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RAJASTHAN STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Nisha Gupta, President
APARNA CHAUDHARY - Appellant
Versus
NARAYAN BUILDERS AND DEVELOPERS - Respondent
Complaint Case Nos. 88 & 93 of 2016
Decided on : 17-10-2017
Pawan Gupta, Advocate, for the complainants; Pancham Surana, Advocate, for the Respondent No. 1; Nirmal Jain, Advocate, for the Respondent No. 2
The central legal point established in the judgment is the applicability of the Consumer Protection Act in cases of delay in possession of property, the definition of 'consumer', and the obligations of the builder and the bank in real estate disputes.
Headnote:
Consumer Dispute - Real Estate - Consumer Protection Act, 1986 - Section 2(1)(d), Section 3 - Section 2(1)(r), Section 21 - Section 2(1)(o), Section 2(1)(g), Section 2(1)(d), Section 2(1)(r), Section 21, Section 2(1)(o), Section 2(1)(g) - The judgment discusses the pecuniary jurisdiction of the Commission, the definition of 'consumer' and 'commercial purpose', and the applicability of the Consumer Protection Act in cases of delay in possession of property. The court also addresses the issue of unregistered agreements and deficiency in services by the builder. The judgment relies on various precedents to establish the consumer's rights and the obligations of the builder and the bank.
Fact of the Case:
The complainant booked a residential flat and paid a substantial amount, but the possession was not handed over within the stipulated time. The complaint sought possession of the property, compensation, and cost of proceedings. The builder and the bank contested the complaint, claiming that the payment terms were not met and the flats were booked for commercial purposes.
Finding of the Court:
The court found that the complaint fell within the pecuniary jurisdiction of the Commission and that the flats were booked for residential purposes. It held that the complainant was a 'consumer' under the Consumer Protection Act and that the delay in possession amounted to deficiency in service. The court also dismissed the objections regarding unregistered agreements and pending criminal proceedings, and found the complainant's claims to be bona fide.
Issues: The issues revolved around the pecuniary jurisdiction of the Commission, the consumer status of the complainant, the purpose of booking the flats, and the alleged deficiencies in services by the builder and the bank.
Ratio Decidendi: The court established that the complainant was a 'consumer' and that the delay in possession constituted deficiency in service. It also emphasized the applicability of the Consumer Protection Act despite pending criminal proceedings and the importance of clean hands in filing a complaint. The court relied on precedents to support its findings on the purpose of booking and the obligations of the builder and the bank.
Final Decision: The complaint was allowed against the builder, and it was ordered to pay the outstanding amount to the bank and compensate the complainant for mental agony and cost of proceedings. The bank's contention was upheld, and the complaint was dismissed against the bank.
ORDER
Nisha Gupta President. - Both these complaints contain similar facts and similar issues hence, are decided by this common judgment. Facts are taken from Complaint Case No. 88/2016.
2. The complaint has been filed with the contention that complainant booked a residential flat with non-applicant no. 1 on 4.5.2013 after paying the booking amount of Rs. 1,11,000/-. The total sale price of the flat was Rs. 43,89,022/-. Till December 2013 she paid Rs. 8,24,720/- which was 20% of the complete sale price. On 18.2.2014 Flat Buyer Agreement was executed between the parties. The complainant took loan from non-applicant No. 2 and Tripartite Agreement was executed between the complainant, builder and the bank. Within six months she paid Rs. 41,68,373/-. On 28.8.2014 letter for possession of the flat was sent without obtaining Completion Certificate from Jaipur Development Authority, Airport Authority and Fire Authorities. Extra money for car parking and club membership was also demanded. Bank has also gave her notice for the payment otherwise it was threatened that her Cibil would be effected. Flat is not ready for possession and within the stipulated time of 24 months the construction has not been completed. Hence, the complaint has been filed for having possession of the property as well as compensation, cost of proceedings etc. It has also been demanded that bank should not initiate any proceedings under cibil.
3. In reply to the complaint the contention of the builder is that the complaint lacks pecuniary jurisdiction of the Commission. The payment are not being made on time. They are ready to give possession. The payment could be made only to the bank whereas the complainant is demanding money. Hence, builder cannot be said to be deficient.
4. The contention of the bank is that as per Tripartite Agreement the payment should have been made to the bank and after deduction of due amount, interest and cost balance amount could be paid to the complainant. Bank is not deficient.
5. Parties entered into evidence. Heard the counsel for the parties and perused the record of the case.
6. There is no dispute about the fact that residential flat was booked by the complainant and requisite amount was paid. Flat Buyer Agreement Ex. 1 is placed on record and vide Anx. 2 loan was sanctioned by the non-applicant No. 2. Customer Ledger Ex. 4 also show that Rs. 41,68,373/- were paid. Anx. 5 letter was issued for having possession of the property. Ex. 6 shows that completion certificate has not been issued by the Jaipur Development Authority to the builder and Ex. 8 shows that fire no objection certificate was also not obtained. Ex. 7 shows that no objection certificate has not been issued by Airport Authority of India. This clearly shows that inspite of the agreement the possession of the property has not been handed over to the complainant on time. The contention of the non-applicant is that requisite amount has not been paid has no foundation as customer ledger Ex. 4 clearly shows that more than Rs. 41 lakhs are being paid to the builder.
7. The first contention of the non-applicant builder is that the complaint does not fall within the pecuniary jurisdiction of the Commission as relief claimed is only for Rs. 15,55,000/- but this contention is completely hollow on the face of it as the complainant has asked for possession of the property sale price of which is admittedly more than Rs. 40 lakhs and further more compensation,cost of proceedings have also been claimed and the complaint falls within the pecuniary jurisdiction of this Commission.
8. The non-applicant has relied upon the judgment passed by the West Bengal State Commission in FA/95/2014 Flat Owners Association of Ava Apartment v. Birendra kumar Saha where on the facts of the case complaint case exceed the pecuniary jurisdiction of the District Forum which is not the case here. Hence, the objection as regard to pecuniary jurisdiction has no legs.
9. The other contention of the non-appli
