CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.111/2016
SMT. DEEPA JOSHI
W/o. SHRI NIRMAL JOSHI
R/o. 490, POCKET-3, PASCHIM PURI,
NEW DELHI-110063.…..COMPLAINANT
Vs.
- M/S. VXL REALTORS PRIVATE LIMITED
(THROUGH ITS DIRECTOR)
ROOM NO. 602
58, SAHYOG BUILDING,
NEHRU PLACE,
NEW DELHI-110019.
ALSO AT:
509, AJIT SINGH HOUSE,
12, YUSUF SARAI, DDA COMM CENTRE,
NEW DELHI-110049.
- HARPREET SINGH TAKKAR
(DIRECTOR, VXL REALTORS PRIVATE LIMITED)
6/21, ROOP NAGAR,
-
- PRABJIT SINGH
(DIRECTOR, VXL REALTORS PRIVATE LIMITED)
11, CENTRAL DRIVE CHATTARPUR,
NEW DELHI-110030.
ALSO AT:
6/21, ROOP NAGAR,
-
- PANCHWATI SAHAKARI AWAS SAMITI LIMITED
THROUGH ITS PRESIDENT
DEEPAK MEHTA S/O SHRI N.S. MEHTA
R/O. C-143,B-09/9,
SECTOR-62, NOIDA,
GAUTAM BUDDHA NAGAR (U.P) .
- DEEPAK MEHTA,
S/o. SHRI N.S. MEHTA
(PRESIDENT, PANCHWATI SAHAKARI AWAS SAMITI LIMITED)
R/O. C-143, B-09/9,
SECTOR-62, NOIDA,
GAUTAM BUDDHA NAGAR (U.P.).
- YASHPAL MEHRA,
(SECRETARY, PANCHWATI SAHAKARI AWAS SAMITI LIMITED)
90/115, KURMANCHAL NIKETAN,
PATPARGANJ, DELHI-110092. .......OPPOSITE PARTIES
Date of Institution-29.03.2016
Date of Order- 21.10.2022
O R D E R
MONIKA SRIVASTAVA – PRESIDENT
The complainant has filed the present complaint seeking direction against OPs 1 to 6 wherein OP1 is VXL Realtors, OP2 and OP3 are directors of the company, OP4 is a Cooperative Group Housing Society registered under the U.P. Cooperative Housing Society Act 1960 and OP5 and OP6 are the President and the Secretary of OP4 respectively.
The complaint is filed to either refund the entire amount of Rs. 16,62,110/- along with interest or handover possession of MIG flat (Complete in all aspects) bearing No. B4/004 at Urban Heights Indirapuram, Ghaziabad to the complainant. The complainant is also seeking damages and litigation expenses.
- It is stated by the complainant that she was approached by OP5 and OP6 in the year 2007 and was offered the membership of OP4 with assurance that the society is developing residential colony at Indirapuram known as Nyayakhand III Ghaziabad through OP.
- It is further stated by the complainant that she was shown and handed over a copy of MoU (Annexed as Annexure P-1) executed on 28.11.2006 between OP4 through OP5 and OP6.
- In addition of MoU she was also shown collaboration agreement dated 22.03.2007. This MoU was on a clear understanding of assurance that OP4 i.e.Society would collect the amount from its members as may be due and payable to OP1 within the timeframe as stipulated in aforesaid collaboration agreement.
- Complainant paid a sum of Rs. 100/- towards share money and OP5 and OP6 issued non transferrable share certificate 83 dated 28.06.2007 (Annexed as Annexure P-2) i.e. membership of OP4.
- It is further stated by her that besides the aforesaid share money of Rs. 100/-, the complainant also paid entry fee of Rs. 10/- ground money of Rs. 1,55,000/- to OP4, vide cheque No. 045774 dated 28.06.2007 drawn on SBI, Jwala Heri and was also issued a receipt dated 29.06.2007 by OP4 acknowledging the said payment.
- It is stated that OP4 specifically issued a membership cum provisional allotment certificate to the complainant dated 27.07.2012 (Annexed as Annexure P-3). Accordingly, said certificate one MIG flat measuring 900 square feet (Annexed as Annexure P-4) in the project mentioned above was allotted for a total consideration of Rs. 19,08,000/- which was payable in 15 installments commencing from 31.12.2006- 31.01.2009. Along with this car parking cost was Rs. 1,00,000/- for reserved basement car parking / Rs. 75000/- per car for reserved stilled car parking/ Rs. 25,000/- for reserved open car parking which was to be paid along with the final installments.
- It is further stated that as per the General Body Meeting held on 14.12.2008 (Annexed as Annexure P-5) draw of flats was supposed to be held in the Month of May 2009 subject to timely payments as per the revised schedule up to the month of April 2009 and the possession of the flats was to be handed over in the Month of August 2009 by OP4.
- It is further stated by the complainant that she has been prompt and regular in making payments and has made a payment of Rs. 16,62,110/- (Annexed as Annexure P-8), the receipt of which is duly acknowledged as against total cost of Rs.19,08,000/-.
- It is stated by the complainant that the no due certificate issued by the OP4 reference No. PDSASL / 2011 dated 16.08.2013 that flat No. B-4/004 measuring area of 900 square feet was allotted to the complainant against the total cost of flat of Rs. 20,67,110/- which includes escalation and administrative charges as against the agreed amount of Rs. 19,08,000/-.
- It is the case of the complainant that even after a lapse of 6 to 7 years and having paid 85% of the total cost of flat way back in 2009, the possession of the flat has not been handed over to the complainant.
- It is stated by the complainant that she received a communication dated 14.10.2013 (Annexed as Annexure P-9) from OP1 that a sum of Rs. 15,37,465/- is still due for payment and was instructed to pay the said amount within 7 days.
- It is stated by the complainant that OP1 has demanded illegal and unwarranted amount of Rs. 15,37,465/- directly from the complainant which is violative of the terms and conditions of MoU and also infringes upon the terms and conditions of the tripartite agreement signed between the parties (Annexed as Annexure P-6).
- It is stated by the complainant that the construction of the building is a shoddy infrastructure which represents shabby and deplorable state of affairs of all the OPs.
- It is stated by her that despite numerous visits, calls, messages sent by the complainant to OPs 1 to 6 for completion of construction flat and revoking the demand letter dated 14.10.2013 as unreasonable and unwarranted such request went unheeded.
- Legal notices (annexed as Annexure P-10) were sent which was served on OP1, OP4, OP5 and OP6 but no response was received from them. It is also stated by the complainant that she is ready and willing to pay the legitimate balance amount of the total cost of the flat.
Defense of OP1 to OP3 was struck off by this Commission on 11.07.2016.
- Per contra, OP4 to OP6 have taken preliminary objections that this Commission does not have the territorial jurisdiction to decide the present complaint.
- They have also taken objection that the present complaint shall be governed by the bye laws of society as envisaged in UP Co-operative Societies Act, 1965 which provides that disputes are to be referred to Registrar of Societies (ROS) for arbitration.
- It is also stated that the relationship between the complainant and OP4 and OP6 is not that of a consumer and supplier of goods and services.
- It is also stated that the complainant has not approached this Commission with clean hands and has suppressed material facts in respect of OP5 and OP6 and therefore, the complaint should be dismissed with cost.
- It is further stated that the complainant has not been able to pin point any deficiency on part of OP5 and OP6. And that they were only acting on behalf of OP4 and had no personal interest.
- It is also stated that OPs 5 and 6 do not hold any post as OP4 is not functioning being defunct and no elections have been held after 2010 nor any activities were done by the society and therefore, case against them is not maintainable.
- It is stated by the OPs that the prayer for refund of consideration/ possession of the flat mentioned above cannot be granted by OPs 4 to 6 as they are neither the owner nor in possession of the property in question and their functioning was limited to facilitate members in getting possession from OP1.
- On merits, the OPs have stated that it is only the complainant who approached OP4 to become member of the society and not otherwise. It is reiterated by them that OP5 and OP6 were only working for the benefit all the members and not for personal gain. It is also stated that no false and frivolous assurances were provided to the complainant by OP5 and OP6.
- It is stated by them that the share certificate No. 83 dated 28.06.2017 was issued but was issued in the name of Nirmal Joshi and not in the name of the complainant. It is further stated by them that payments were made by Nirmal Joshi towards the cost of the flat and the complainant is wrongly claiming that the amount was paid by her.
- It is admitted by the OPs that as per the collaboration agreement dated 22.03.2007 and MoU dated 28.11.2006 between OP4 and OP1, the members of OP4 were required firstly, to pay the installments to OP4 and thereafter, OP4 would pay the consolidated amount to OP1 directly.
- The OP has further admitted that in GBM of OP4 held on 14.12.2008 it was resolved that the possession of the flats would be handed over to the members by the month of August 2009 but on account of default of OP1 and its two -three members out of which one of them is a complainant, the possession of the flats have not been given till 2013.
- The OP4 then took up this matter with OP1 and vide addendum dated 24.02.2010 to the main MoU OP1 agreed to pay penalty to the members as per agreed rates in case of delay in possession. The OP is annexed copy of minutes of GBM and addendum as annexure ‘A’.
- They have denied that they are in collusion and connivance with OP1 and in case, money was demanded from the complainant by OP1 then it is in violation of collaboration agreement dated 22.03.2007 and addendum dated 24.02.2010 and tripartite agreement dated 17.08.2012.
- In their rejoinder, the complainant has stated that in the reply filed by OP6, the affidavit refers him to as secretary of OP4.It is also stated that the reply is not supported by verification and therefore, suffers from illegal infirmity.
- In response to the objection of territorial objection raised by the OP. It is stated by the complainant that office of OP1 is located within the territorial limits of the Commission.
- The complainant states that the objection raised by the OP relying on Section 70 of the UP Co-operative Societies Act, 1956 relates to other matters of Constitution, Management, Business of the Cooperative Society but disputes relating to disciplinary action or like the one pending before the Commission are not covered under Section 70 of the said Act.
- It is stated by the complainant relying on the terms of MoU that the complainant being a member of OP4 is a consumer as she has paid the cost of the land and flat No. B-4/004 measuring 900 square feet to OP4. In this regard the complainant has relied on the no dues certificate issued by OP4 on 16.08.2013 which is annexed at page 68 of the complaint whereby only a sum of Rs. 4,05,000/- was to be paid to OP1 towards the balance flat cost by the complainant.
- It is stated by the complainant that OP5 and OP6 are liable for their acts of omission and commission which has resulted in deficiency of service and unfair trade practice.
- It is also stated by her that it was the primary duty of OPs 4, 5 and 6 to facilitate the complainant in taking possession of the flat from OP1.
- It is stated by her that the defense taken by OP5 and OP6 that OP4 has now become redundant is not correct as OP4 has duly issued ‘NoDuesCertificate’ to the complainant on 16.08.2013.
- With regard to the issuance certificate No. 83 dated 28.01.2007 it is stated by the complainant that initially Sh. Nirmal Joshi is the husband of the complainant had applied for the membership of the society i.e. OP4 but later the name of the complainant was substituted in the place of her husband which is evident from the letter of OP4 dated 27.07.2012 and is signed by OP5 and letterof OP1 for execution of allotment agreement in favour of the complainant. Pursuant to that, letter of allotment was executed on 17.08.2012 therefore, as such the complainant is the sole allottee and bonafide member of OP4.
- The complainant has not denied that some balance payment had to be made by her in order to get the possession of the said flat. It is further stated by her that OP4 and OP6 have failed to deliver the flat to the complainant even after her paying almost 85% of the payment to OP4.
- It is stated by the complainant that the complaint is filed well within the prescribed period.
The Complainant and the OP have filed their respective reply, rejoinder, evidence affidavits and written submissions on record.
Defense of OP1 to OP3 was struck off by this Commission on 11.07.2016.
This Commission has gone through the entire material on record and the preliminary objections raised by the OP are primarily, twofold. The first relates to territorial jurisdiction, it is seen that the offices of the OP is situated within the territorial jurisdiction of this Commission therefore the objection relating to territorial jurisdiction does not hold good.
The second objection relation to arbitration clause contained in the Agreement as per which the matter should be referred to arbitration is not sustainable in view of the judgment of the Hon’ble Supreme Court in Emaar MGF Land Ltd. vs Aftab Singh 710/2015that the objective of The Consumer Protection Act was to enable Consumer to provide with the remedy in case of defect in goods and the intention to introduce amendment in section 8 in The Arbitration and Conciliation Act was not to bar the jurisdiction of any court or law under which the parties can claim any remedy and similarly if a person is entitled to seek and additional remedy provided under the statutes and does not opt for that additional/special remedy and he is a party to an arbitration agreement, there is nothing which can prevent him from disputes being proceeded in arbitration.
The third objection being that the matter is governed by UP Co-operative Societies Act, 1956 and therefore, it cannot be entertained by this Commission. We do not find ourselves in agreement with this argument in view of the judgment of the Hon’ble Supreme Court passed inVirender Jain vs Alaknanda Co-op Society in Civil Appeal no. 64/2010.
It is seen that the OP 4 to 6 have, in their reply, admitted that the OP 4 was formed for the purpose of developing residential colony at Indirapuram known as Nyayakhand III Ghaziabad through OP 1 and for that purpose, collecting money from the members of OP 4 and provide the members, possession of the flats as per the MoU (Annexed as Annexure P-1) executed on 28.11.2006 between OP4 through OP5 and OP6 and Collaboration Agreement dated 22.03.2007.
It is also admitted by the said OP 4 through its officials that in their GBM dated 14.12.2008 it was resolved that the possession of the flats would be handed over to the members by the month of August 2009 and in furtherance of that OP4 then took up this matter with OP1 and vide addendum dated 24.02.2010 to the main MoU, OP1 agreed to pay penalty to the members as per agreed rates in case of delay in possession.
Therefore, this Commission is of the view that the OPs are jointly deficient in their service, OP 1 being the builder i.e VXL Realtors and OP 4 in handing over possession to its members in time. These OPs are directed to hand over the possession of the said flat within three months from the date of the said order. The complainant is directed to pay Rs. 4,05,000/- which is the balance payment of the flat along with 9% p.a interest to OP 1 at the time of execution of sale-deed. In case the OP 1 is not able to provide the flat to the complainant within the said time frame then the OP 1 would be liable to pay to the complainant the amount deposited by the complainant with the OP 1 through OP 4i.e Rs. 16,62,110/- along with interest @ 9% p.a from the date of deposit till realization within three months from the date of the said order failing which the interest shall be payable @ 10% p.a. Along with this the OP 1 is also liable to pay a sum of Rs. 50,000/- as compensation to the complainant on account of mental harassment caused to her.
The copy of the order be provided to the parties as per rules. File be consigned to the record room. Order be uploaded on the website.
