Nisha Gupta, President:
1. 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.
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e 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 in spite 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 lakh 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 lakh 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-applicant is that flats were booked for commercial purpose hence, complaint is not maintainable and complainant is not a ‘consumer’.
10. There is no dispute about the fact that both the complainants have booked two different residential flats but in reply to the complaint there is no averment of the non-applicant that the flats were booked for commercial purpose where there is a specific pleading of the complainant that they need the flat for residential purpose.
11. The non-applicant has relied upon the judgments passed by the National Commission in Consumer Complaint No. 5 of 2014, Sunil Gupta v. Today Homes & Infrastructure, II (2014) CPJ 1 (NC)=Consumer Complaint No. 111 of 2012, Chilukuri Adarsh v. Ess Ess Vee Construction, where two showrooms were booked and it was obvious that it relates to commercial purpose but in the present case the residential flats have been booked. In another Consumer Case No. 871 of 2015, Manu Talwar v. BPTP Ltd., IV (2015) CPJ 396 (NC), the partners of business firm have booked two corporate suites for business use which is not the case here.
12. Further reliance has been placed on the judgment passed by Chandigarh State Commission in Consumer Complaint No. 177/2014, Lt. Col. Karamjit Singh v. M/s. Emaar MGF Land Pvt. Ltd., where husband and wife, senior citizens have purchased flat after investing their life savings and the State Commission was of the opinion that in these circumstances the flats were purchased for commercial purpose. Further reliance has been placed on the judgment passed by the National Commission in First Appeal No. 1219/2014, Indrajit Dutta v. Samriddhi Developers Pvt. Ltd., II (2015) CPJ 342 (NC), where after relying on the principles laid down in Sunil Gupta (supra) the complaint was rejected but here in the present case there is no averment of the non-applicant in the written reply that flats were booked for commercial purpose. Admittedly the flats are for residential purpose. The complainants are not dealing in real property business. The contention of the Counsel for the complainant is that flats were booked for the use of family including son and reliance has rightly been placed on the judgment passed by this Commission in Complaint Case No. 11/2012, Sanjay Jhanwar v. Vatika Ltd., where it has been held as under:
“The argument of the learned Counsel for the non-petitioner that booking of two flats by the complainant at the same time in the same project shows that the complainant intended to use the flats for commercial purpose and for investment purpose, does not sound good and reasonable for the reasons that mere booking of two flats does not reflect that the purchase was intended for commercial purpose only. A commercial purpose of the premises can be inferred only when some commercial activity is in fact carrid out by the complainant in the aforesaid flats. Moreover, there is no legal bar that two or more residential flats cannot be purchased by a person. In fact, number of flats that can be bought or should be bought depends on the need of an individual. But in the present matter, even the possession of the flat has not been handed over to the complainant and therefore, it cannot be said that two flats intended to be purchased by the complainant were to be used commercial purpose.”
13. Here in the present case only a single flat has been booked by the complainant and that too for residential purpose and complainant has rightly relied upon the judgment passed by the National Commission in Consumer Complaint No. 1479/2015, Developers Township Property Owner Welfare Society v. Jaiprakash Associate, where the complainant was held to be ‘consumer’ as there was no iota of evidence to show that the complainants have booked any other flat which is also the situation here.
14. Further reliance has rightly been placed on the judgment passed by the National Commission in First Appeal No. 1287/2014, Rajesh Malhotra v. Acron Developers, II (2016) CPJ 125 (NC), where in written statement there was not even a whisper that the transaction is for commercial purpose and the Hon’ble National Commission was of the opinion that mere letting our of a residential house would not per se amount to commercial purpose as stipulated in Section 2(1)(d) of the C.P. Act.
15. Further reliance has been placed on II (2016) CPJ 316 (NC), DLF Universal Ltd. v. Nirmala Devi, where from the facts of the case it was clear that the complainant is not engaged in the business of purchasing or selling houses or plots on a regular basis and hence booking of plot was not held for a commercial purpose which is also the case here.
Hence, in view of the above the contention of the non-applicant is not sustainable.
16. The other contention of the non-applicant is that complainant is not a ‘consumer’ but nothing has been shows that how the complainant is not a consumer when she has booked the flat and money has been paid and reliance could be placed on Sanjay Jhanwar (supra) where it has been held as under:
“The other objection raised by the non-petitioner is that the complainant is not a “consumer” as the non-petitioner is not providing any service to the complainant after taking any consideration from him but the complainant intended to purchase immovable property from the non-petitioner and this matter pertains to civil dispute, so this matter is not a “consumer dispute”. In this regard, we are in agreement with the arguments of the complainant that where the developer carries on the activity of construction on land and allots the residential apartments and flats or plots after inviting applications from the public, then his act amounts to service and when the possession is not handed over to the allottee within the stipulated period, then the delay amounts to deficiency or denial of service and such dispute is not a civil dispute. The Hon’ble Supreme Court in Lucknow Development Authority v. M.K. Gupta,Manu/SC/0178/ 1814, has held that when possession of the property is not delivered within the stipulated period, the delay so caused is denial of service. Such disputes or claims are not in respect of immovable property but amounts to deficiency in rendering service. The Hon’ble National Commission also in I (2008) CPJ 431 (NC), Gaziabad Development Authority v.R.B. Sharma, has followed the aforesaid judgment of the Hon’ble Apex Court and held that the disputes pertaining to the allotment of flat by developers to an allottee is not a civil dispute and Consumer Courts can adjudicate such disputes. Therefore, in the light of the aforesaid judgments, it is also proved that the complainant is a “consumer “ and the present dispute is a “consumer dispute “which can be adjudicated by this Commission.”
Hence, in view of the above the contention in this regard is not fruitful.
17. The other contention of the non-applicant is that criminal proceedings are pending between the parties hence, consumer complaint is not maintainable. This argument is not sustainable at all as in view of Section 3 of the C.P. Act the provisions of this Act are in addition to the provisions of any other law for the time being in force. Hence, if any criminal proceedings are pending still consumer complaint is maintainable.
18. The other contention of the non-applicant is that complaint has not been filed with clean hands. In the complaint relief for the possession of the flat is asked whereas by communication she is asking for the refund of money and same argument has also been addressed here by her. Be that may be the case, when flats are not ready for possession the complainant is free to ask refund of the money in alternate and it cannot be said that she has filed a false complaint. Reliance has been placed by the non-applicant on the judgment passed by this Commission in Complaint Case No. 26/2015, Gajendra Jain v. Narayan Builders, where facts as regard to allotment of additional area and delay payment were not disclosed which is not the case here.
19. The non-applicant could not show that how the complainant has not come with clean hands. Much reliance has been placed by the non-applicant on Anx. R 12 reply given by the complainant but the reading of the reply could not disclose any facts which could build the contention of the non-applicant that complaint has not been filed with clean hands.
20. The contention of the non-applicant is that amount has been asked with 24% interest but asking a higher interest rate cannot be said to be non-bona fide. His further contention is that rent has also been asked but no documentary evidence has been submitted. Asking a thing is a different situation if the fact has not been proved it could be disallowed but mere asking a thing cannot be termed as mala fides on the part of the complainant.
21. The complainant has relied upon the judgment passed by this Commission in First Appeal No. 1260/2016, Narayan Builders v. Smt. Kiran Jain, where compensation was allowed to the consumer and order was passed for refund of the money along with interest.
22. The other contention of the non-applicant No. 1 is that agreement is unregistered and deficient in stamp could not be looked into. Reliance is placed on the judgment passed by the Hon’ble High Court in S.B. Civil Misc. Application (Arbitration) No. 54/2015, Ansal Properties v. Smt. Jhamru & Ors., but in above writ the dispute was in relation to MOU dated 31.8.2004 which is not in issue here and more particularly plot buyers agreement dated 18.2.2014 is an admitted document between the parties hence, above contention is useless.
23. Here in the present case the facts of the case clearly shows that in spite of the substantial amount has been paid as sale price in 2014. The possession of the property has not been handed over to the complainant. The documents clearly shows that still the flats are not ready for possession and deficiency of the non-applicant No. 1 is writ large clear on the face of the record.
24. The complainant has rightly pointed out that vide Anx. 9 she was illegally asked to pay the parking charges of Rs. 2,25,000 whereas as per the settled law the parking place could not be sold out. The complainant has also rightly pointed out that vide Anx. 9 membership fees for Rs. 67,416 was asked to pay where earlier it was agreed to charge no money for club membership andvide Anx. 11 it is the admission of the non-applicant that club membership is waived of. These actions of the non-applicant also shows the illegal practice committed by the builder. Non-applicant has submitted Anx. R 1 and estimate cost sheet annexed to R 1 also shows zero amount for club membership whereas vide Anx. 9 excess amount of Rs. 67,416 is being asked which shows deficiency on the part of non-applicant No. 1.
25. The non-applicant No. 1 could not show any reason that why the construction has not been completed and within the stipulated time the possession of the property has not been handed over to the complainant. Hence, deficiency on the part of the non-applicant No. 1 is established and complaint is liable to be allowed against non-applicant No. 1.
26. As regards to non-applicant No. 2 the facts are not in dispute that housing loan of Rs. 35 lakh was allowed to the complainant and Tripartite Agreement Anx. 3 was entered between the parties. When amount has not been paid the bank has issued Anx. 19 to the effect that loan account is over due and non-payment of interest for the month of August and September 2015 Cibil may be effected. When amount was due the credit character of the consumer will influenced automatically. Hence, the bank has not committed any deficiency when amount falls due. As per Tripartite Agreement between the parties the builder is bound to refund the amount to the bank including margin money and borrower’s contribution but contention of the builder is that complainant and bank both were asking for refund of the money. He was in fix hence, he has not committed any deficiency in not refunding the amount but this contention has no basis as Tripartite Agreement between the parties is clear that in case of cancellation or otherwise the builder is bound to refund the money to the bank and builder was under the obligation to refund the money to the bank but admittedly builder has not refunded the money to the bank.
27. Hence, in view of the above the complaint deserves to be allowed only against the builder.
28. As per contention of the parties the amount of Rs. 41,68,374 is paid by the complainant to the builder. Hence, the above amount along with 18% interest from the date of deposit (which is charged by the builder in case of delayed payment) be paid to the bank and as per Clause 6 of Anx. 3 the bank after adjusting their outstanding dues including interest and cost, rest of the amount should be paid to the complainant consumer.
29. In view of the fact that non-applicant No. 1 is deficient, he has not delivered the possession of the property in time and even the money has not been refunded, the non-applicant No. 1 shall make a payment of Rs. 2 lakh as compensation for mental agony and Rs. 25,000 as cost of proceedings to the complainant.
30. In view of the above, both the complaints are allowed against non-applicant No. 1 builder and it is ordered that amount of Rs. 41,68,374 along with 18% interest from the date of deposit be paid to the bank and the bank after adjusting their outstanding dues including interest and cost, rest of the amount should be paid to the complainant consumer. The complainant is also entitled for Rs. 2 lakh as compensation for mental agony and Rs. 25,000 as cost of proceedings. Order be complied within one month.