Pritam Pal, President:
1. The aforementioned two appeals arise out of one and the same order dated 13.4.2010 passed by the District Consumer Forum-II, U.T. Chandigarh whereby complaint bearing No. 1026 of 2009 filed by Wing Commander Akhil Deep Sachdeva (hereinafter to be referred as complainant) was allowed with costs of Rs. 5000 against Sahara India Pariwar etc. (hereinafter to be referred as OPs) and OPs were directed to pay Rs. 1.35 lacs which the complainant had paid to them as provisional booking amount for housing flat in Sahara City Homes, Chandigarh. A sum of Rs. 80,000 was awarded as compensation for harassment and mental agony on account of huge delay in settling the case of complainant for allotment of promised flat. OPs were jointly and severally directed to pay the said amount within six weeks from the receipt of its certified copy, failing which OPs were held liable to pay penal interest @ 18% p.a. from 31.12.2004 the date of deposit till payment.
2. In fact appeal No. 207/2010 has been filed by Sahara India Pariwar, etc. for setting aside the impugned order whereas appeal No. 211/2010 has been filed by the complainant for enhancement of compensation. Since, in both these appeals common questions of law and facts are involved, so, we are deciding these appeals by this common judgment.
3. In nutshell, the facts culminating to the commencement of these two appeals may be recapitulated thus:
Opposite parties had floated a scheme known as Sahara/Swarn/Rajat Yojna for providing housing/dwelling units to its members/customers in the year 2003-04. The Complainant became member of Swaran/Rajat Yojna Scheme for allotment of 3 Bed Room Flat (Type C) at Chandigarh costing Rs. 27,07,000 by depositing Rs. 1,35,000 on 31.12.2004 being 5% of the total cost on 31.12.2004, vide receipt Annexure C-1. As per advertisement, OPs were to hand over possession of the flat to the members of the first phase in the Sahara city by 2007 but when they did nothing, the Complainant wrote a letter dated 12.1.2007 to OP No. 2, seeking status of construction activity. However, neither the Complainant was allotted any housing unit despite numerous visits to the OPs and representations made, nor the amount so deposited was refunded to him. It was given in the advertisement dated 12.12.2004 that those members who would not get allotment of houses shall get back the booking amount before April 15, 2005 but the same was not done by the OPs. Hence, alleging deficiency in service and unfair trade practice on the part of OPs, complainant filed complaint before the District Forum seeking direction to allot the house at Chandigarh to the Complainant at the original booking price and refund of Rs. 1,35,000 with interest @ 24% p.a. besides Rs. 17.00 lakh on account of compensation for loss of opportunity of owning a house at Chandigarh.
4. On the other hand, the case of OPs before the District Forum was that the Complainant had subscribed to Sahara Swarn/ Rajat Yojana and, thereafter, he converted his credit value of the said Scheme into the booking of a housing unit in the Sahara City Homes, Chandigarh. He had advanced a total sum of Rs. 1,35,350 on 31.12.2004 towards the provisional booking amount of a housing unit in Sahara City Homes, Chandigarh. It was pleaded that no assurance about the date of possession was ever given by the OPs to Complainant, as the construction projects were subject to various statutory compliances and the developers were at the mercy of the competent authorities which took their sweet time to issue the compliance certificate. The OPs have already acquired over 200 acres of agricultural land for Sahara City Homes, Chandigarh and further the Change of Land Use Certificate (CLU) had also been procured for 147 acres of land. The competent authority had issued the Letter of Intent (LOI) dated 16.11.2006 for Sahara City Homes, Chandigarh. In the said LOI, instead of charging 2.5 lacs INR per acre, the competent authority had raised a demand of 15.9 lacs INR per acre towards the External Development Charges. In order to safeguard the interest of the buyers on whom the additional burden was to shift, the OPs challenged the mala fide act of competent authority, thus, impugned the demand of 15.9 lacs INR per acre towards EDC, before the Punjab and Haryana High Court vide CWP No. 460/2007. The same was disposed of by the Honble Court vide its judgment dated 10.9.2008, inter alia, directing the competent authority to decide the matter afresh. Pursuant to the order of Honble High Court, the OP had approached the competent authority which had dismissed the contentions of the OPs. Thereafter, the OPs had again filed a CWP No. 2161/2009, inter alia, challenging the order of the competent authority before Honble Punjab and Haryana High Court, which was eventually dismissed by the Single Bench. The OPs thereafter filed the LPA against the said order and still the matter was sub-judice before the Court. It was pleaded that the acts of the OPs were bona fide and taken in good faith for securing the interest of the buyers and as such OPs cannot be flamed for the delay in handing over of possession of the unit to the Complainant as the delay was due to force majeure and for the reasons beyond the control of the OPs. It was pleaded that there was no deficiency in service on its part and a prayer was made for dismissal of the complaint.
5. The District Consumer Forum after going through the evidence and hearing the Counsel for the parties allowed the complaint as indicated in the opening part of this judgment. Aggrieved against the said order, complainant as well as opposite parties have come up in their respective appeals.
6. We have heard learned Counsel for the parties and gone through the file carefully. The first point of arguments raised by the Counsel for OPs was that the District Forum at Chandigarh had no territorial jurisdiction to adjudicate upon the matter as no cause of action or part thereof had arisen within its local limits. Mere branch office of OPs at Chandigarh without any cause of action does not confer jurisdiction upon the District Forum for adjudicating and deciding complaint against OPs. In support of his contention, he placed reliance upon an authority of Honble Supreme Court titled Sonie Surgical v. National Insurance Company Ltd., IV (2009) CPJ 40 (SC)=IX (2009) SLT 111=2010 CTJ 2 (SC) (CP). The second point of arguments raised on behalf of OPs was that the complainant had deposited only 5% of the total cost of the flat as an advance money and no other amount was deposited, so merely by deposition of earnest money, applicant was not vested with any right for allotment of a flat/plot. To support of his contention, he placed reliance upon an authority of State Commission Punjab in Pritpal Singh v. State of Punjab through Chief Administrator, PUDA, 2002 (1) CPC. However, these points have been repelled by the learned Counsel for complainant.
7. We have given our thoughtful consideration to the above points of arguments and find the same to be devoid of any merit, inasmuch as there is receipt Annexure C-1 issued by OP No. 3 whereby a sum of Rs. 1,35,350 was accepted by the authorized signatory of OP at its office in Sector-22B, Chandigarh. It is recited in the said receipt that the amount was received for âSahara City Homesâ scheme as advance for booking of immovable property/housing unit of Sahara India. Thus, on booking the flat and depositing of advance money at Chandigarh a part of cause of action arose to the complainant to file complaint with the District Forum at Chandigarh as envisaged under Section 11 of the Consumer Protection Act.
8. It is expressly recited in the advertisement given by OPs for booking of flats Annexure C-5 that the provisional members of the scheme who would not get flats, would be refunded advance booking amount by 15.4.2005. Thus, it was obligatory on the part of OPs to refund the advance amount deposited by the complainant in case it was not possible to allot flat. The ratio of the case law cited on behalf of the OP in this regard is not applicable to the instant case as the facts of cited authority are quite at variance from the facts of the case in hand and as such no benefit can be derived from the observations made therein.
9. Now coming to the second appeal filed by the complainant for enhancement of compensation awarded by the District Consumer Forum. In this regard, suffice it to say that somehow or the other OPs could not launch the project till today and the booking of flats in the instant case had started after due advertisement in the year 2004. The construction of the project was to be completed by the end of 2007. After waiting till the end of 2007 when complainant found that the construction work had not started, thus his complaint filed in the year 2009 is justified and a sum of Rs. 80,000 in lump sum awarded on account of compensation appears to be quite reasonable and justified. It is also to add here that in this case the complainant had deposited Rs. 1.35 lacs being 5% of the total cost of the flat in the year 2004 and thereafter no instalment was demanded or paid. Thus, in these given facts and circumstances of the case, we do not find any justification for enhancement in the compensation awarded by the District Forum.
10. Consequently, both appeals fail and the impugned order dated 13.4.2010 passed by the District Consumer Forum is sustained. In the result, both appeals are hereby dismissed, leaving the parties to bear their own costs.
Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.