w w w . L a w y e r S e r v i c e s . i n



Universal Infrastructures v/s Mohan Lal Barpa

    First Appeal No. 433 of 2018

    Decided On, 10 July 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Appellant: Sanjiv Menon, Advocate. For the Respondent: In person.



Judgment Text

Oral:

The complainant / respondent booked a residential flat with the appellant in a group housing project namely ‘The Taj Towers’. According to the complainant at the time of booking the possession was promised to him within 24 months of the booking and it was also promised that the booking amount shall be returned with 12% interest in case the possession was not delivered within 24 months. The complainant made a total payment of Rs.15.00 lacs to the appellant against the total cost of the flat which was agreed at RS.58,35,900/-. However, despite receiving more than 25% of the sale consideration, the appellant did not come forward to execute a sale agreement between the parties. The appellant after more than two years, asked the complainant to pay a sum of Rs.41,31,500/- with service tax. That payment having not been made, the complainant was informed that the payment made by him had been forfeited and if he wanted to execute the agreement, it would have to be at the new price of Rs.80.00 lacs. Being aggrieved the complainant approached the concerned State Commission by way of a consumer complaint, seeking refund of the amount paid by him along with compensation etc.

2. The appellant contested the consumer complaint, taking a preliminary objection that the complainant was not a consumer, he being a speculative buyer. On merits, it was alleged that the complainant had not come forward to sign the agreement and had stopped making further payment. It was also stated in the reply filed by the appellant that the possession was to be delivered within three years from the date of booking.

3. The State Commission vide impugned order dated 23.2.2018, directed the appellant to refund a sum of Rs.15.00 lacs to the complainant, along with interest @ 12% per annum, compensation quantified at Rs.50,000/- and the cost of litigation quantified at Rs.21,000/-. Being aggrieved from the said directions of the State Commission, the appellant is before this Commission by way of this Appeal.

4. The first question which arises for consideration is as to whether the complainant was not a consumer as is alleged by the appellant. Admittedly, the flat booked by the complainant with the appellant is a residential flat. There is no evidence that the complainant had booked the aforesaid flat for the purpose of making speculative gains. The complainant is stated to be a property dealer but that by itself would not show that the flat in question was booked by him for a speculative purpose. Even a property dealer is also entitled in law to book a house for his personal use. Therefore, the appellant has failed to prove that the complainant was not a consumer.

5. It is an admitted position that in term of Section 6 of Punjab Apartment & Property Regulation Act,1995 (hereinafter referred to as ‘PAPRA’), an agreement was required to be executed by the appellant on receiving 25% of the sale consideration of the flat. Admittedly, Rs.15.00 lacs was received by the appellant from the complainant. There is no documentary evidence of the appellant having even sent the sale agreement to the complainant for execution by him. It is therefore, evident that he had committed breach of the provisions of Section-6 of PAPRA. In view of the statutory provision, the appellant could even demand more than 25% of the sale consideration from the flat buyer without first executing the sale agreement with him. Since the requisite sale agreement was not executed in this case, the appellant could not have demanded any further payment from the complainant.

6. The learned counsel for the appellant submits that in view of the provisions contained in Section 35 of the PAPRA, the State Commission did not have the jurisdiction to adjudicate upon the alleged non-compliance of Section 6 of PAPRA. I however, find no merit in the contention. Section 35 of PAPRA excludes the jurisdiction of Civil Court to entertain or decide on the question relating to matters arising under the said Act. In view of the provisions contained in Section 3 of the C.P. Act, the remedy available to a consumer under the provisions of the Consumer Protection Act is an alternative remedy and therefore irrespective of the ouster of the jurisdiction of the Civil Court, the State Commission did have jurisdiction to adjudicate upon the contravention of provision of Section 6 of the PAPRA by the appellant.

7. Though, the case of the appellant is that the possession of the flat was to be delivered within three years, admittedly, even the construction of the flat was not complete within three years of the date on which the said flat was booked by the complainant. Though, the learned counsel for the appellant submits that the construction was complete in 2016, admittedly, the flat was not offered to the complainant even in the year 2016. The appellant instead of offering possession of the flat to the complainant raised additional demand which it could not have raised without executing the sale agreement, in terms of Section 6 of PAPRA.

8. In terms of Section 12 of PAPRA, the appellant is liable to refund the amount

Please Login To View The Full Judgment!

received from the complainant, with interest, though the rate of interest is to be decided by the Competent Authority. 9. Since the appellant failed to offer possession of the flat booked by the complainant, and also failed to execute the sale agreement in terms of Section 6 of PAPRA and offer possession of the flat to the complainant, the direction for payment of refund, along with interest and compensation does not call for interference by this Commission in exercise of its appellate jurisdiction. The appeal being devoid of any merits is hereby dismissed.
O R