority vide complaint No.02/17 dt. 11.12.17 . It is the plea of O.p no.1 and 2 that for the same cause of action the petitioner can not moved two Forums and resjudicata operate in such matter.
The petitioner in the written objection dt.07.03.18 submitted that the principle of resjudicata is not applicable in consumer cases and the petitioner being perturbed due to the inaction of the Odisha Real Estate regulatory Authority filed this case as the petitioner did not choose to contest the case No.02/17 before the Odisha Real Estate Regulatory Authority and the same is dismissed for default on 03.02.18 .
However in view of the aforesaid discussion the objection raised by O.Pno.1 and 2 appears to be a spent force as we have decided the matter on merit after having heard the learned counsel from both the sides. This petition filed by O.p.no.1 and 2 does not merit for consideration.
O R D E R
The dispute is allowed against O.P.no.1 and 2 on contest and set exparte against O.p.no.4 and dismissed against O.P.no.3 . The O.p.no.1 and 2 are directed to refund the entire deposited amount after deducting the booking amount of Rs.50,000/- ( fifty thousand ) within one month from the date of receipt of this order, failing which the O.p.no.1 and 2 shall be liable to pay 12% interest per annum from the date of filing of the dispute till its realization. We also allow the cost, litigation amounting to Rs.20,000/-( twenty thousand ) to be paid by the O.p.no.1 and 2 to the petitioner within the above cited stipulated period.
This order is pronounced in the open Forum on this the 23rd day of April,2018 under my hand and seal of the Forum.
