Chandigarh

DF-I

EA/140/2015

Ashwani Anand - Complainant(s)

Versus

Gee City Builders Pvt. ltd. Regd. office at SCO No. 358-359 Sector-34 - Opp.Party(s)

Ramesh Kumar Bamal

24 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

==========

Execution Application No	:	EA/140/2015
In Consumer Complaint No	:	CC/515/2009
Date  of  Institution	:	12/10/2015
Date   of   Decision	:	24/05/2016

 

 

 

 

 

Ashwani Anand son of Sh.B.D. Anand, resident of House No.85, Sector 7, Panchkula (Haryana).

 

…........... Complainant.

Vs

 

Gee City Builders Private Limited, Regd. Office at SCO 358-359, Sector 34, Chandigarh through its Director Sh.Yoginder Mittal.

 

Fresh Address:

 

Gee City Builders Private Limited, now shifted to Flat No.1464, Sector 43-B, Chandigarh.

 

…............. Opposite Party

 

BEFORE:   MRS.SURJEET KAUR        PRESIDING MEMBER

          SH. S.K. SARDANA        MEMBER

 

For Complainant	:	Sh. Y.P.Singla, Adv. Proxy for Sh. Ramesh Kumar Bamal, Adv.
For Opposite Party	:	Sh. Gaurav Chopra, Advocate.

 

PER SURjeet kaur, presiding MEMBER

 

 

1.      The Complainant had preferred three Consumer Complaints bearing No.515, 516 and 517 of 2009 before this Forum. The same were allowed vide common order dated 20.10.2009 for the reasons mentioned in the complaints and the Opposite Party was directed as under:-

“The OP is directed to complete the construction in all respects and deliver possession of the premises to the Complainants within 6 months from today. If the construction is not completed or the possession is not delivered, the OP would refund the amount of all the three flats of Rs.9,07,250/- + Rs.9,07,250/- + Rs.9,07,250/- = Rs.27,21,750/- to the Complainants along with interest at the rate of 9% per annum since 05.11.2008 till the last day of the month in which the amount is paid to the Complainants. The OP shall also pay a sum of Rs.5,000/- as litigation cost within 30 days from the date of receipt of copy of this order.” 

 

2.      Not satisfied with the order of this Forum, the Complainant filed Appeals No.649, 650 and 651 of 2009, before the Hon’ble State Consumer Disputes Redressal Commission, U.T. Chandigarh (for brevity, ‘Hon’ble State Commission’). Since, common questions of law and facts were involved, Hon’ble State Commission disposed of all the appeals vide common order dated 16.09.2010, upholding the order of the District Forum.

 

3.      Still aggrieved with the order of the Hon'ble State Commission, the Complainant had filed Revision Petitions No.4660, 4661 and 4662 of 2010 before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi (for brevity, ‘Hon’ble National Commission’).  Since, facts were similar in these cases and common question of law was involved, these Petition were disposed of by the Hon’ble National Commission vide common order dated 18.12.2014, upholding the order of this Forum and the Hon’ble State Commission.

 

4.      Now, the complainant has filed an Execution Application under Section 27 of the Consumer Protection Act, 1986, complaining that the OP has not complied with the order dated 20.10.2009 passed by this Forum, which has attained finality.

 

5.      The execution application filed by the Complainant suffers from many infirmities. The issues involved have been thoroughly deliberated and discussed at three levels i.e. by the District Forum, the Hon'ble State Commission and by the Hon'ble National Commission. The order of this District Forum has reached finality because of the fact that the same was upheld by the Hon'ble State Commission and the Revision Petition filed by the Complainant against the Opposite Party at the Hon'ble National Commission was also dismissed.  

 

6.      In view of the above, the order passed by this District Forum was to be executed by the Opposite Party. The operative part of the order dated 20.10.2009 passed by the District Forum stands reproduced in Para No.1 hereinabove.  The part of the order has already been executed i.e. a sum of Rs.5,000/- as litigation costs has already been paid by the Opposite Party to the Complainant. So far as the remaining part of the order is concerned, the Opposite Party was to complete the construction in all respects and deliver the possession of the premises to the Complainant within six months from the date of the order. This was duly done by the Opposite Party and the same finds mentioned in the order dated 18.12.2014 passed by the Hon'ble National Commission in Para No.13, which reads as under: -

 

“7.  We have given our thoughtful consideration to the above submissions putforth on behalf of the parties and find that admittedly the possession of flats was offered to the complainant within six months of the passing of the impugned order dated 20.10.2009 of the District Forum but the complainant is adamant  only for the refund of the cost price of three flats together with interest as stated above.  A perusal of the agreement dated 4.11.2006 entered  between the parties goes a longway to show that there was no such clause regarding the refund of the deposited amount. The agreement was duly signed by the parties in the year 2006. The terms and conditions incorporated in the agreement   had  been no where  challenged by the complainant  However, now the contention of learned counsel for complainant  is that   non-inclusion of the term and condition regarding the refund of the amount makes the agreement void and unenforceable. For that, a great deal of evidence is required to be led by the parties for coming to the conclusion that the agreement entered into between the parties is void and this fact, we feel, can be gone into by the civil court.

8.    Further, here in the instant case the   complainant is stated to have been cheated   as in the opening para of the agreement it was stated that the requisite permissions had already been obtained regarding raising of the construction. However, the material placed on the file  indicates that the permission for raising the construction was finally obtained on 4.1.2008. This question of cheating and playing fraud by OP raised before us during the course of arguments should be left to be decided by the civil court as held in many pronouncements made by the Hon’ble National Commission.

9.   Now coming to the judgment rendered by this Commission in Shamsher Singh Sidhu Vs Parsvnath Developers Limited etc. in Complaint case No.4 of 2009 decided on 19.8.2010, relied upon by the complainant. We have gone through this judgment also and find that there was a specific clause in the Agreement vide which an allottee/buyer was entitled to get refund of the amount in case any breach of condition was shown on the part of OP/developer/builder. Here in the instant case, as discussed above, the position is quite contrary to the facts of the above cited case.  In this view of the matter, no benefit can be derived by the learned counsel for complainant from the observations made by us in the above said ruling.

10.    In view of the foregoing discussion, we find no illegality or impropriety in the impugned order passed by the District Consumer Forum.  However, we before parting with this order observe that complainant would be at liberty to knock at the door of appropriate civil court for seeking redressal of his grievance regarding the refund of the amounts together with interest deposited by him with OP, in accordance with law.” 

 

The Hon'ble National Commission also discussed at length all other issues raised by the Complainant in Para No.16, which reads as under:-

 

“11.    That in case of issuance of the completion certificate by Competent Authority, release of sewerage connection, water connection and electric connection by the concerned authorities are without delay the possession of the said apartment will be delivered by the seller to the purchaser within a period of 24 (Twenty Four) months from the date of commencement of construction of the said unit or from the date of signing this agreement, whichever is later, subject to force majure. The Seller shall not incur any  liability if it is unable to deliver the possession of the said premises by the time aforementioned, if the completion of the building(s) is delayed by reason of non-availability of steel and/or cement or other materials or water supply or electric power or slow down strike or due to a dispute with the construction agency employed by the Seller, civil commotion or by reason of war, or enemy action, or earthquake or any act of God, delay in issue of completion certificate by Competent Authority, delay in release of sewerage and water connection by the concerned authority or if non-delivery of possession is as a result of any competent authority or for any other reason beyond the control of the Seller and in any of the aforesaid events the Seller shall be entitled to a reasonable extension of time for delivery of possession of the said premises”.

 

          In view of the above detailed discussion in the present execution for compliance of the order of the District Forum-I, the money cannot be refunded and this matter was agitated before the Hon'ble State Commission, as well as the Hon'ble National Commission, but the Complainant could not succeed. The factum that the Complainant was asked to take the possession of the flat stands proved from Possession letters dated 23.01.2010 and 30.11.2015 produced on record by the Opposite Party. The conduct of the Complainant seeking the refund of amount clearly proves that he is not interested to take the possession, but interested in the refund of money only. So, the Complainant has not come to this Forum with clean hands. The Complainant cannot be allowed to have double standards. His only remedy is to seek the possession of the flat, which was offered by the Opposite Party. Even though the Complainant was earlier offered the possession of the flat, which he declined himself, therefore, this execution application deserves dismissal. The same is accordingly, dismissed, with an observation that the Complainant/Decree Holder after making the payments of the balance amount, as per Agreement, can seek the possession of the flats.

 

7.      Certified copy of this order be sent to the parties, free of charge, for compliance.

 

	Sd/-	Sd/-
24/05/2016	(SURJEET KAUR) PRESIDING MEMBER	(S.K.SARDANA) MEMBER