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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Sudip Ahluwalia, Presiding Member and AVM J. Rajendra, AVSM VSM (Retd.), Member
Rajiv Kumar Jain – Appellant
versus
Shyam Kanhiya Jaiswal and Ors. – Respondents
First Appeal No.600 of 2018
(Against the Order dated 12/03/2018 in Complaint No. 183/2016 of the State Commission West Bengal)
Decided on 17.8.2023
Consumer Protection Act, 1986 – Section 19[Consumer Protection Act, 2019 – Section 51] – Real estate – Flat Buyers Agreement – Deficiency in services and unfair trade practices on part of Builder – Refund alongwith interest ordered by State Commission – No grounds to interfere with balanced and reasonable order passed by State Commission – Appeal dismissed and additional amount of Rs. 20,000/- awarded to Respondents/Complainants towards litigation expenses.
Held: Another contention raised on behalf of the Appellant is that the Ld. State Commission had no pecuniary jurisdiction to entertain the complaint, since the combined value of the various reliefs sought for by the Complainants exceeded Rs. 1.00 crore. This is, however, not the actual case. This Commission has perused the prayers of the Complainants in Para 26 of their original complaint, a copy of which is on record at pages 9-18 of the Paper Book. The Complainants had prayed for refund the amount of Rs. 41.00 lakhs delivered to the Appellant/Opposite party, interest @ 18% p.a. thereupon from 25.1.2016, and Rs. 20.00 lakhs as damages for the financial and business loss, mental tension and agony of the Complainants and their family members. Considering that the complaint had been filed on 28.4.2016, the total claim would come to less than Rs. 80.00 lakhs including the principal amount, amount of compensation sought (Rs. 20.00 lakhs) and interest @ 18% p.a. on the principal amount till the date of filing of the complaint.
For the aforesaid reasons, this Commission finds no grounds to interfere with the balanced and reasonable order passed by the Ld. State Commission. The Appeal is, therefore, dismissed and an additional amount of Rs. 20,000/- is awarded to the Respondents/Complainants towards litigation expenses for the same. (Paras 14 and 15)
Result: Appeal dismissed.
ORDER
Sudip Ahluwalia, Presiding Member—This Appeal has been filed by the Appellant/Opposite Party No.1 against the Respondents/Complainants and Opposite Parties No. 2 and 3 challenging the impugned Order dated 12.03.2018 passed by the State Consumer Disputes Redressal Commission, Kolkata, West Bengal, in Complaint Case bearing No. CC/ 183/ 2016. Vide such Order, the State Commission had disposed off the Complaint against Opposite Party No. 1 on contest and Ex-parte against Opposite Parties No. 2 and 3.
2. The brief facts of the case are that the Opposite Party No.2 is the land owner of Premises No. 41C, Bechu Chatterjee Street under Amherst Street Police Station, Kolkata – 700009, whereas the Opposite Party No.3 is her husband and her constituted agent and attorney with regard to the aforesaid property. The Opposite Party No.1 is a developer who entered into a Development Agreement with regard to construction and development of a new building Project on the aforesaid premises. The Complainants had entered into an Agreement for Sale dated 25.01.2014 with the Opposite Party No.1 – Developer to purchase one Flat being the Flat D situated on the second floor (north-eastern side) of the building measuring 1200 sq. ft., and a covered parking area at the aforesaid premises, but for a typographical error, open car parking space had been mentioned in place of covered parking area. The total consideration of the Flat was Rs.62,40,000/- out of which Rs.31,00,000/- had been contended to be paid by the Complainants. The Complainants also served a Legal Notice dated 18.09.2014 on the Opposite Party No.1 for specific performance of the Agreement for Sale dated 25.01.2014. Thereafter, on 26.11.2014, the Complainant No.1 visited the premises and found that the Opposite Party No.1 was giving inspection to some strangers for an unlawful transfer of the Complainants’ Flat. In order to prevent the Opposite Party No.1 from creating third party interests in the Flat as well as the covered parking space, the Complainants filed a Suit bearing TS No. 35504 of 2014 against the Opposite Parties before Ld. 10th judge of City Civil Court at Calcutta wherein the Complainants also moved an Application under Order 39 Rules 1&2 r/w Section 151 of the Civil Procedure Code wherein the Ld. 10th Judge had directed the Complainants to pay a sum of Rs.10 Lacs to the Opposite Parties which was complied with by the Complainants. The Ld. Judge had allowed the Application for injunction vide Order dated 08.10.2015 restraining the Opposite Parties from creating any third party interests in the suit Flat including the covered car parking space till the disposal of the suit. The said suit was still pending till the date of filing of the Complaint. Therefore, the Complainants had contended to have paid a total sum of Rs.41,00,000/- to the Opposite Parties.
3. Thereafter, the Complainants issued a Notice to the Opposite Party for filing of the Complaint before the Ld. State Commission in case the Opposite Party failed to refund the sum paid. However, the Opposite Party failed to comply with the aforesaid notice. Therefore, being aggrieved by the acts of the Opposite Parties in failing to comply their part of obligations resulting deficiency in services and unfair trade practices, the Complainants filed a Complaint before the Ld. State Commission seeking refund of Rs.41,00,000/- along with interest @ 18%p.a. from 25.01.2016 till realization, compensation of Rs. 20,00,000/-, pendente lite interest @ 18% p.a. during the pendency of the case and interest @ 18%p.a. on judgement/ order till realization.
4. The Opposite Party No.1 appeared before the Ld. State Commission and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended that the Complaint is based on Agreement dated 25.01.2014 which is neither sufficiently stamped nor is registered and hence, is not enforceable and has no evidentiary value. It was further
A balanced and reasonable order passed by State Commission is not amenable to interference in revision.
Flat Buyers Agreement—No unwarranted deduction in refund amount is permissible.
Delay in allotment of flat – Challenge to bar of pecuniary jurisdiction has to be raised at the first instance & cannot be permitted at the appellate stage.
Cancellation of allotment of plot – No deficiency in service as no claim for allotment of alternative plot made by Complainant.
Non-compliance with contractual obligations regarding refunds and unjustified deductions constitutes deficiency in service.
One-sided contractual terms - Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms.
(1) Delay – It is undisputed that there has been delay in the handing over possession of the Flat as per the Agreement and the OP had cancelled the allotment to the Complainant.(2) Question of Law – ....
Housewife - Complainant is a housewife and there is nothing on record to show that she is engaged in any visible commercial activity.
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