Chandigarh

DF-II

CC/299/2015

Rajnish Bansal Adv. - Complainant(s)

Versus

M/s Samar Estates Private Limited - Opp.Party(s)

Sh. Manu K. Bhansari Adv.

30 Mar 2016

ORDER

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

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Consumer Complaint  No	:	299 of 2015
Date  of  Institution	:	05.06.2015
Date   of   Decision	:	30.03.2016

 

 

 

 

 

Rajnish Bansal s/o Sh.Kailash Chand, Resident of H.No.13, Mohalla Firni, Sunami Gate, Sangrur, Punjab.

 

             …..Complainant

Versus

 

1]  M/s Samar Estates Pvt. Ltd., 254, Notified Area Committee, Manimajra, Chandigarh, through its Chairman-cum-Managing Director.

 

2]  M/s Samar Estates Pvt. Ltd., Site/Administrative Office, ESS VEE Apartments, Sector 20, Panchkula, through its Manager.

 

….. Opposite Parties

 

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

 

[2]

 

Consumer Complaint  No	:	302 of 2015
Date  of  Institution	:	05.06.2015
Date   of   Decision	:	30.03.2016

 

 

 

 

 

1]  Kiran Rani w/o Sh.Rajneesh Bansal, resident of H.No.13, Mohalla Firni, Sunami Gate, Sangrur, Punjab.

 

2]  Krishna Rani w/o Sh.Kailash Chand, resident of H.No.13, Mohalla Firni, Sunami Gate, Sangrur, Punjab. 

             …..Complainants

Versus

 

1]  M/s Samar Estate Pvt. Ltd., 254, Notified Area Committee, Manimajra, Chandigarh through its Chairman-cum-Managing Director.

2]  M/s Samar Estates Pvt. Ltd., Site/Administrative Office, ESS VEE Apartments, Sector 20, Panchkula through its Manager.

 

….. Opposite Parties

 

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

 

For complainant(s)      :     Sh.Ravinder Kumar and Ms.Anamika                      Mehra, Advocates

 

For Opposite Party(s)   :     Sh.Munish Kapila, Advocate

 

 

PER PRITI MALHOTRA, MEMBER

 

         By this common order, we propose to dispose of the above mentioned two consumer complaints in which similar questions of law and facts are involved.

2]       The facts are being taken from the present Complaint Case No.299 of 2015 – Rajnish Bansal Vs. M/s Samar Estates Pvt. Ltd.  & Anr.

 

3]       As per the case, the complainant booked 3 Bedroom along with Servant Quarter Apartment No.E-601 measuring 1725 sq. ft. with OPs for total price of Rs.71.50 lacs. The Apartment Buyers Agreement was executed on 31.3.2011 between the complainant and the OPs (Ann.C-1).  It is averred that the sale executive of the OPs assured that the possession of the apartment would be delivered in 3 years time.  As against the total sale consideration, the Complainant had deposited an amount of Rs.17,87,500/- (Ann.C-2 & C-3).  Thereafter, the complainant received a letter dated 01.02.2012 from OPs for payment of an amount of Rs.7,66,341/- along with service tax of Rs.15,275/- and also Rs.1066/- towards the interest on account of delayed payment (Ann.C-4), whereupon the complainant visited the site of construction and shocked to see that there was no substantial development and the money demanded by the OPs was not commensurate with the progress at the site.  The complainant took this matter with the Opposite Parties, but to no effect, hence the complainant requested for refund of the amount vide letter dated 2.4.2012 (Ann.C-5). However, the OPs again raised the demand for the payment vide Ann.C-6, dated 5.12.2013 & C-9, dated 9.7.2014, whereupon the complainant again visited the site of construction and surprised to see that even a single flat in any of the tower of the Opposite Parties has not been completed. Thereafter, the complainant sent legal notice, but to no avail. Hence, alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has filed the instant complaint.

4]       The Opposite Party filed written statement by taking some preliminary objections and submitted that this Forum for all intents and purposes has no territorial jurisdiction to try and entertain the present complaint. It has been pleaded that the period of completion of the apartment within three years as per the Clause 32 of the ‘Apartment Buyers Agreement’ was subject to the condition of the complainant/allottee paying the due installments in time as per schedule given in the application form. It has further been stated that the complainant paid only a sum of Rs.17,87,500/-  against the total booking price of Rs.71.50 lacs and failed to pay the balance amount as per the payment schedule mentioned in the application form and as per the terms and conditions of the ‘Apartment Buyers Agreement’. It has further been stated that  license No.609 to 612 of 2006 were granted by the Director Town & Country Planning, Haryana for development of a Group Housing Colony on the land measuring 21.75 acres falling in the revenue estate of village Kundi, Tehsil and District Panchkula. The building plans for the colony area were submitted for approval in the office of Director, Town and Country Planning on 21.11.2006 which was approved by the authorities on 03.01.2007. As per terms and conditions of the license and approval of the building plans, the OP was required to seek:-

1.    No objection certificate/ environmental clearance’ from the Ministry of Environmental and Forests, Govt. of India as per requirement of the notification dated 14.09.2006.
2.    Permission from the National Airport Authority of India.
3.    Director Local Bodies, Haryana for fire safety measures before starting construction at site.

         It took about 18 months in getting all the above said approvals from the Competent Authorities. The construction work of the first phase of the project could be started only in the month of October, 2007 and the construction work of Tower E in the second phase in which the complainant has booked the apartment was started on 15.01.2012. It has further been stated that   the complainant got transferred the apartment in question on 01.3.2011 on construction linked installments payment plan, already booked by the Realpro Assests Pvt. Ltd. with the OP.  Submitted further that as per terms & conditions of the application form for allotment, the complainant was required to make the payment as per payment schedule. As the roof slab upto 10th floor has been casted upto 12.01.2015 and brick work of the walls has also been completed and thus 80% of the agreed price has become due from the complainant till 12.01.2015 and as no installments have been deposited by the complainant after 25.3.2011, thus a sum of Rs.53,85,255/- as on 31.8.2015  was due against the complainant. It is claimed that the complainant has failed to fulfill the necessary requirements of terms & conditions of the application form as well as Apartment Buyers Agreement.  Accordingly, the complainant is liable to pay 18% interest on delayed payments as per clause 10 of the ‘Apartment Buyers Agreement’. It is submitted that in the absence of payment of due installments in time by the allottees to the OP, construction work of the apartments could not be completed in time, therefore, delay in completing the project in time.

         It is submitted that the OP was making efforts to complete the construction but due to worldwide recession in the market during the last five years, buyers were not coming forward to invest in the real estate market and the buyers who booked the flats were not paying the due amount of the installments in time.  As per Clause 32 of the ‘Apartment Buyers Agreement’, in case of any delay on the part of the promoter/developer/company to complete the construction within the period as specified in the agreement, which was directly due to the fault of the promoter/developer/company, the company should pay penalty @ Rs.7/- per sq. ft. per month for delayed period. Moreover, the construction of the tower and completion of the development works within three years was subject to the timely payment of the due installments by the allottees. If the allottees did not pay the due installments in time, the construction of the towers could not be completed within the stipulated period. The Opposite Parties suggested that the complainant should have availed the alternative remedy as provided under ‘clause 46’ of the ‘Apartment Buyers Agreement’ executed by the complainant with the OPs which provides that in case of any dispute arising out of or touching upon or in relation to the terms of the complaint and/or Apartment Buyers Agreement including the interpretation and validity of the terms thereof, the respective rights and obligations of the parties should be settled by conciliation failing which the same should be referred to the sole arbitration of the Managing Director of M/s Samar Estates Pvt. Ltd. or the person/officers appointed by him whose decision should be final and binding on the concerned parties. It is submitted that the complainant has failed to deposit due installments despite repeated reminders. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.

5]       The complainant filed replication to the written reply of the Opposite Parties controverting their stand and reiterating his own.

6]       We have heard the learned counsel for the parties and have gone through the documents on record including the written arguments.

7]       At the very outset, the ld. Counsel for the Opposite Party has argued that this Forum does not have the territorial jurisdiction to entertain and decide this complaint. Therefore, before touching the merits of the case, we would first like to decide the question of territorial jurisdiction of this Forum. 

8]       As per the case set up by the complainant himself and argued by the ld.Counsel for the complainant, it is stated that the OP floated a scheme for the development of the Group Housing Project under the name of ESS VEE Apartments at Sector 20, Panchkula. Admittedly, the complainant booked the apartment in question and as such executed the Apartment Buyer’s Agreement dated 25.03.2011 (Annexure C-1).  The said agreement in respect of the apartment in question was executed between the parties at Panchkula (Ann.C-1).  It is also evident from the Apartment Buyer’s Agreement dated 25.03.2011 (Annexure C-1) that the complainant intended to purchase the Apartment No.E-601, Type Three Bed Rooms with servant room in Tower No.E, Floor No.6th Floor measuring 1725 sq.ft. (approx. super area as defined in Clause No.2 of the agreement) at a cost of Rs.71,50,000/- in ESS VEE Apartments, Sector 20, Panchkula.  It is also clear from the receipts (Annexures C-2 and C-3) that the complainant deposited a sum of Rs.7,15,000/- and Rs.10,72,500/- towards the payment of the apartment in question with the OP at Panchkula.  Annexure C-5 is a copy of the letter written by the OP to the complainant and the close scrutiny of the same reveals that even the Site Office/Administration/Administrative Office  of the OP is also situated at ESS VEE Apartments, Sector 20, Panchkula. As per the title of the complaint, the complainant himself is resident of Sangrur (Punjab). Apart from these, the complainant has not averred or produced any document to prove that any part of cause of action accrued at Chandigarh. 

9]       Faced with this situation, the complainant has argued that the Opposite Party has its Registered Office at Chandigarh, and therefore, a part of cause of action has arisen within the territorial jurisdiction of this Forum.  However, we all are aware that merely because the Opposite Party has its Registered Office within the territorial jurisdiction of a particular Forum would not confer jurisdiction on that Forum to entertain and decide the complaint.  Here we are also strengthened by the judgment of the Hon’ble Supreme Court in Sonic Surgical Vs. National Insurance Co. Ltd.-IV (2009) CPJ 40 (SC) and the operative part of the same reads as under :-

 “4. In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression cause of action means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus no part of the cause of action arose in Chandigarh.

         XXX                         XXX                     XXX

8.  Moreover, even if it had application, in our opinion, that will not help the case of the appellant. Learned Counsel for the appellant submitted that the respondent-Insurance Company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned Counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned Counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the Insurance Company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench-hunting. In our opinion, the expression branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity [vide G.P Singh’s Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79].”

 

The principle of law, laid down, in the aforesaid case, is fully applicable to the instant case.  Hence, from the above scenario, it is clear that no part of cause of action has accrued at Chandigarh so as to attract the territorial jurisdiction of this Forum.

 

10]      In view of the above discussion, we are of the opinion that the present complaint is not maintainable for want of territorial jurisdiction.  Accordingly, without touching the merits of the present complaint, the same is hereby dismissed. Parties are left to bear their own costs. The complainant shall, however, be at liberty, to approach the appropriate Forum, having territorial jurisdiction in the matter.

 

11]      Similarly, the connected complaint case No.302 of 2015 tilted Kiran Rani & Anr. Vs. M/s Samar Estates Pvt. Ltd. & Anr. also stands dismissed being not maintainable for want of territorial jurisdiction.   Parties are left to bear their own costs. The complainant(s) shall, however, be at liberty, to approach the appropriate Forum/Court of Law, having territorial jurisdiction in the matter.

 

12]      A copy of this order be placed in connected consumer Complaint No.302 of 2015 tilted Kiran Rani & Anr. Vs. M/s Samar Estates Pvt. Ltd. & Anr., which shall be deemed to form a part of that order.

         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

30^th March, 2016                                    

                                                Sd/-

(RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 

 

Sd/-

(PRITI MALHOTRA)

MEMBER

   

                                                                                                                    

 

 

                                                     

 

DISTRICT FORUM – II

CONSUMER COMPLAINT NO.299 OF 2015

PRESENT:   None   Dated the day of 30th March, 2016

O R D E R                       Vide our detailed order of even date, recorded separately, the present complaint as well as the connected complaint case No.302 of 2015– Kiran Rani & Anr. Vs. M/s Samar Estates Pvt. Ltd. & Anr., have been dismissed.           After compliance, file be consigned to record room.

 

 

(Priti Malhotra)	(Rajan Dewan)	(Jaswinder Singh Sidhu)
Member	President	Member