Chandigarh

StateCommission

RP/31/2015

Emaar MGF Land Limited - Complainant(s)

Versus

Colonel S.K.Malhotra - Opp.Party(s)

Sanjeev Sharma, Adv.

20 Aug 2015

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Revision Petition No.	31 of 2015
Date of Institution	17.08.2015
Date of Decision	20.08.2015

 

Emaar MGF Land Limited, SCO No.120-122, Sector 17-C, Chandigarh through its Authorized Signatory.

                  …..Revision Petitioner/Opposite Party.

Versus

1. Col. S. K. Malhotra S/o Maj. C. L. Malhotra, D-57, Army Flats, MDC, Sector 4, Panchkula.
2. Ms. Krishna Malhotra W/o Col. S. K. Malhotra, D-57, Army Flats, MDC, Sector 4, Panchkula.

…..Respondents/Complainants. 

Revision Petition under Section 17(1)(b) of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh. Sanjeev Sharma, Advocate for the Revision Petitioner.

 

PER DEV RAJ, MEMBER

            This Revision-Petition is directed against the order dated 27.07.2015 rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) in Consumer Complaint No.94 of 2015 titled ‘Colonel S. K. Malhotra and another Vs. Emaar MGF Land Limited’ vide which, it (District Forum) dismissed the application of the Opposite Party vide which it sought dismissal of the dismissal of the complaint on the ground that since the complainants had purchased two units from the Opposite Party, therefore, they were not consumers and the complaint was not maintainable .

2.         The facts, in brief, are that initially, the complainants had filed consumer complaint No.575 of 2013, which was partly allowed by the District Forum vide order dated 29.04.2014, operative part whereof is extracted hereunder:-

“15. For the reasons recorded above, we find merit in the complaint and the same is partly allowed. OP is directed:-

i)     To make payment of compensation for the delay in handing over the possession of the flat @Rs.5/- per sq. ft. per month of the super area to the complainants from the date of allotment i.e. 13.2.2008 till the date of notice of offering possession i.e. 16.8.2013.

ii)    To make payment of compensation to the tune of Rs.2 lacs to the complainants for unfair trade practice in increasing the super area of the flat and arbitrarily increasing the price of the flat.

iii)   To make payment of an amount of Rs.11,000/- to the complainants towards litigation cost.

16.   This order shall be complied with by the OP within one month from the date of receipt of its certified copy, failing which, the amounts mentioned at S.No.(i) and (ii) of the para aforesaid shall carry interest @12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.”

3.         Feeling aggrieved against the order dated 29.04.2014 passed by the District Forum, both the complainants as well as the Opposite Party filed separate appeals.

4.         First Appeal No.203 of 2014 filed by the complainants against the order dated 29.04.2014, was dismissed, at the preliminary stage, by this Commission vide order dated 03.06.2014.

5.         However, First Appeal bearing No.219 of 2014 filed by the Opposite Party was partly accepted by this Commission vide order dated 23.07.2014 in the following manner:-

“(i)    The appellant/Opposite Party is       directed       to pay   an amount of     Rs.2,00,000/- to      the respondents/     complainants as       compensation for deficiency in service, indulgence into unfair trade     practice, mental agony    and physical harassment, awarded by the District Forum.

(ii)   The appellant/Opposite Party is also directed to       pay an amount of     Rs.11,000/- to the       respondents/complainants towards    litigation       cost, awarded by the       District Forum.

(iii) The appellant/Opposite Party shall pay the amount mentioned in Clause (i) above, to the respondents/complainants, within a period of two months, from the date of receipt of a certified copy of this order, failing which, the    same shall carry interest @9% per annum, from the  date of filing the complaint i.e.07.10.2013, till realization, besides payment of costs of litigation aforesaid.

(iv)  All other directions given, and reliefs granted by the District Forum, in the impugned order, subject to the modification, aforesaid, which are contrary to and, in variance of this order, shall stand set aside.”

6.         Feeling aggrieved against the aforesaid orders dated 03.06.2014 and 23.07.2014 passed by this Commission, the complainants filed Revision Petitions No.3326 and 3327 both of 2014 before the National Consumer Disputes Redressal Commission, New Delhi (hereinafter to be referred as the National Commission), which are still pending decision and fixed for 27.01.2016 for final hearing.

7.         The Opposite Party filed Miscellaneous Application No.167 of 2014 before this Commission for refund of Rs.25,000/- alongwith interest, if any, accrued thereon, deposited by it at the time of filing the First Appeal No.219 of 2014 in pursuance of the order dated 09.06.2014 passed in the said appeal at the time of its admission. Since there was no stay from the National Commission and the Opposite Party, in proof of compliance of order dated 23.07.2014 passed by this Commission, had placed, on record, copy of the letter dated 29.09.2014 addressed to the complainants alongwith copies of casher’s order and postal receipt, the amount of Rs.25,000/- deposited by the Opposite Party at the time of filing the appeal, was ordered to be refunded in its favour, against valid receipt and on proper identification and the Counsel for the Opposite Party, namely, Sh. Ashim Aggarwal, Advocate received an amount of Rs.25,648/- on behalf of the Opposite Party and issued receipt dated 12.12.2014.

8.         Now the complainants, namely, Colonel S. K. Malhotra and Ms. Krishna Malhotra again filed a consumer complaint No.94 of 2015 before the District Forum pertaining to the same very residential unit No.J3-F-504, as involved in the earlier consumer complaint No.575 of 2013, wherein, they sought refund of Rs.6,00,000/- received by the Opposite Party towards stamp duty for execution of the sale deed, apart from compensation. During the pendency of the said consumer complaint, the Opposite Party moved an application for dismissal of the aforesaid complaint on the ground that the complainants were not consumers as they purchased two units from the Opposite Party and have also filed another complaint No.56 of 2015.

9.         Reply to the application, aforesaid, was filed by the complainants, admitting therein that the complainants did apply for a flat in the project floated by the Opposite Party in the year 2008 and later after a period of 5 years in the year 2013. It was further stated that the complainants also applied for the allotment of a plot and filed two separate complaints on different causes of action. It was further stated that the averment of the Opposite Party that the National Commission in its various judgments held that a person who bought two units/plots was not a consumer, was not correct. It was further stated that the complainants till date retained the flat bought in the year 2008 and repaying the loan borrowed alongwith their son. It was further stated that the application of the Opposite Party be dismissed being devoid of any merit.

10.       After hearing the Counsel for the parties   on the application, aforesaid, and, on going   through the evidence, and record of the case,       the District Forum, dismissed the said application vide the impugned order dated 27.07.2015, as stated above, in the opening para of the instant order. 

11.       Feeling aggrieved against the order dated 27.07.2015, passed by the District Forum, the instant Revision-Petition has been filed by the Revision Petitioner/Opposite Party.

12.       The Counsel for the Revision Petitioner/Opposite Party, submitted that the complainants approached the Opposite Party for purchase of an apartment and, accordingly, Apartment No.TVM J3-F05-504 was allotted in their favour. He further submitted that the respondents/complainants purchased another property bearing Plot No.99-EP-90-250. He further submitted that the respondents/complainants filed two separate complaints bearing No.CC/56/2015 and CC/94/2015 with regard to Plot No.99-EP-90-250 and Apartment No.TVM J3-F05-504 respectively. He further submitted that the Revision Petitioner/Opposite Party filed separate applications for dismissal of the aforesaid complaints on the ground that the respondents/complainants bought two properties from the Revision Petitioner/Opposite Party and, as such, they were not consumers. He further submitted that the District Forum, while allowing the application of the Opposite Party, dismissed consumer complaint No.56/2015 vide order dated 27.07.2015 (Annexure R-3). He further submitted that the District Forum, however, fell in to a grave error of law in dismissing the similar application of the Revision Petitioner/Opposite Party in consumer complaint No.94 of 2015. He further submitted that the District Forum has fixed the case for 19.08.2015 for filing reply to the complaint and has also imposed cost of Rs.500/- on the Revision Petitioner/Opposite Party, which is uncalled for. He further submitted that the Revision Petition be accepted and the impugned order dated 27.07.2015 be set aside.

13.       The core question, which falls for consideration, is, as to whether, the District Forum rightly dismissed the application of the Opposite Party, for dismissal of the complaint, vide order dated 27.07.2015 or not? Vide the application aforesaid, the Revision Petitioner/Opposite Party took a specific objection that since the respondents/complainants purchased more than one unit/plot, as such, they are not consumers and the complaint filed by them deserved to be dismissed.  A bare perusal of the written statement filed by the Revision Petitioner in consumer complaint No.575 of 2013, shows that no such objection was taken by it (Revision Petitioner/Opposite Party) in its reply. As already stated above, the said consumer complaint was  partly allowed by the District Forum vide order dated 29.04.2014, which was further modified by this Commission in First Appeal No.219 of 2014 filed by the Revision Petitioner/Opposite Party, vide order dated 23.07.2014.

14.       Not only this, while impugning the order dated 29.04.2014, the Revision Petitioner/Opposite Party never raised the issue of the complainants having purchased two plots/flats. Since the earlier consumer complaint No.575 of 2013 was also pertaining to the same Apartment No.TVM J3-F05-504, which is involved in consumer complaint No.94 of 2015, wherein the impugned order has been passed, the Revision Petitioner/Opposite Party, at this stage, cannot be heard to say that the respondents/complainants are not consumers, when the order dated 29.04.2014 partly allowing the said complaint, was already modified in First Appeal No.219 of 2014 by this Commission vide order dated 23.07.2014. So far as consumer complaint No.56 of 2015, which was dismissed by the District Forum on the ground that the complainants were not consumers, while allowing the similar application moved by the Revision Petitioner/Opposite Party in the said complaint, is concerned, it may be stated here that it is well settled law that each case has to be decided on the basis of facts involved in the same. The present consumer complaint No.94 of 2015 is, thus, continuation of the earlier complaint No.575 of 2013 and, therefore, the Opposite Party cannot take new objection with regard to its maintainability, which was earlier never taken in consumer complaint No.575 of 2013. Further, the other consumer complaint related to some other Plot No.99-EP-90-250, which has no concern with consumer complaint No.94 of 2015, pending adjudication before the District Forum. In our considered opinion, the District Forum while dismissing the application of the Opposite Party, rightly held that since the complainants Colonel S. K. Malhotra and his wife Mrs. Krishna Malhotra have already been held to be consumers in respect of residential unit No.J3-F-504 Tower No.J, the argument of the Counsel for the Opposite Party at this stage with regard to them (complainants) not falling within the definition of consumers could not be accepted. It (District Forum) also rightly held that it was the first flat, which was booked by the respondents/complainants in the year 2008 with the Revision Petitioner/Opposite Party and it could not be stated to have been purchased for investment. Thus, the impugned order, passed by the District Forum, does not suffer from any illegality or material irregularity, warranting interference of this Commission.

15.       For the reasons recorded above, the Revision-Petition is dismissed, with no order as to costs. The impugned order passed by the District Forum is upheld.

16.       The record of the District Forum be returned alongwith a certified copy of the order.

17.       The Revision-Petitioner through its Counsel is directed to appear before District Forum (I), U.T., Chandigarh on 28.08.2015 at 10:30 AM.

18.       The Revision-Petition file be consigned to Record Room, after completion.

19.       Certified Copies of this order be sent to the parties, free of charge.

Pronounced.

August  20,  2015.

 

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

MEMBER

 

 

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