Ashwani Anand vs Gee City Builders Pvt. Ltd.

PETITIONER /Complainant filed three complaints bearing Complaints No. 515, 516 and 517 of 2009 before District Consumer Disputes Redressal Forum -I UT Chandigarh (for short, ''District Forum'') against Respondent/Opposite Party.

DISTRICT Forum vide common order dated 20.10.2009, allowed all the complaints and passed following directions; "The OP is directed to complete the construction in all respects and deliver possession of the premises to the complainants within 6 months from today. If the construction is not completed or the possession is not delivered, the OP would refund the amount of all the three flats of Rs. 9,07,250/ - + Rs. 9,07,250/ - + Rs. 9,07,250/ - total Rs. 27,21,750/ - to the complainants alongwith interest at the rate of 9% per annum since 5.11.2008 till the last day of the month in which the amount is paid to the complainants. The OP shall also pay a sum of Rs. 5,000/ - as litigation cost within 30 days from the date of receipt of copy of this order".

Not satisfied with the order of the District Forum, Petitioner filed Appeals No. 649, 650 and 651 of 2009, before State Consumer Disputes Redressal Commission, UT Chandigarh (for short, ''State Commission''). Since, common question of law and facts were involved, State Commission disposed of all the appeals vide common impugned order dated 16.9.2010, upholding the order of the District Forum.

PETITIONER by way of present revisions have challenged the impugned order.

SINCE , facts are similar in these cases and common question of law is involved, these petitions are being disposed of by this common order. Facts of Complaint Case (No.515 of 2009, Ashwani Anand v. Gee City Builders Private Ltd.) are taken as the lead case.

PETITIONER in response to a scheme floated by respondent in the year 2006 for allotment of flats in Rishi Apartments, Baddi, Distt. Solan (H.P.), booked a flat on depositing an amount of Rs. 1.00 lac, whereupon he was allotted Flat No. C -6 -301. Agreement to Sell in respect of the said flat was also executed between the parties. On the assurance of respondent that possession of flat would be delivered immediately on payment of 95% of the price, petitioner deposited Rs. 9,07,250/ - being 95% payment of the flat in question. Thereafter, he requested respondent to deliver the possession, but when no satisfactory reply was received he served a legal notice dated 25.8.2008. It was alleged that as per information obtained by the petitioner under RTI Act from H.P. Housing & Urban Dev. Authority, the license to start construction was granted on 26.8.2006 and Agreement to Sell was executed on 4.11.2006, which was a later event. So, according to Condition No. 11 of the Agreement, respondent was liable to deliver the physical possession on 4.11.2008, but it failed to deliver the same which amounted to deficiency in service & unfair trade practice.

ON the other hand, respondent in its reply inter -alia, stated that petitioner had failed to adhere to the payment schedule as per the allotment letter as well as the Agreement to Sell. It was pleaded that respondent never assured the petitioner that on making down payment of 95% of the price of the flat, possession would be given immediately. Petitioner himself changed his option from installment to down payment and claimed discount which was already given as per Clause 8(b) of Agreement to Sell. As per Clause 11 of the Agreement, possession of the flat/apartment was to be delivered to the petitioner within 24 months from the date of commencement of said units, if the completion certificate by the competent authority, release of sewerage connection, water connection and electric connection by the concerned authorities were issued without any delay. However, completion certificate as well as the electric connection had not been supplied to the respondent by the concerned authorities and hence the possession could not be delivered to the petitioner. A letter dated 16.4.2009 was also issued to the petitioner that construction of the flats was complete but electric connection from the Board was awaited and possession would be delivered to him, as soon as the electric connection was released. It was further stated that consent of the Pollution Board was also awaited for the sewerage treatment plant, which had already been established. The complaint was stated to be premature, as completion/occupation certificate and electric connection had not been supplied by the competent authorities and even if the date of environment clearance i.e. 4.1.2008 was taken as the date of commencement of work, two years were yet to complete. It was pleaded that when the petitioner failed to make the payment as per the schedule inspite of issuing reminders, he ultimately sought permission to mortgage the flat in order to raise loan for payment to respondent, which was ultimately granted to him and a discount of Rs. 45,000/ - per flat was also given to him. As per revised payment schedule, petitioner was required to pay Rs. 5.50 lacs as registration amount and Rs. 3,57,250/ - as balance amount upto 95%, within 15 days of revised schedule. The remaining payment of 5% to the tune of Rs. 47,750/ -, was to be paid at the time of possession. Since, payment was made under the revised schedule on 10.7.2007, 14.7.2007 and lastly on 13.8.2007, so the date of the Agreement to Sell was to be considered w.e.f. 13.8.2007 as per the payment under the revised schedule and period of 24 months came to an end on 12.8.2009. We have heard the learned counsel for the parties and gone through the record carefully.

THE foremost argument raised on behalf of the petitioner is, that fora below instead of passing the order regarding delivery of the possession within six months should have only allowed the complaints for refund of the entire cost price of flats deposited with respondent, together with interest as prayed for in the complaints.

IT is further submitted that respondent had cheated the petitioner by mentioning in the first clause of the Agreement to Sell dated 4.11.2006, that all the requisite permissions required for raising the construction of flats were already with respondent but this fact was proved to be wrong as the final permission for raising the construction was obtained only on 4.1.2008. Lastly, it is submitted that agreement dated 4.11.2006, is a void contract and not enforceable inasmuch as no clause regarding refund of amount on account of any breach of condition on the part of respondent has been incorporated therein. On the other hand, learned counsel for respondent has submitted that construction of the flats was completed within six months from the date of passing the District Forum''s order. Thereafter, possession was duly offered to the petitioner.

STATE Commission while disposing the appeals, in its impugned order observed; "7. We have given our thoughtful consideration to the above submissions put forth on behalf of the parties and find that admittedly the possession of flats was offered to the complainant within six months of the passing of the impugned order dated 20.10.2009 of the District Forum but the complainant is adamant only for the refund of the cost price of three flats together with interest as stated above. A perusal of the agreement dated 4.11.2006 entered between the parties goes a long way to show that there was no such clause regarding the refund of the deposited amount. The agreement was duly signed by the parties in the year 2006. The terms and conditions incorporated in the agreement had been no where challenged by the complainant However, now the contention of learned counsel for complainant is that non -inclusion of the term and condition regarding the refund of the amount makes the agreement void and unenforceable. For that, a great deal of evidence is required to be led by the parties for coming to the conclusion that the agreement entered into between the parties is void and this fact, we feel, can be gone into by the civil court.

Further, here in the instant case the complainant is stated to have been cheated as in the opening para of the agreement it was stated that the requisite permissions had already been obtained regarding raising of the construction. However, the material placed on the file indicates that the permission for raising the construction was finally obtained on 4.1.2008. This question of cheating and playing fraud by OP raised before us during the course of arguments should be left to be decided by the civil court as held in many pronouncements made by the Hon''ble National Commission.

Now coming to the judgment rendered by this Commission in Shamsher Singh Sidhu v. Parsvnath Developers Limited etc. in Complaint case No. 4 of 2009 decided on 19.8.2010, relied upon by the complainant. We have gone through this judgment also and find that there was a specific clause in the Agreement vide which an allottee/buyer was entitled to get refund of the amount in case any breach of condition was shown on the part of OP/developer/builder. Here in the instant case, as discussed above, the position is quite contrary to the facts of the above cited case. In this view of the matter, no benefit can be derived by the learned counsel for complainant from the observations made by us in the above said ruling.

In view of the foregoing discussion, we find no illegality or impropriety in the impugned order passed by the District Consumer Forum. However, we before parting with this order observe that complainant would be at liberty to knock at the door of appropriate civil court for seeking redressal of his grievance regarding the refund of the amounts together with interest deposited by him with OP, in accordance with law."

AT the outset, we may point out that till date, petitioner has not filed the certified copy of the impugned order in these cases. Therefore, present revision petitions are liable to be dismissed on this short ground alone. It may be pertinent to mention here that petitioner at the time of filing of revision petitions had filed application seeking exemption from filing the certified copy. The grounds on which exemption was sought are reproduced as under; "3. That the Petitioner has received the copy of order dated 16.09.2010 passed by the State Consumer Disputes Redressal Commission, Punjab at Chandigarh on _______ and being aggrieved from the said order has filed this revision petition.

That due to paucity of time and some other unavoidable circumstances petitioner could not obtain the certified copy of order dated 16.09.2010.

That the Petitioner undertake to file the certified copy of order dated 16.09.2010 within four weeks or as directed by this Hon''ble Commission."

Admittedly, petitioner had received the certified copy of the impugned order but has not mentioned on which date it was received. Further, at the time of filing of the petitions it was specifically stated that certified copy would be filed within four weeks. As per petitioner''s own case, he had received the certified copy of the impugned order before filing of the revision petitions. The revision petitions were filed on 22.12.2010, but till date petitioner despite giving an undertaking to file certified copy of the impugned order, has not filed the same. Therefore, present revision petitions are liable to be dismissed on this short ground alone itself, that these petitions are not accompanied by the certified copy of the impugned order.

NOW , coming to the merits of the case it is an admitted fact that agreement between the parties was executed on 4th day of November, 2006. Clause No. 11 of this Agreement which is relevant for deciding the controversy between the parties states as under; "11. That in case of issuance of the completion certificate by Competent Authority, release of sewerage connection, water connection and electric connection by the concerned authorities are without delay the possession of the said apartment will be delivered by the seller to the purchaser within a period of 24 (Twenty Four) months from the date of commencement of construction of the said unit or from the date of signing this agreement, whichever is later, subject to force majeure. The Seller shall not incur any liability if it is unable to deliver the possession of the said premises by the time aforementioned, if the completion of the building(s) is delayed by reason of non -availability of steel and/or cement or other materials or water supply or electric power or slow down strike or due to a dispute with the construction agency employed by the Seller, civil commotion or by reason of war, or enemy action, or earthquake or any act of God, delay in issue of completion certificate by Competent Authority, delay in release of sewerage and water connection by the concerned authority or if non -delivery of possession is as a result of any competent authority or for any other reason beyond the control of the Seller and in any of the aforesaid events the Seller shall be entitled to a reasonable extension of time for delivery of possession of the said premises."

A bare reading of this clause would show that possession had to be delivered within 24 months from the date of commencement of the construction or from the date of signing of the agreement, whichever is later. Petitioner as per its own case, had served a legal notice dated 25.8.2008 to the respondent demanding the possession. Two years period as per Clause No. 11 of the agreement had not expired by that time. Thus, demand raised by the petitioner through legal notice dated 25.8.2008 was certainly pre -mature. Thus, the consumer complaints filed by the petitioner are pre -mature.

FURTHER , petitioner never challenged the terms and conditions incorporated in the agreement. The District Forum had ordered for delivery of possession of the flats, failing which refund of the amount, which in the present case is fully justified. The State Commission also confirmed that decision.

IT is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. Under this section, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. United India Insurance Company, : 2011 (3) Scale 654 has observed; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora."

WE do not find any jurisdictional error or infirmity or illegality, in the impugned order. Accordingly, present revisions stand dismissed

NO order as to costs.