Chandigarh

DF-II

CC/135/2014

Darshna Devi - Complainant(s)

Versus

Samar Estates Pvt Ltd - Opp.Party(s)

Mohd Yousaf & Parvej Akhtar

24 Feb 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

 

 

Consumer Complaint No.	:	135/2014
Date of Institution	:	19.03.2014
Date of Decision	:	24.02.2016

 

                  

                                                         

 

Smt.Darshna Devi w/o Sh.Rakesh Kumar, Kahangarh Road, Patran, District Patiala.

                                      ...  Complainant.

Versus

Samar Estates Pvt. Ltd., # 254, NAC, Manimajra, Chandigarh through its authorized signatory Sh.Vinod Bagai son of Shri Nand Lal.

…. Opposite Party

 

BEFORE:  SHRI RAJAN DEWAN, PRESIDENT

SHRI JASWINDER SINGH SIDHU, MEMBER

                   SHRI PRITI MALHOTRA, MEMBER

 

Argued by:  Mohd. Yousaf, Counsel for the complainant.

                        Sh.Munish Kapila, Counsel for the OP.

                                               

PER RAJAN DEWAN, PRESIDENT

1.           This case has been remanded back by the Hon’ble State Consumer Disputes Redressal Commission vide its order dated 02.03.2015 and the operative part of the said order reads as under :-

“15.               For the reasons recorded above, the appeal is accepted. The order impugned is set aside. The case is remanded back, to the District Forum, with a direction to afford one reasonable opportunity, to the Opposite Party/ appellant, to submit its written version, and lead evidence, by way of affidavit(s), thereafter,  permit  the   complainant/respondent, if need be, to lead evidence, in rebuttal, by way of affidavit(s), and then decide the same (case), afresh, on merits, in accordance with the provisions of the Act. The appellant/Opposite Party, is, however, burdened with costs of Rs.10,000/-. Payment of costs, by the appellant/Opposite Party, to the respondent/ complainant, shall be a condition precedent. In other words, the costs shall be paid, before the written version and evidence, are filed, by the appellant/Opposite Party.”

2.           In brief, the case of the complainant is that she purchased an Apartment No.E-802, Type three Bed Room with servant quarter in Tower-E, Floor 8th measuring 1725 sq. ft. for a total consideration of Rs.67.70 lacs  in the Group Housing Project floated by the Opposite Party under the name and style “ESS VEE Apartments”, to be constructed and developed at Sector 20, Panchkula. It has been averred that the Opposite Party was to complete the project and hand over the physical possession of the flat to the allottees within 36 months i.e. up to August 2014. An Apartment Buyer’s Agreement was also executed between the parties on 25.08.2011 in respect of the aforesaid Apartment (Annexure C-1). As against the total sale consideration, the Complainant had deposited an amount of Rs.16,92,500/- vide receipts Annexure C-3 and C-4 with the Opposite Party as per the payment schedule which include the booking amount 10% and 15% within 30 days of the booking. According to the complainant, after receiving the huge amount from her and other allottees, the Opposite Party did not start the construction of Tower-E at the spot, till date. The Complainant even approached the Opposite Party a number of times to start the project, but every time, she was put off on one pretext or the other. Rather, instead of starting the construction and handing over the possession of the flat, the Opposite Party vide letter (Annexure C-5) threatened the complainant either to deposit the amount of the installment otherwise it would cancel the allotment of the flat in question.  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.
3.           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.16,92,500/- against the total booking price of Rs.67.70 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 Distt. Panchkula. It has further been stated that  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 01.04.2011 on construction linked installments payment plan, already booked by the Realpro Assests Pvt. Ltd. with the OP.  It is submitted that as per terms & conditions of the application form for allotment, the complainant was required to make the payment as per payment schedule. It is submitted that roof slab upto 10^th floor has been casted upto 12.01.2015 and brick work of the walls has also been completed. It is submitted that 80% of the agreed price has become due from the complainant till 12.01.2015 as no installments have been deposited by the complainant after 10.07.2011 and a sum of Rs.47,38,746/- as on 01.04.2015 was due against the complainant so the complainant has failed to fulfill the necessary 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. It is submitted that 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. It is submitted that 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. It is submitted that the construction of the tower and completion of the development works within three years was subject to the payment of the due installments by the allottees. If the allottees did not pay the due installment in time, the construction of the towers could not be completed within the stipulated period. It is submitted 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 OP which provided 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 and 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.

4.           The complainant filed rejoinder to the written reply of the Opposite Parties controverting their stand and reiterating her own.
5.           We have heard the learned counsel for the parties and have gone through the documents on record including the written arguments.
6.           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. 
7.           As per the case set up by the complainant herself, the OP floated a scheme for the development of the Group Housing Project under the name of ESS VEE Apartments at Sector 20, Panchkula. The complainant booked the apartment in question vide her application  dated 01.04.2011 (Annexure OP-1) at Panchkula.   The Apartment Buyer’s Agreement dated 25.08.2011 (Annexure C-1) in respect of the apartment in question was also executed between the parties at Panchkula.  It is also evident from the Apartment Buyer’s Agreement dated 25.08.2011 (Annexure C-1) that the complainant intended to purchase the Apartment No.E-802, Type Three Bed Room with servant room in Tower No.E, Floor No.8^th Floor measuring 1725 sq.ft. (approx. super area as defined in Clause No.2 of the agreement) at a cost of Rs.67.70 lacs in ESS VEE Apartments, Sector 20, Panchkula.  It is also clear from the receipts (Annexures C-3 and C-4) that the complainant deposited a sum of Rs.6,77,000/- and Rs.10,15,500/- towards the advance 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 herself is resident of Patiala. Apart from these, the complainant has not averred or produced any document to prove that any part of cause of action accrued at Chandigarh. 
8.           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 are afraid 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.

9.           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. 
10.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

24.02.2016

Sd/-

(RAJAN DEWAN)

PRESIDENT

 

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 

Sd/-

(PRITI MALHOTRA)

MEMBER