Chandigarh

StateCommission

CC/584/2016

Sushil Kumar & Others - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Developers Private Limited & Others - Opp.Party(s)

Saurabh Gautam Adv.

22 Mar 2017

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	584 of 2016
Date of Institution	:	14.09.2016
Date of Decision	:	22.03.2017

 

1. Sushil Kumar son of Sh.Chander Bhan Bansal, resident of House No.99, Sector 16, Panchkula.
2. Sushil Kumar son of Sh.Ram Sarup, residence-cum-office SCF-115, Grain Market, Sector 26, Chandigarh.

……Complainants

V e r s u s

1. M/s Omaxe Chandigarh Extension Developers Private Limited,  through its Director, having its Branch Office at SCO No.139-140, First Floor, Sector 8-C, Chandigarh.
2. M/s Omaxe Chandigarh Extension Developers Private Limited, 10, Local Shopping Complex, Kalkaji, New Delhi-110019. (Corporate Office), through its Chairman.

              .... Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:       Sh.Saurabh Gautam, Advocate for the      complainants.

      Sh.Munish Gupta, Advocate for the opposite    parties.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                It is case of the complainants that for the personal use of their family, they purchased a residential plot, measuring 1000 square yards, in a residential colony, launched by the opposite parties, in Omaxe New Chandigarh, Mullanpur, Punjab. The application to purchase above said plot was made under the ‘Acre Scheme’, launched by the opposite parties. In a way, the opposite parties were to purchase of a piece of land and after development, they were to give its part to the complainants. Accordingly, the complainants joined their hands with the opposite parties and contributed funds for purchase of part of the land, which was to be part of the said colony. It is case of the complainants that they were made to pay an amount equal to the price of ½ acre of land and in lieu thereof, after development, the opposite parties promised to hand over them 1000 square yards plot. Agreement was signed between the parties on 23.12.2011 Annexure C-1, showing terms and conditions of allotment of plot, to the complainants. It was further stated by the complainants that after development, possession of the plot measuring 1000 square yards, was agreed to be given within 18 months, from the date of making payment. As per facts on record, the entire payment appears to have been made i.e. an amount of Rs.75.50 lacs, upto 28.09.2011. Detail thereof is shown in Agreement dated 23.12.2011. As per terms and conditions of the above agreement, possession was agreed to be given of 1000 square yards, within 18 months, from the date of receipt of full payment. It is on record that the amount already stood paid. It was further stated that in case, it was not possible for the opposite parties to give possession of the plot, then towards full and final settlement, the complainants were entitled to charge an amount of Rs.1,09,47,500/-. Clause 23 of the agreement reads thus:-

“The First Party contemplates to allot the said plots on grant of licenses for the said Colony within a period of 18 (Eighteen) months from the date of the receipt of full payment of agreed funds from the Second party. In case the First Party fails to allot the said plots (in full or in part) within a period of 18 (Eighteen) months from the date of the receipt of full payment of agreed funds from the Second Party or within a period further mutually extended by both the parties, then the Second Party at its option, after the expiry of such extended period, shall be entitled to get the refund of Rs.1,09,47,500/- (Rupees Once Crore Nine Lac Forty Seven Thousand Five Hundred Only) of the said land from the First Party as full and final settlement. The Second Party for this purpose shall provide a minimum notice period of 30 days in writing to the First party for refunding the entire payment.”

 It is also necessary to mention here that initially the contract was signed between the opposite parties and complainant no.1 and one Raj Kumar Bansal and Anju Bansal. However, thereafter, on 31.01.2012, the last two persons transferred their share in the name of complainant no.2. It was duly noticed by the opposite parties. Copy of undertaking has been placed on record as Annexure C-2. It is case of the complainants that despite request made, no steps were taken by the opposite parties, to put them in possession of 1000 square yards plot. Request made by them failed to yield any result. Legal notice was issued on 26.05.2014 requesting the opposite parties to pay interest/compensation @24% p.a. on the deposited amount till date of possession of plot measuring 1000 square yards. Damages were also claimed. The said legal notice was replied by the opposite parties stating that as per terms and conditions of the agreement, as per copy available with them, the complainants are entitled only to get a plot measuring 500 square yards and not 1000 square yards, as claimed by them. The complainants received letter dated 04.07.2014, in which also,  it was so said that the complainants are entitled to get plot measuring 500 square yards only, against contribution made by them to purchase agricultural land measuring about ½ acre. Qua that dispute, lot of correspondence was exchanged between the parties. The complainants sent copy of the Agreement retained by them, wherein it is mentioned that they were entitled to get plot measuring 1000 square yards. When nothing happened, the complainants went to the police, however due to influence of the opposite parties, no action was taken. It is stated that during inquiry, the opposite parties agreed to refund the amount of Rs.1,09,47,500/-, however, the said amount was also not paid. Under above circumstances, the present complaint was filed before this Commission.

2.         Notice was issued to the opposite parties.
3.         The opposite parties, in their joint written reply controverted the averments made by the complainants, that they were allotted plot measuring 1000 square yards. It was stated that only 500 square yards plot was allotted to the complainants. Further that since the claim raised by the complainants exceed one crore, as such, this Commission has no pecuniary jurisdiction to entertain and decide this complaint. It is also stated that let matter be referred to an arbitrator for its settlement, in terms of Clause 29 of the Agreement. Territorial jurisdiction of this Commission was also challenged. In this regard, an application under Section 8 of the Arbitration and Conciliation Act, 1996, was also filed by the opposite parties, which was disposed of vide order dated 09.02.2017, with the direction that question qua arbitration will be considered, at the time of final arguments in the main case.  It was further stated that the complainants are the collaborators, as such, they will not fall within the definition of consumer. To show that the complainants are entitled to get only 500 square yards plot, a photocopy of the original agreement, referred to above was also placed on record as Annexure R-1. It was further stated that due to some typographical mistake, in copy of the Agreement retained by the complainants, area of the plot was wrongly mentioned as 1000 square yards. It was further stated that serious issues are involved in the complaint, as such, this Commission cannot entertain the same, in summary proceedings, as such, the matter be referred to the Civil Court. It was further stated that the complaint is time barred. However, purchase of the said plot, as mentioned in the complaint and payments made, in respect thereof, are not disputes. It is also not disputed that possession of the plot was to be delivered within 18 months, as referred to above. The remaining averments were denied being wrong.
4.         The contesting parties led evidence in support of their case and raised arguments, in tune of the facts narrated above, which were heard in detail.
5.         After hearing Counsel for the parties and the evidence on record, we are of the considered opinion that this complaint is not maintainable, before this Commission. The complainants are second allottees. They are claiming relief, on the basis of agreement dated 23.12.2011 Annexure C-1. It is their case that the possession of plot of 1000 square yards, after developing the land purchased by them was to be handed over within18 months, from the date of making entire payment, which had already been made on 28.09.2011. Possession of the plot was not delivered. They filed this complaint.
6.         It is stated by Counsel for the opposite parties that as per agreement, referred to above, in case of failure of the opposite parties to hand over possession as stated above, the complainants were entitled to get an amount of Rs.1,09,47,500/-. This complaint has very cleverly been drafted, seeking refund of amount paid within interest, so that claim raised remains within the pecuniary jurisdiction of this Commission.  By doing so, they indulged into twisting the facts. It is stated that value of the claim raised by the complainants including payment of compensation etc. is more than one crore, as such, this Commission has no pecuniary jurisdiction to entertain this complaint.

                We are going to agree with the contention raised by Counsel for the opposite parties.  It is apparent on record that in case of failure of the opposite parties, as per agreement dated 23.12.2011 Annexure C-1, the complainants, in terms of the provisions of Clause 23 of the said Agreement, as reproduced in earlier part of this order, were entitled to recover an amount of Rs.1,09,47,500/- towards full and final settlement of their claim. As such, in view of ratio of judgment of Larger Bench, passed by the National Consumer Disputes Redressal Commission, New Delhi (National Commission), titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016, it will not be open to this Commission to entertain this complaint.

7.         Otherwise also, there exists a serious issue on merits. It has been claimed by the complainants that they were allotted a plot measuring 1000 square yards, whereas, to the contrary, it is stated by the opposite parties that they allotted a plot measuring 500 square yards, to the complainants.  The opposite parties have also placed on record copy of the original agreement, to substantiate their stand, wherein it was so mentioned. At this stage, since we are going to return this complaint, for filing it before the appropriate Fora, having pecuniary jurisdiction to entertain the same, as such, we are not going to enter into the above said dispute of area of plot, existing between the parties.
8.         In view of above, this complaint is disposed off, being not maintainable, with liberty to the complainants to file the same before the Fora, having pecuniary jurisdiction or to avail any other legal remedy available to them, as per law.
9.         Certified Copies of this order be sent to the parties, free of charge.
10.         The file be consigned to Record Room, after completion.

Pronounced.

22.03.2017

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 Rg.