DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.452 of 2016
Date of institution: 29.07.2016 Date of decision : 07.06.2018
Ravi Gupta son of Sushil Gupta, resident of Flat No.204, Block E-7, GH 79, Sector 20, Panchkula.
…….Complainant
Vs
Vrindavan Gardens through its Managing Director Mukesh Kumar, SCO No.1-2, Peer Muchhalla, Tehsil Derabassi, Zirakpur.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member.
Present: Shri Swaran Singh, counsel for complainant.
Shri Amandeep Bindra, counsel for the OP.
Order by :- Shri G.K. Dhir, President.
Order
OP, a private limited company engaged in the business of construction of houses/flats, approached complainant by informing him that construction of group housing under the name and style of Vrindavan Gardens in area measuring 16 bigha at Peer Muchhalla, Tehsil Derabassi, District SAS Nagar has been started by it. Even OP informed that it has purchased the land and got the project sanctioned from Govt. of Punjab. As per the provided information, construction has been started and the same will be completed as per Govt. instructions. Site where construction of the flat was to be done even was shown to complainant. Complainant was disclosed that in case he makes full and final payment of the flat, then flat will be given to him on cheaper rate. Possession promised to be handed over to complainant after completion of construction on or before 31.12.2015. Agreement dated 19.12.2013 was arrived at between the parties in pursuance of which cash amount of Rs.11.00 lakhs as full and final payment was made by complainant to OP. On 31.12.2015 complainant approached OP for knowing status of construction of the flat and was disclosed by OP as if some work of colouring etc. is still pending, for completion of which period of one month is required. Promise was made to handover possession of the flat after one month. However, when complainant again approached after two months, then the matter kept on procrastinated. Complainant after visiting spot was shocked to see that no construction work was going on the spot and thereafter he contacted OP on telephone. Finally complainant approached OP for return of money because OP has not performed its part of the agreement. OP misbehaved with complainant and threatened him with dire consequences and as such by complaining that OP adopted unfair trade practice and even provided deficient services, this complaint filed after serving legal notice dated 21.04.2016 with payer for direction to OP to handover physical possession of flat in EWS Black Tower, Unit No.15, 4th Floor, Vrindavan Gardens, Peer Muchhalla, Zirakpur as promised in the agreement. In the alternative, return of paid price of Rs.11.00 lakhs with interest @ 24% from the date of execution of agreement till actual realisation is claimed. Compensation for mental agony and harassment of Rs.2.00 lakhs and litigation expenses of Rs.25,000/- more claimed.
2. In reply submitted by OP, it is claimed that complaint is not maintainable because the documents relied on in the complaint were never executed for consideration. Rather it is claimed that no deal as alleged took place between the complainant and OP. So concealment of material facts alleged to be done by complainant. Rather complainant and OP has a dispute with regard to monetary transactions, due to which even police complaints were filed at various police stations and a compromise was arrived at with intervention of respectables. A compromise deed dated 20.12.2013 was executed between the parties. As per that settlement, OP was to pay Rs.1.30 crore to complainant against the payment. Flat No.903-D, Vrindavan Gardens was agreed to be transferred in the name of wife of the complainant, but another flat No.15/4 Vrindavan Gardens was agreed to be transferred in favour of eligible buyer on asking of complainant because the said flat pertained to category of economically weaker sections of the society. Complainant and his wife submitted their affidavits duly attested from Executive Magistrate, Derabassi. Sale deed regarding Flat No.903-D has already been got executed in favour of wife of complainant. However, subsequently owing to malafide intention on part of complainant, FIR No.181 dated 22.05.2014 was lodged against wife of complainant under sections 323, 341, 506, 294, 382, 427 IPC on complaint of one of the employees of OP. These facts have been concealed for filing this frivolous complaint in counter blast to registration of FIR against wife of the complainant. It is claimed that complainant is not consumer as envisaged by Consumer Protection Act. Besides, in view of involvement of intricate questions of law and facts requiring elaborate evidence, the matter should be got decided from competent court having jurisdiction. Complaint also alleged to be barred by principle of estoppel, waiver and acquiescence. No cause of action has accrued in favour of complainant, more so when contents of the complaint are vague. Agreement dated 19.12.2013 was mere a paper formality and contents of the same should be given harmonious construction alongwith compromise dated 20.12.2013 and contents of the submitted affidavits dated 20.12.2013. Other averments of the complaint denied.
3. Learned counsel for the complainant tendered in evidence affidavit Ex.CW-1/1 of complainant and his own Advocate Ex.CW-1/2 alongwith documents Ex.C-1 and Ex.C-2 and thereafter closed evidence. On the other hand counsel for OP tendered affidavit Ex.OP-1/1 of Shri Mukesh Kumar Goyal, Partner/authorised signatory alongwith documents Ex.OP-1 to Ex.OP-8 and thereafter closed evidence.
4. Written arguments not submitted by the parties. Oral arguments heard and records gone through.
5. Counsel for complainant by placing reliance on agreement Ex.C-1 dated 19.12.2013 vehemently contended that OP offered Unit No.15, 4th Floor, Vrindavan Gardens, Peer Muchhalla, Zirakpur to complainant for total sale consideration of Rs.11.00 lakhs by agreeing to complete the construction of the project by 31.12.2015. Promise to deliver possession of the flat with amenities upto 31.12.2015 was made with further rider that in case the possession not delivered upto 31.03.2016, then OP will be liable to pay Rs.11.00 lakhs. The construction work has not been started and that is why possession not delivered even uptill 21.04.2016 as per submissions of counsel for complainant and as such it is vehemently contended that complainant is entitled for refund of paid amount of Rs.11.00 lakhs with interest @ 24% per annum from the date of execution of agreement till actual realisation. However, these submissions advanced by counsel for complainant vehemently controverted by counsel for OP by contending that dispute in this case is regarding monetary transactions involving amount of Rs.1.30 crore as revealed by contents of compromise deed Ex.OP-1 dated 20.12.2013 as well as the submitted attested affidavits Ex.OP-2 and Ex.OP-3 of complainant and his wife and as such it is vehemently contended that complainant is not a consumer within the meaning of Section 2 (1) (d) of Consumer Protection Act. Before adverting to these arguments, it is to be noted that this Forum has no pecuniary jurisdiction to decide this complaint because if the alternative relief prayed for, taken into consideration, then the same goes to establish as if the aggregate of the reliefs claimed is more than amount of Rs.23.00 lakhs, despite the fact that this Forum has pecuniary jurisdiction to deal with the complaints, where valuation of the reliefs claimed in aggregate is upto Rs.20.00 lakhs only. After going through Clause-2 of relief clauses as well as Para No.11 of affidavit Ex.CW-1/1 of complainant, it is made out that complainant seeking refund of paid amount of Rs.11.00 lakhs with interest @ 24% per annum from the date of execution of agreement namely 19.12.2013 till realisation. If interest @ 24% on amount of Rs.11.00 lakhs calculated, then same comes to Rs.2,64,000/- per annum. However, as this interest claimed from the date of agreement namely 19.12.2013 till realisation and as such if the said period calculated upto this date of 07.06.2018, then aggregate of claimed interest will be more than Rs.11,88,000/-. Compensation for mental harassment and agony of Rs.2.00 lakhs and litigation expenses of Rs.25,000/- more claimed and by adding these amounts to the above referred amounts of sale consideration and interest, it is made out as if complaint filed for claiming aggregate relief of more than Rs.25.00 lakhs. As per case of Ambrish Kumar Shukla & 21 Ors Vs. Ferrous Infrastructure Pvt. Ltd. 2016(4) CPR 83 (NC), for determining pecuniary limit jurisdiction of Consumer Forum, price of the goods purchased or agreed to be sold or services agreed to be availed together with amount of claimed interest and amount of compensation together to be taken into consideration. This proposition of law reiterated subsequently again by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case First Appeal No.1364 of 2017 titled as M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & 2 others Vs. Lalitha Saini, decided on 21.08.2017. As the aggregate of amounts of sale consideration alongwith interest and amount of compensation and litigation expenses goes beyond amount of Rs.25,05,000/- and as such certainly this Forum has no pecuniary jurisdiction to deal with this complaint.
6. After touching the merits of the case, it is made out that agreement Ex.C-1 not to be read in isolation to the contents of compromise deed Ex.OP-1 because if Flat/Unit No.15 on 4th Floor of Vrindavan Gardens, Peer Muchhalla, Zirakpur is the subject matter of agreement Ex.C-1, then same also is the subject matter of subsequent arrived at settlement deed Ex.OP-1 between the same parties i.e. complainant and OP of this case. Had intention of the parties been not to form the property in question bearing Flat/Unit No.15 as a part of the compromise deed Ex.OP-1, then reference of the same would not have been made specifically in Clause-2 of compromise deed Ex.OP-1. As the subject matter of this complaint i.e. Flat No.15 is also a part of the subject matter of compromise deed Ex.OP-1 arrived at between the parties subsequent to execution of agreement of sale Ex.C-1 and as such virtually the parties through compromise deed Ex.OP-1 agreed for rescission of terms of agreement Ex.C-1. It is on account of this that Flat No.15 also made subject matter of compromise deed Ex.OP-1.
7. After going through compromise deed Ex.OP-1, it is made out that dispute between complainant and OP was regarding monetary transaction involving amount of Rs.1.30 crore qua which settlement was arrived at and as such the sale deeds regarding Flat No.903-D in Vrindavan Gardens, Peer Muchhalla, Zirakpur Ex.OP-7 and Ex.OP-8 were executed by OP in favour of wife of present complainant. The sale deeds Ex.OP-7 and Ex.OP-8 were got registered from Sub Registrar Office at Dera Bassi by wife of complainant through OP by keeping in view terms of Clause-2 of compromise deed Ex.OP-1 and as such submissions advanced by counsel for OP has force that real dispute between the parties was regarding monetary transactions qua which compromise deed Ex.OP-1 was arrived at. As parties to compromise deed Ex.OP-1 are bound by term of Clause-2 thereof, culminated in execution and registration of sale deeds Ex.OP-7 and Ex.OP-8 in favour of wife of complainant and as such certainly now complainant estopped by his act and conduct from claiming that this compromise deed does not bind him or same is a sham document. This compromise deed Ex.OP-1 acknowledged to be executed between the parties by complainant and his wife through affidavits Ex.OP-2 and Ex.OP-3 got attested by each of them from Executive Magistrate, Dera Bassi. Specific reference to Clause-2 regarding flat No.903-D in Vrindavan Gardens, Peer Muchhalla, Zirakpur as well as to EWS Flat No.15 on 4th Floor thereof has been made in these affidavits Ex.OP-2 and Ex.OP-3 each and as such now complainant estopped from claiming that he is not bound by terms of compromise deed Ex.OP-1 because complainant through his wife got benefit of the compromise deed Ex.OP-1 on execution of sale deeds Ex.OP-7 and Ex.OP-8 referred above.
8. After going through Ex.OP-1 to Ex.OP-3 each, it is made out that EWS flat in question bearing No.15 on 4th floor of Vrindavan Gardens, Peer Muchhalla, Zirakpur can be allotted to an eligible person only as per Govt. instructions and that is why specific term incorporated in Ex.OP-1 as well as each in Ex.OP-2 and Ex.OP-3 that sale deed in respect of this flat can be got executed by complainant in favour of any eligible person (as per Govt. instructions).
9. After going through notification No.21/4/2014-IHgII/1891 issued by Govt. of Punjab, Department of Housing, EWS means household having an annual income from all sources upto Rs.3.00 lakhs. Further as per notification No. DTP(LG)-2016/2361 issued by Govt. of Punjab Department of Local Government, eligibility criteria for allotment of apartments/plots for Economically Weaker Sections (EWS) is that applicant or his/her spouse or his/her dependant children must not own any other pucca house/apartment or residential plot in Chandigarh, Mohali and Panchkula or in any of the municipal areas in any other State or free/lease hold or on hire purchase basis or on the basis of an agreement of sale, general power of attorney, Will etc. However, in this case after execution of sale deed by OP in favour of wife of complainant in municipal area of Dera Bassi, complainant became ineligible for allotment of EWS apartment/flat/plot due to Clause-2 of latter mentioned notification of Govt. of Punjab. It is on account of this that virtually complainant through settlement deed Ex.OP-1 opted for getting sale deed regarding EWS flat No.15 in question executed and registered in favour of any other eligible person. So this reflects as if complainant invested the amount for EWS Flat No.15 for investment purposes and that is why he opted for getting sale deed executed in favour of any eligible person as per Govt. instructions. As the agreement regarding flat in question was for investment purposes, and as such certainly complainant is not consumer within meaning of Section 2 (1) (d) of Consumer Protection Act. Even as per law laid down in case of Inderjit Dutta Vs. Samriddhi Developers & Others, II (2015) CPJ 342 (NC), in case booking of two flats done by one and the same person, then the same cannot be said to be for residential purposes, but the investment made for commercial purposes, owing to which complainant concerned will not be a consumer. Ratio of this case is fully applicable to the facts of the present case, more so when sale deeds Ex.OP-7 and Ex.OP-8 in the same apartments has already been executed in favour of wife of complainant and he is aspiring to book the flat in question not for having house, but for sale to another person, who may be eligible for allotment in EWS category. So certainly submissions advanced by counsel for OP has force that complainant is not a consumer within meaning of Section 2 (1) (d) of Consumer Protection Act. If the criminal cases have been registered against one or the other party, as evidenced by copies of FIRs Ex.OP-5 and Ex.OP-6, then the same is not matter of much concern for disposal of this complaint.
10. As a sequel of above discussion, complaint dismissed with the observations that complainant, if advised, may approach the appropriate Court/Forum for redressal of his grievance. Certified copies be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
June 07, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
