Orissa

Cuttak

CC/76/2020

Dr Gitanjali Kar - Complainant(s)

Versus

Vipul Limited,GM-Corporate Shri Rashmi Ranjan Das - Opp.Party(s)

M Agrawal & associates

29 Apr 2022

ORDER

IN THE COURT OF THE DIST. COINSUMER DIUSPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                                C.C.No.76/2020

 

1.         Dr. Gitanjali Kar,

W/O:Dr. Biswaranjan Mishra,

Res. Of Flat No.201,Chandralok Apartment,

Professor Para,Cuttack-751003.

 

 

2.         Dr. Biswaranjan Mishra,

S/O:Dibakar Mishra,

Res. Of Flat No.201,Chandralok Apartment,

Professor Para,Cuttack-751003.                                                     ... Complainants.

 

                                                Vrs.

1.        Vipul Limited, having its regional Office

AT:2^nd Floor,Somi Palace,Plot No.M5/17,Acharya Vihar,

Bhubaneswar-751013, represented

Through its GM-Corporate Sri Rashmi Ranjan Das.... Opp. Party.

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    23.09.2020

Date of Order:  29.04.2022.

 

For the complainants:          Mr. Mohit Agarwal,Adv. & Associates.

For the O.P.                           Mr. P.K.Behera,Advocate.

 

Sri Debasish Nayak,President.

            The case record is put up today for orders.

The case of the complainant as made out from the complaint petition in short is that both of the complainants have filed their complaint against the O.P accusing him for deficiency in service and alleging that the O.P had adopted unfair trade practice.  The complainant had booked a flat under the Housing scheme Vipul Green,Ransinghpur pounder Khorda Police Station in the district of Khorda.  For the said purpose both the complainants had jointly applied for booking  a residential flat with the O.P and had paid the initial booking amount of Rs.12,55,450/- on 15.3.2018 to the O.P.  The O.P had provisionally allotted unit No.3303 at block-C of the residential project Vipul Greens,Bhubaneswsar and had issued allotment letter to that effect on 15.3.18.  In the said allotment letter the total consideration price for the flat was specified to be Rs.1,12,09,375/- including cost of the parking to be of Rs.2,50,000/-.  The O.P thereafter had sent an e.mail to the complainants’ dt.5.3.18 and had sent the agreement for sale which was required to be signed by the complainants.  The complainants on scrutiny of the said agreement for sale as sent to them by the O.P; noticed that the said format was not in conformity with the ORERA rules.  According to the complainants, the total consideration amount as claimed by the O.P included the payment of parking space of Rs.2,50,000/- and the said parking space was  falling within the domain of common area as defined in Sec-2(n)(iii) of the RERA Act.  The said common area cannot be sold to any individual allottee nor any extra charge be levied or recovered for the same.  It is for this, the complainants filed a complaint before the RERA bearing C.C.No.70 of 2-18 seeking direction to the O.P for executing the agreement for sale in the prescribed format of ORERA rules and also seeking direction that the O.P should not charge any payment for the basement parking space.  Accordingly, in the RERA court vide  order dt.8.8.18 directed the O.P to execute agreement for sale with the complainants as per the prescribed format in OREFA rules,2017 and not to charge any payment for the basement parking.  Being aggrieved, the O.P challenged such order before the Real Estate Appellate Tribunal vide appeal case NO.13(RE)/2018 but the same was not admitted.  The complainants thereafter on 24.12.2018 intimated the O.P that the agreement copy supplied by the O.P for signing was not in accordance with the format as prescribed in ORERA rules.  The O.P thereafter issued letter dt.19.1.19 to the complainants wherein the O.P mentioned that agreement copy supplied by him for signing is revised format of agreement as per the ORERA rules which are required to be signed by the complainants, failing which, the allotment of the complainants was to be cancelled.  But when the complainants noticed defect in the format they intimated the O.P through their letter dt.21.1.19 about the defective agreement which is still not in accordance with the ORERA rules.  Again on 12.6.19 the O.P intimated the complainants that they are sending another revised agreement but when the complainants received the subsequent agreement they again noticed that it was also a defective one and not in accordance with the prescribed format of the ORERA rules.  Moreso, in the revised agreement the O.P had again charged a sum of Rs.2,50,000/- for parking and had thus claimed the consideration amount of Rs.1,12,09,375/-.  When the complainants requested the O.P to deduct the parking charges so as to enable them to sign the agreement, the O.P refused to do so, rather, the O.P again sent e.mail dt.14.8.18 to the complainants thereby sending the same defective agreement and also without deducting the parking area charges and had instructed the complainants to sign the agreement.  The complainants had filed execution case no.10/2018 before the RERA for execution of the order of the RERA court as passed on 8.8.18 in C.C No.70 of 18.  The O.P had arbitrarily cancelled the allotment order of the complainants on 18.9.20 even when the execution case was pending and had forfeited the booking amount as paid by the complainants to the O.P.  As such,  the complainants have approached this Commission with a prayer to pass orders as deemed fit and proper in the interest of justice and to direct the O.P to remove the deficiency in service by recalling the order dt.18.9.20, cancellation of allotment letter dt.15.3.18 be declared as illegal as it amounts to deficiency in service, to direct the O.P to pay compensation amount of Rs.1,00,000/- towards harassment and mental agony and also to pay litigation expenses to the tune of Rs.20,000/- to the complainant.

2.         The O.P on the other hand, has contested this case and has filed written version wherein the O.P has denied about the accusation of deficiency in service and unfair trade practice as alleged by the complainants.  According to the O.P, the complaint petition is not maintainable.  Of course the O.P admits about the complainants booking a flat from him vide their application dt.5.3.18 for which allotment letter was issued by the O.P dt.15.3.18to them.  The O.P alleges that the complainants had not signed the agreement for sub-lease as sent by him dt.15.3.18.  The O.P urges in his written version that the draft for agreement to sub-lease to the complainants which was sent to the complainants on 15.3.18 was accepted by ORERA before being sent.  The O.P has further mentioned at sub-para-4 of version that the consideration amount of Rs.1,12,09,375/-  includes payment covered towards parking(One) amounting to Rs.2,50,000/- and the complainants have agreed to avail the same through their application followed by the letter of allotment dt.15.3.18.  According to the O.P, the said parking is not a common area.  The O.P also admits to have challenged the order of the ORERA court through appeal case no.13(RE)/2018 and also about the complainants filing the execution case bearing no.70 of 2018 for implementation of the order of ORERA court dt.8.8.18.  Meeting all the queries the O.P had sent the draft agreement for sale to the complainants on 12.6.19 which was required to be signed by them, but the complainants vide their letter dt.2.7.19 have replied that they were not in a position to sign the said agreement and had requested to wait till the instructions of RERA as well as the Tribunal.  On 13.8.19, the complainants agreed to sign the agreement before the ORERA subject to deletion of clause-7.4 of the agreement.  On 14.8.19 the O.P requested through letter to the complainants to sign the agreement and assured to delete the said clause in their presence.  According to the O.P, the complainants have neither disputed the terms and conditions of the allotment letter dt.15.3.18 nor had they disputed the consideration amount but they disputed only for the charge for parking space which included cost of one covered parking.  The O.P urges to have sustained huge loss due to the conduct of the complainants.

3.         Keeping in mind the averments from either sides as made in the complaint petition and the written version as well, this Commission feels it proper to adjudicate the following issues.

            i.          Whether the case is maintainable?

            ii.         Whether the complainants had any cause of action to file this case?

            iii.        Whether there was any deficiency in service on the part of the O.P.?

            iv.        Whether the O.P had any unfair trade practice?

            v.         To what reliefs, the complainants are entitled to?

Issue Nos.3 & 4.

            For the sake of convenience issues No.3 & 4 are taken up first for consideration here in this case.  Admittedly there was booking of a flat by the complainants from the O.P named and style at Vipul Greens, for a consideration of Rs. 1,12,09,375/- .  It is also admitted that the complainants had paid the booking amount of Rs. 12,55,450/-.  The dispute arose when the agreement for sale/sub-lease has sent by the O.P to the complainants was not in conformity with the RERA rules and further when the O.P. charged a sum of Rs.2,50,000/- towards one covered parking space.  For the said reason, after exchange of e.mails, being dissatisfied, the complainants had gone to the court of RERA wherein the O.P was directed to prepare and send the agreement for sale/sub-lease to the complainants in the conformity of the RERA rules and to furnish copies of lease deed and approved plan to the complainants and also not to charge any price for the basement parking space as per (Annexure-1,page11 to 20 of complaint petition).  The O.P being dissatisfied with the said order had preferred an appeal but has not stated about the further consequences of the said appeal.   To the contrary , the complainants have urged that the appeal as preferred by the O.P was not admitted.  The complainants had preferred execution of the order of the RERA court and same is also not disputed by the O.P. 

            When the competent court had passed order directing the O.P/Respondent therein with some directions, then the said order of the said competent court is to be sacrosantly followed with letter and spirit.

            As it appears from the written notes of submission of the O.P, he has relied upon a decision of National Consumer Disputes Redressal Commission,   in the case of Capital Greens Flat Buyer Association and Ors. Vs. DLF Universe Ltd. C.C.No.351 of 2015 where it has been clearly held that even in a case where the possession has been delayed on account of the allottee having not paid the entire sale consideration, the developer shall not be entitled to any holding charges though it would be entitled to interest for the period the payment is delayed   but as it appears the facts and circumstances of this case is totally different from the case as decided by the Hon’ble National C.D.R.Commission.  Thus the said decision do not hold good here in this case since because the dispute arose and the matter was pending in the RERA Court and so there was deliberate withholding here in this case when the execution case is still pending.  Further, the O.P has relied upon another decision in the case of Mathura Prasad Vrs. Dossibai N.B Jeejeebhoy, AIR 1971 SC 2355.  The Hon’ble Supreme Court held that res judicata constitutes between the parties to the previous case and cannot move again in collateral proceedings.  Generally a decision by a competent court operates as res judicata even on point of law but here in this case as it appears, since because the O.P was quite stubborn and was not rectifying the defective agreement for sale/sub-lease even if being directed by the competent court like ORERA, the complainant had preferred execution case and moreso, the prayer in the RERA court is quite different than the case filed here before this Commission.  Here, it is alleged that there was deficiency in service and adoption of unfair trade practice. Thus, the said judgment does not hold good.  Further the O.P has relied another O.P also filed another decision of Hon’ble Supreme Court in Jagmohan Bahl Vs, State (NCT of Delhi), (2014) 16 SCC 501, the Hon’ble Supreme Court has categorically held that, “It is in consonance with the principle of judicial decorum, discipline and propriety.  Needless to say, unless such principle is adhered to, there is enormous possibility of forum-shopping which has no sanction in law and definitely, has no sanctity.  If the same is allowed to prevail, it is likely to usher in anarchy, whim and caprice and in the ultimate eventuate shake the faith in the adjudicating system.  This cannot be allowed to be encouraged...........”.

  Keeping the said cited decisions from the side of the O.P, it is noticed that as it appears from the facts and circumstances of this case, even if directed by a competent court, the O.P remained adamant, whimsical thereby showing disrespect to the adjudicating system. 

To counter act, the complainants through their written notes of submission have relied upon a pertinent decision of Hon’ble Supreme Court in the case of Irea Grace Realtech Vs Abhisekh Khanna [2021(3) SCC 241] has held that

“19.7 We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer’s Agreement constitutes an unfair trade practice U-S2(1)(r) of the Consumer Protection Act.  Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices.  An – unfair contract has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void.  This is a statutory recognition of a power which was implicit under the 1986 Act.  In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer’s Agreement”.  This pertinent decision squarely applies to the present case in hand.

            Thus keeping in mind this pertinent decision and from the above discussions as well it can safely be concluded that the O.Ps are adopted unfair trade practice on their work which is deficiency in service on the part of the O.P.

Issue No.1 & 2:

            From the above discussions, when it is made out that there was definitely deficiency in service by the O.P, who had also adopted unfair trade practice, the complainants here in this case had cause of action to file this case and the case is undoubtedly maintainable as per the recently opined pertinent decision of the Hon’ble Apex Court.  Thus, these two issues are answered in the affirmative and in favour of the complainants.

Issue No.5.

            The complainants are thus entitled to the reliefs as sought for.  Hence it is so ordered;

                                                            ORDER

            The case is decreed against the O.P.  The O.P should remove the deficiency in service by recalling the letter dt.18.9.2020 and also rectifying the deficiency in service in the allotment letter dt.15.3.18 and to pay a sum of Rs.70,000/- to the complainants towards the mental agony together with a cost of Rs.20,000/- towards litigation expenses.  These orders are to be scrupulously followed and obeyed within a month hence by the O.P.

           Order pronounced in the open court on the 29^th day of April,2022 under the seal and signature of this Commission.

 

                                                                                                                             Sri Debasish Nayak

                                                                                                                                        President

 

                                                                                                                       

                                                                                                                            

                                                                                                                         Sri Sibananda Mohanty

                                                                                                                            Member.