BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF First appeal year
(Against the Order passed by the Hon'ble State commission name at State commission city in C.C. No. State commission complaint number/State commission complaint year)
IN THE MATTER OF:
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
WITH
I.A. No. Stay application (I.A.) number OF First appeal year: AN APPLICATION FOR STAY OF THE IMPUGNED ORDER/JUDGMENT.
I.A. NO. Exemption application (I.A.) number OF First appeal yearAN APPLICATION SEEKING EXEMPTION FROM FILING DIM / LEGIBLE / TYPE COPY OF ANNEXURES.
PAPERBOOK
(KINDLY SEE INSIDE FOR INDEX)
Law firm name LEGAL
Through
Advocate's name
Mob.: +91-Advocate's mobile numberE-Mail:
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF First appeal year
(Against the Order passed by the Hon'ble State commission name at State commission city in C.C. No. State commission complaint number/State commission complaint year)
IN THE MATTER OF:
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
I N D E X
| S. NO. | PARTICULARS | PAGES |
|---|
| 1. | List of Dates and Events. | |
| 3. | First Appeal under Section 51 of the Consumer Protection Act, 1986, along with Affidavit in Support. | |
| 5. | I.A. No. Stay application (I.A.) number of First appeal year: An Application for Stay of the Impugned Order / Judgment of the Ld. Lower Commission, along with affidavit. | |
| 6. | I.A. No. Exemption application (I.A.) number of First appeal year: An Application seeking exemption from filing dim/legible/type copy of annexures, along with affidavit. | |
| 7. | Impugned Order dated Date of impugned order (day).Date of impugned order (month).Date of impugned order (year) passed by the Ld. State commission name, State commission city, in C.C. No. State commission complaint number/State commission complaint year. | |
| 8. | ANNEXURE A-1 (colly): Copy of the Consumer Complaint No. Consumer complaint number/Consumer complaint year filed under Section 47(1)(a)(i) of the Consumer Protection Act, 1986 before the Ld. State Commission, State commission city, by the Respondent, along with annexures. | |
| 9. | ANNEXURE A-2 (colly): Copy of the Reply filed by the Appellants to the Consumer Complaint No. Consumer complaint number/Consumer complaint year before the Ld. State Commission, State commission city, along with annexures. | |
| 10. | ANNEXURE A-3: Copy of the Rejoinder filed by the Respondent to the Reply filed by the Appellants to the Consumer Complaint No. Consumer complaint number/Consumer complaint year before the Ld. State Commission, State commission city. | |
| 11. | ANNEXURE A-4: Copy of the Evidence Affidavit of the Respondent in Complaint No. Consumer complaint number/Consumer complaint year before the Ld. State Commission, State commission city. | |
| 12. | ANNEXURE A-5: Copy of the Evidence Affidavit of the Appellants in Complaint No. Consumer complaint number/Consumer complaint year before the Ld. State Commission, State commission city. | |
| 13. | ANNEXURE A-6: Copy of the written submissions / arguments filed by the Respondent in Complaint No. Consumer complaint number/Consumer complaint year before the Ld. State Commission, State commission city. | |
| 14. | ANNEXURE A-7: Copy of the written submissions / arguments filed by the Appellants in Complaint No. Consumer complaint number/Consumer complaint year before the Ld. State Commission, State commission city. | |
DELHIAPPELLANTS
DATEDTHROUGH
Law firm name
(Law Firm)
ADVOCATES
Law firm's office address
Mob: Law firm's mobile number
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF First appeal year
(Against the Order passed by the Hon'ble State commission name at State commission city in C.C. No. State commission complaint number/State commission complaint year)
IN THE MATTER OF:
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
MEMO OF PARTIES
1. M/S. First appellant company name
Through its Authorised Representative, Mr. Authorised representative's name
First appellant's address
2. M/S. Second appellant company name
Second appellant's address: APPELLANTS
VERSUS
MS. Respondent's name
D/o Respondent's father's name
R/o Respondent's residential address: RESPONDENT
DELHIAPPELLANTS
DATEDTHROUGH
Law firm name (Law Firm)
ADVOCATES
Law firm's office address
Mob: Law firm's mobile number
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF First appeal year
(Against the Order passed by the Hon'ble State commission name at State commission city in C.C. No. State commission complaint number/State commission complaint year)
IN THE MATTER OF:
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
APPLICATION BY AND ON BEHALF OF THE APPLICANTS / APPELLANTS SEEKING EXEMPTION FROM FILING THE CERTIFIED COPIES AND FAIR AND TYPED COPIES OF THE DOCUMENTS AND ANNEXURES WITH THE PRESCRIBED MARGIN.
MOST RESPECTFULLY SHOWETH:
1.That the Applicants / Appellants, above named, have filed the present First Appeal under the above case title, the contents whereof are not being repeated herein for the sake of brevity, and the same may be treated as an integral part of the present application.
2.That the Appellants have not been able to file the certified / original copies of the documents at this stage and are filing only true copies thereof. The Appellants pray to be exempted from filing the said certified / original copies, and undertake to file the same within the time allowed by this Hon'ble Commission.
3.That the Appellants have also filed certain documents along with the present appeal which are not clearly legible, and pray for liberty of this Hon'ble Commission to file better typed copies thereof at a later stage.
4.That the Appellants have also filed certain documents along with the appeal which do not bear the left margin required under the guidelines of this Hon'ble Commission. Owing to paucity of time, the Appellants had no option but to file the said documents as they are, and by way of the present application the Appellants pray for exemption in respect of the filing of the said documents at this stage.
5.That the Applicants, by way of the present application, pray that they may be exempted from filing the documents referred to above, and undertake to file the same as and when directed by this Hon'ble Commission.
P R A Y E R
It is, therefore, most respectfully prayed that this Hon'ble Commission may kindly be pleased to exempt the Applicants from filing the certified copies and fair and typed copies of the documents, and the true copies filed herewith may kindly be considered for the disposal of the appeal, in the interest of justice.
Such other order or orders as may be deemed fit and proper in the facts and circumstances of the case may also kindly be passed.
It is prayed accordingly.
DELHIAPPELLANTS
DATEDTHROUGH
Law firm name
(Law Firm)
ADVOCATES
Law firm's office address
Mob: Law firm's mobile number
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF First appeal year
(Against the Order passed by the Hon'ble State commission name at State commission city in C.C. No. State commission complaint number/State commission complaint year)
IN THE MATTER OF:
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
APPLICATION BY AND ON BEHALF OF THE APPLICANTS / APPELLANTS FOR STAY OF THE OPERATION OF THE IMPUGNED ORDER AND JUDGMENT DATED Date of impugned order (day).Date of impugned order (month).Date of impugned order (year) PASSED BY THE LD. State commission name, State commission city, IN CONSUMER COMPLAINT NO. State commission complaint number/State commission complaint year FILED BY THE RESPONDENT.
MOST RESPECTFULLY SHOWETH:-
1.That the Applicants/Appellants above named have filed the present First Appeal under the above case title, the contents of which are not being repeated herein for the sake of brevity, and the same may be treated as an integral part of this application as well.
2.That the present Appeal has been filed by the Appellants before this Hon'ble Commission against the impugned order dated Date of impugned order (day).Date of impugned order (month).Date of impugned order (year) passed by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad, in Consumer Case No. State commission complaint number/2020, seeking an order from this Hon'ble Commission to set aside the order passed by the said Hon'ble State Commission in Consumer Case No. Consumer case number (earlier matter)/2020 in the matter titled as Respondent/complainant's name Versus Opposite party's name in earlier matter & Second opposite party's name in earlier matter.
3.That the Appellants have a prima facie good case on merits, and the balance of convenience heavily lies in their favour. The Appellants have every likelihood of succeeding before this Hon'ble Commission. In the event that a stay of the impugned order dated Date of impugned order (day).Date of impugned order (month).Date of impugned order (year) passed by the Ld. State Commission, Hyderabad, in C.C. No. State commission complaint number/2020 is not granted by this Hon'ble Commission, the Appellants will suffer irreparable loss and injury which no subsequent order will be able to compensate, whereas if the present application is allowed, no prejudice will be caused to the Respondent.
4.That the present application is moved bona fide in order to meet the ends of justice.
P R A Y E R:-
In view of the aforesaid facts, it is most respectfully prayed that this Hon'ble Commission may kindly be pleased to allow the present application and stay the operation of the impugned order dated Date of impugned order (day).Date of impugned order (month).Date of impugned order (year) passed by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad, in Consumer Case No. State commission complaint number/2020 in the matter titled as Respondent/complainant's name Versus Opposite party's name in earlier matter & Second opposite party's name in earlier matter, in the interest of justice.
Such other order or orders as may be deemed fit and proper in the facts and circumstances of the case may also kindly be passed.
It is, therefore, most respectfully prayed accordingly.
DELHIAPPELLANTS
DATEDTHROUGH
Law firm name (Law Firm)
ADVOCATES
Address.
Email: Law firm's email address
Mob: Law firm's mobile number
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF 2023
(Against the Order passed by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad, in C.C. No. State commission complaint number/2020)
IN THE MATTER OF:-
Appellants' name: APPELLANTS
VERSUS
MS. Respondent's name: RESPONDENT
CERTIFICATE
Certified that I have filed certified/attested true copies of:
(i)The order(s) passed by the State Commission, Hyderabad; and
(ii)All the pleadings in the complaint and the evidence filed by both the parties, oral and documentary, as instructed to the Undersigned Law Firm by the Appellants.
DELHIAPPELLANTS
DATEDTHROUGH
Law firm name (Law Firm)
ADVOCATES
Address.
Email: Law firm's email address
Mob: Law firm's mobile number
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF 2023
(Against the Order passed by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad, in C.C. No. State commission complaint number/2020)
IN THE MATTER OF:-
1. M/S. First appellant company name,
Through AR First appellant's authorised representative's name
Address.
2. M/S. Second appellant company name,
Through AR Second appellant's authorised representative's name
Address.
: APPELLANTS
VERSUS
MS. Respondent's name
Address.: RESPONDENT
FIRST APPEAL UNDER SECTION 51 OF THE CONSUMER PROTECTION ACT, 2019 (AS AMENDED) ON BEHALF OF THE APPELLANTS ABOVE NAMED, INTER ALIA SEEKING NECESSARY ORDER FROM THIS HON'BLE COMMISSION TO SET ASIDE THE ORDER PASSED BY THE HON'BLE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HYDERABAD, IN THE MATTER TITLED AS "Respondent/complainant's name VERSUS First appellant company name in case title & DEVELOPERS PVT. LTD. & ANR." IN CONSUMER CASE NO. State commission complaint number/2020.
TO,
THE HON'BLE PRESIDENT AND THE HON'BLE MEMBERS OF THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI.
THE APPELLANTS ABOVE NAMED
HEREBY SUBMIT AS UNDER:
MOST RESPECTFULLY SHOWETH:-
1.That the Appellants, by virtue of the present First Appeal filed before this Hon'ble Commission, seek an order from this Hon'ble Commission to set aside the order passed by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad, in Consumer Case No. State commission complaint number/2020 in the matter titled as Respondent/complainant's name Versus First appellant company name in case title & Developers Pvt. Ltd. & Anr., dated Date of impugned order (day).Date of impugned order (month).Date of impugned order (year) (hereinafter referred to as the "Impugned Order"). The certified copy of the Impugned Order was ready for delivery on Date the certified copy of the impugned order was ready/received and was delivered on Date the certified copy of the impugned order was delivered.
2.It is the case of the Respondent/Complainant that the Respondent is an IT professional who purchased Flat/unit number, Building/project name, in the project floated by the Appellants, by entering into an agreement of sale dated Date of agreement of sale (day).Date of agreement of sale (month).Date of agreement of sale (year), which was registered on Date of registration of sale agreement (day).Date of registration of sale agreement (month).Date of registration of sale agreement (year), for a consideration of Rs. Sale consideration amount (₹)/-, which was paid within the time frame prescribed by the Appellants; that the Appellants did not prepare the agreement despite receiving the earnest money and the first instalment, but ultimately prepared the same and got it executed on Date the agreement of sale was executed; that on the same date the Respondent received an email informing her that the unit was ready for registration; that when the Respondent was leaving for Country the respondent was leaving for, she was assured by the Appellants that they would complete the unit in all respects and intimate her accordingly; that the Respondent executed a GPA for completion of the remaining process; that on Date of registration completion email (day).Date of registration completion email (month).Date of registration completion email (year), the Respondent received an email informing her that the registration had been completed; that the Respondent paid the total consideration in Month and year the total consideration was paid and requested early completion of registration, but no interest was evinced by the Appellants; that the registration was ultimately completed on Date the registration was finally completed, owing to the persistent efforts made by the Respondent, as alleged.
3.It is further stated that vide letter dated Date of the letter levying late payment charges, the Appellants levied late payment charges to the tune of Rs. Late payment charges amount (₹)/-, out of which Rs. Interest component of late charges (₹)/- was towards interest and Rs. Administrative charges component (₹)/- was towards administrative charges, although there was no fault on the part of the Respondent; that after prolonged correspondence, the Appellants waived the late payment charges at the time of registration; that on Date of site visit (day).Date of site visit (month).Date of site visit (year), when the Respondent visited the unit, she found it incomplete and communicated the issues to the Appellants, seeking repairs, but each time the standard answer given was that the issues had been fixed; that vexed by their attitude, the Respondent even offered to get the issues rectified herself at the Appellants' cost, but received no response; that owing to the acts of the Appellants, the handing over of possession was delayed; that on Date of legal notice (day).Date of legal notice (month).Date of legal notice (year), a legal notice was issued to the Appellants demanding payment of compensation, in reply to which a notice dated Date of reply notice (day).Date of reply notice (month).Date of reply notice (year) was received from the counsel for the Appellants stating that instructions were awaited; that in these circumstances, the Respondent was constrained to take possession of the unit on Date of possession taken (day).Date of possession taken (month).Date of possession taken (year), with many issues remaining unaddressed; that on Date of grievance email (day).Date of grievance email (month).Date of grievance email (year), the Respondent sent an email expressing her grievances, but no response was received thereto; that in Month and year the issues were rectified, the Respondent got the issues rectified at her own cost by engaging the services of Name of the interior designer engaged by the respondent, as per the estimates provided by them; that the Respondent was made to suffer considerable mental agony at the hands of the Appellants, as alleged. Thereafter, the Complainant/Respondent filed the Complaint before the Ld. State Commission, Hyderabad, stating the above-mentioned facts, and sought relief in the form of a direction to the Appellants to pay Rs. Repair cost claimed (₹)/- towards the costs incurred by the Complainant in rectifying the issues; to pay Rs. Loss of rent claimed (₹, words/figure part 1) Loss of rent claimed (₹, words/figure part 2) towards loss of rent for Period of loss of rent claimed due to the delay in delivery of possession; to pay interest at the rate of Interest rate claimed (per annum) p.a. on the said amounts from the date of handing over of the flat till the date of payment; to pay compensation of Rs. Compensation claimed for mental agony (₹, part 1) for the mental agony suffered by the Complainant; and to pay costs of Rs. Cost of complaint claimed (₹, part 1) Cost of complaint claimed (₹, part 2).
4.That after receipt of notice, the Appellants filed their written reply to the complaint before the Ld. State Commission, wherein it was submitted that in its residential portfolio, the Appellant Group has a presence across multiple price points, with unit values ranging from Rupees Lower range of unit values (₹ million) million to Rupees Upper range of unit values (₹ million) million, and that through its commercial portfolio it develops both office and retail projects as income-generating assets on a lease/sale model. As on Date of ongoing projects data (month and year), the Appellant Group had Number of ongoing projects ongoing projects, of which Number of projects in India were in India and Number of projects abroad abroad. These projects account for a developable area of Total developable area (million sq. ft.) million square feet, of which Developable area in MMR (million sq. ft.) million square feet pertains to projects located in the Region where projects are located. As of Month of planned projects data Year of planned projects data, the Appellant Group had Number of planned projects planned projects in India with a developable area of Planned projects developable area (million sq. ft.) million square feet, of which Planned projects area in MMR (million sq. ft.) million square feet is located in the Region where projects are located. Given its large-scale operations and delivery of innumerable homes through a customer-centric business model, the remarkable progress and excellent reputation of the Appellant Group are conspicuous, and accordingly, the Complainant's attempt to paint an unscrupulous image of the Appellants is wholly misplaced and unfounded. The Appellant Group is synonymous with developing iconic structures in City where iconic structures were developed and with bringing renowned global names such as Names of global brands/collaborators to India.
5.It is further submitted that the Appellants deny each and every allegation, averment and/or contention raised by the Complainant in the proceedings which is contrary to and/or inconsistent with what is stated hereinafter. The complaint of the Complainant is misconceived and has been filed solely with a mala fide intention to harass the Appellants and to extort money from them. It is submitted that the Complainant purchased residential unit at Address of the residential unit by entering into an Agreement of Sale dated Date of agreement of sale (day).Date of agreement of sale (month).Date of agreement of sale (year), and the same was registered vide Registered Sale Deed dated Date of registered sale deed (day).Date of registered sale deed (month).Date of registered sale deed (year).
6.It is further submitted that the Agreement to Sell was executed at the time when the Complainant had paid the requisite amounts to the Appellants. It is submitted that the Complainant herself, in her email dated Date of complainant's email (day).Date of complainant's email (month).Date of complainant's email (year), had explained her late payment and the reasons therefor. The Appellants beg to produce the copy of the email dated Date of email to be produced in evidence (day) at the time of evidence. It is further submitted that the Appellants sent a letter for overdue payment dated Date of overdue payment letter (day).Date of overdue payment letter (month).Date of overdue payment letter (year) to the Complainant, showing a total of Rs. Total overdue amount (₹)/- (Rupees Overdue amount in words). It is further submitted that a Final Notice before Termination was also issued to the Complainant on Date of final notice before termination (day). However, the Complainant failed to respond to the same. Subsequently, since the Complainant failed to pay the outstanding dues to the Appellants, a Termination of Allotment dated Date of termination of allotment (day).Date of termination of allotment (month).Date of termination of allotment (year) in respect of Unit No. Unit number was intimated to the Complainant. As on that date, the total consideration was Rs. Total consideration amount (₹)/- and the amount received from the Complainant was Rs. Amount received from complainant (₹)/- (Rupees Amount received in words). The amount forfeited was Rs. Amount forfeited (₹)/- (Rupees Forfeited amount in words), and the refund amount was Rs. Refund amount (₹)/- (Rupees Refund amount in words).
7.It is further submitted that the Complainant did not pay the remainder of the total sale consideration by the middle of Year of remaining payment made, even though the Termination of Allotment had already been issued on Date of termination of allotment (day).Date of termination of allotment (month).Date of termination of allotment (year).
8.It is further submitted that all issues were addressed at the time of handover of possession. It is submitted that at the time of offering possession there were a few minor snags, such as unfinished textured painting in the corridor/servant entrance area and incomplete polishing of the main door. However, these were rectified during the handover of possession, and photographs of the rectified work were also shared with the Complainant.
9.It is submitted that upon receiving the requests for rectification of the issues, the Appellants rectified the same and duly informed the Complainant accordingly. It is pertinent to mention that the Complainant has not made any complaint regarding the physical condition of the allotted unit at the time of taking possession, which shows that there was no delay or defect attributable to the Appellants. It is thus submitted that the Complainant was able to utilise the unit as she deemed fit.
10.It is further submitted that the invoice annexed by the Complainant appears to be a mere estimate and not an invoice, and the Complainant's advocate has made comments thereon, which is highly unusual as an invoice never bears the comments of an advocate. It is further submitted that the invoice does not bear the stamp of the company, which shows that the invoice is not authentic but a false and baseless piece of paper. Even otherwise, all the snags were rectified before handover; hence, no question of payment arises. The Appellants hereby deny all liabilities arising from the engagement of any third-party contractors. It is submitted that the Appellants have always cooperated with the Complainant in respect of any legitimate issues that arose in respect of the unit.
11.That the Complainant filed a rejoinder to the reply of the Appellants.
12.Thereafter, all witnesses were examined by way of evidence by way of affidavit upon completion of pleadings and evidence. Thereafter, counsel for both parties argued the matter and the order was reserved.
13.That on Date of state commission order (day).Date of state commission order (month).Date of state commission order (year), the Ld. State Commission held that the complaint was partly allowed with joint and several liability against Appellants No. 1 and 2, with costs of Rs. Costs imposed (₹)/-, by directing them to pay Rs. Amount directed to be paid (₹, part 1) Amount directed to be paid (₹, part 2) with interest @ 12% p.a. from Month and year from which interest is payable till the date of actual payment, besides compensation of Rs. Compensation amount (₹, in words/figure). As a result thereof, the Impugned Order came to be passed, which is now challenged before this Hon'ble Commission on the grounds mentioned below.
GROUNDS:-
A.BECAUSE, the Complainant evinced interest in booking the said Flat and applied in writing, by Application Form, for the allotment of the said Flat. It is evident from the said Agreement to Sell (the "Agreement") that the Complainant is not a consumer but a speculator who intended to make an investment by applying for the allotment of the said Flat, while already possessing an existing residence, as mentioned in the Agreement. Further, the same address was provided by the Complainant at the time of execution and registration of the said Agreement, and the same is incorporated in the said Agreement. Section 7 (1) of the Consumer Protection Act makes it abundantly clear that any person who buys goods or avails of services from a service provider for a commercial purpose is not entitled to invoke the jurisdiction of a consumer fora for the redressal of his grievance. The Hon'ble National Commission, in a recent case titled, Smt. Madhu Saigal and Anr Vs. M/s. Omaxe Buildhome Pvt Ltd, 2014 (3) CPR 265 (NC) has held that where a consumer books more than one unit of residential premises, the purchase of apartments amounts to booking of such premises for investment/commercial purpose, the Complainant is not a consumer, and the complaint is not maintainable.
In the said order, the Authority also took note of another case, Chilkuri Adarsh Vs. ESS VEE Constructions, III (2012) CPJ 315, wherein also it was held as under:-
B) "Arguments of the learned Counsel have been considered. However, we are of the view that the complaint as presented cannot be maintained before a Consumer Fora, like ours, as the agreement was for the construction of two showrooms, which obviously relate to commercial purpose and the complainant, therefore, will not come within the definition of a 'consumer', as per Section 2(l)(d) of the Consumer Protection Act, 1986. This has been the consistent view of this Commission. It has held that even when a consumer has booked more than one unit of residential premises, it amounts to booking of such premises for investment/commercial purpose. This Commission in the case of Jagmohan Chabra and another Vs. DLF Universal Ltd., IV (2007) CPJ 199, in a somewhat similar case held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed of the complaint with liberty to the complainant to approach the Civil Court. The said order has since been upheld by the Hon'ble Supreme Court, as Civil Appeal No. Civil appeal number (start)-Civil appeal number (end) of 2008, filed before the Supreme Court, stands dismissed vide the Apex Court's order dated Date of Supreme Court order (day).Date of Supreme Court order (month).Date of Supreme Court order (year)".
B.BECAUSE, in the case in hand, though the Complainants have their existing residence as mentioned in the said Agreement, they booked the said Flat; therefore, it is manifest that the Complainant availed the services of the Appellant purely for investment or commercial purposes, and consequently the Complainants do not fall within the definition of a consumer.
C.BECAUSE, the Complainant, vide its email dated Date of complainant's email (day) Date of complainant's email (year/month), admitted that it wished to earn profit by renting out the unit, which makes it abundantly clear that the Complainant purchased the said unit for commercial purposes only. It is submitted that the Complainant is, therefore, not entitled to invoke the jurisdiction of the Ld. Commission for redressal of its grievances. The Appellant states that the Captioned Complaint is nothing but an attempt to misuse the process of the Ld. Commission with the sole object of enriching itself through illegal means, and the same is therefore liable to be set aside.
D.BECAUSE, the limitation for the cause of action of the Complainant has expired, and the complaint is delayed beyond 31 days as per the Complainant's own admission, without any proper reason being cited. The cause of action is therefore barred by the law of limitation, and the complaint deserves to be rejected at the threshold itself.
E.BECAUSE, in and around Year of initial approach for purchase, the Complainant approached the Respondent to purchase Flat No. Flat number purchased in a building called Building/project name (the "said Building") in the said project at City of the project (the "said Flat"). Accordingly, on Date of agreement to sell, the parties executed the Agreement to Sell (the "Agreement").
F.BECAUSE, the Complainant, vide possession letter dated Date of possession letter (day) Month of possession letter Year of possession letter, has taken possession of the said Flat from the Opposite Party. The Appellant categorically states and submits that there is no fact which gives rise to any dispute and hence no cause of action exists. It is pertinent to note that the Complainants, after satisfying themselves, accepted the fit-out possession of the said Flat, accepted the keys thereof, and confirmed that they physically inspected the said Flat and found all amenities and areas to be as per the terms of the said Agreement, that the construction quality and workmanship were satisfactory, and that they had no complaint or grievance of any nature whatsoever in respect of the said Flat or under the said Agreement or otherwise.
G.BECAUSE, the Complainants, after going through all the terms and conditions and after accepting the same and after satisfying themselves, signed and acknowledged the Possession Letter dated Date of possession letter in respect of the said Flat. The Appellant states that in the said letter dated Date of acknowledgement letter, it was confirmed by the Complainants as follows:-
"We request you to inspect the unit before accepting its keys. In case of any defects/issues, we request you to immediately inform the Facility Management representative about the same. The defects, if any, shall be rectified, as per the Company's policies, within 30 days of receiving such information. You may thereafter collect the keys for your unit from the Facility Management representatives at the site office. Upon collection of the keys as above, it will be deemed that you confirm and undertake that:
(i)You have inspected the Unit;
(ii)You have found and satisfied yourself that all amenities, areas, construction quality and workmanship are to your satisfaction and in accordance with the Agreement;
(iii)You have no complaint or grievance or claims of any nature whatsoever against the Company in respect of the Unit or under the Agreement for sale or otherwise, and the right to raise such grievances/claims shall be deemed to have been waived."
H.BECAUSE, since the Complainants have taken possession of the said Flat after satisfying themselves, without raising any objection, qualification, precondition or protest, they are not entitled to any relief; furthermore, the Complainants also have the benefit of appreciation in the value of the said Flat, as the current market value of the said flats is higher than the price at which the said Flat was booked by the Complainants.
I.BECAUSE, the Appellant states and requests the Ld. Hon'ble Commission to refer to and rely upon the order dated 1st July 2013 passed by the Hon'ble State Commission in C.C. No. 13/235, filed by Maya M. Dharmadhikari versus Macrotech Constructions Pvt. Ltd. through its Director, in which the Hon'ble State Commission was pleased to dispose of the said complaint without admitting it. The Appellant states that in the said case the Complainant had similarly signed the possession acknowledgement letter on Date of possession acknowledgement letter in cited case and thereafter remained silent until she wrote, on Date of first grievance email in cited case, to the Opponent for the first time raising concerns about delayed possession, to which the Opponent replied on Date of opponent's reply in cited case. The Appellant states that in the said case the Hon'ble State Commission concluded that the Complainant was now seeking to go beyond her possession acknowledgement letter dated Date of possession acknowledgement letter in cited case. The Hon'ble State Commission also rightly pointed out that if the Complainant wished to do so, it would require a detailed inquiry and recording of lengthy evidence, and such an exercise is not expected in the summary inquiry contemplated in a consumer complaint.
J.BECAUSE, in a recent judgment dated 18th September, 2014 in Consumer Complaint No. 61 of 2013, even the Hon'ble Andhra Pradesh State Commission came to the same conclusion that once the Complainant accepts possession without raising any objection, he is not entitled to any relief in connection with the allegation seeking compensation. In connection therewith, the Hon'ble Andhra Pradesh State Commission observed: "However, the complainant occupied the said flat in the month of September, 2012. Further, according to the Opposite Party a letter was executed on 8.3.2013 which was marked as Ex. B2 wherein it was categorically mentioned at clause-III which reads as follows:
'You have no complaint or grievance or claims of any nature whatsoever against the company in respect of the unit or under the agreement for sale or otherwise and the right to raise such grievances/claims shall be deemed to have been waived." (Emphasis supplied)
This letter was addressed by the Appellant on Date of letter in cited case and it was executed and confirmed by the complainant by signing the said letter. In those circumstances, he has given up and waived all these matters. It may be a fact that the complainant lodged a complaint in December, Year of complaint lodged, but when this letter marked as Ex. B2 is considered, everything stands waived. In our considered view, we cannot award any compensation as prayed for." The Appellant further submits that the said order dated 18th September, Year of earlier state commission order was challenged by the Complainant therein before the Hon'ble National Commission by filing First Appeal No. Earlier first appeal number of Year of earlier first appeal, and the same was dismissed as withdrawn by the Appellant therein. In these circumstances, the order dated Date of earlier order passed in Consumer Complaint No. Earlier consumer complaint number of 2013 has attained finality.
K.BECAUSE, in a recent judgment dated 30th March, 2015 passed by the Hon'ble Maharashtra State Commission in Consumer Complaint No. 157 of 2012, titled Rajesh Baheti Vs. Lodha Developers Ltd., in an identical matter wherein the complainant had sought compensation for delay in handing over possession of a villa booked by him, although he had already taken possession of the said villa and had also signed the possession letter containing a waiver clause, the Hon'ble State Commission observed at Point No. [5] as follows:
“[5] .. Following question arises for consideration of the Complaint:-
"Whether the Complainant, by signing the letter issued by the Opponent at the time of taking possession, waived the monetary claim to recover interest?" Our answer to the fact in issue is yes.
Andhra Pradesh State Commission, in Complaint No. 61 of 2013, Vinod Daralc Vs. M/s. Lodha Healthy Constructions and Developers Pvt. Ltd., decided in a similar situation, interpreted a similar clause in the possession letter issued by the builder as being optional in nature, and if accepted, mandatory in character.
The letter dated 09/11/2011 addressed to the Complainant by the Opponent, served upon the Complainant, stipulated a covenant of waiver of claims. The clause in the said letter runs as follows:
i)You have inspected the Unit;
ii)You have found and satisfied yourself that all amenities, areas, construction quality and workmanship are to your satisfaction and in accordance with the Agreement;
iii)You have no complaint or grievance or claims of any nature whatsoever against the Company in respect of the Unit or under the Agreement for sale or otherwise, and the right to raise such grievances/claims shall be deemed to have been waived;
L.BECAUSE, the Hon'ble Maharashtra State Commission was pleased to dismiss the said Complaint No. 157 of 2012, observing that the complainant had failed to establish any deficiency in service committed by the opponent.
M.BECAUSE, the complainants have taken quiet, peaceful and vacant possession of the said Flat and have also acknowledged that they have no claims or grievances under the said Agreement. Thus, there is no fact which gives rise to a dispute of delayed possession after acceptance of possession of the said Flat, as rightly held by the Hon'ble State Commission in the aforesaid cases of Smt. Maya Dharmadhikari, Vinod Daralc and Rajesh Baheti (supra). No cause of action survives in the present matter, and hence the Complaint is not maintainable.
N.BECAUSE, the complainant's allegations regarding delay in preparing the Agreement to Sell are false and baseless. It is submitted that the Occupancy Certificate (OC) for the complainant's Unit was obtained long ago, and it is therefore abundantly clear that the construction of the Unit was completed long back. It is submitted that since the complainant herself delayed the payments required to be made to the Appellant, the Appellant was compelled to delay the process of preparing the Agreement to Sell. There was thus no delay on the part of the Appellant in getting the Agreement to Sell and the Sale Deed signed. As soon as the entire balance consideration for the Unit was paid, the Appellant prepared the Agreement to Sell and got the same executed, and upon payment of the remaining balance consideration, the Sale Deed was executed in July 2018. There was no delay whatsoever on the part of the Opposite Parties in this regard. The Appellant is in compliance with all the terms and conditions of the Sale Deed dated Date of execution of the Sale Deed, executed between the parties, and there is no cause of action for filing the present Complaint on account of any alleged delay in executing the Agreement to Sell.
O.BECAUSE, the Appellant states that it had, time and again, issued several demand letters calling upon the complainant to make the payments in accordance with the payment schedule of the said Agreement. However, the complainant delayed in making the payments within the stipulated time. It is further submitted that, despite repeated reminders to make the payment, the complainant failed to make the time-bound payment for reasons best known to him, and hence the Appellant was constrained to issue the final notice before termination letter dated Date of final notice before termination (day). Copies of the Demand Letter dated Date of demand letter, the Interest Letter dated Date of interest letter and the Final Notice before Termination dated Date of final notice before termination (day) are placed on record. The Appellant shall additionally produce several other demand letters, interest letters and e-mails on record at the time of evidence.
P.BECAUSE, it is firstly submitted that the complainant appears to have completely misunderstood and misconstrued the clear, unequivocal and unambiguous terms of the Agreement to Sell dated Date of agreement to sell executed by and between the parties. It is submitted that there has been no delay in the handover of possession of the Unit (as such term is defined in the Agreement) to the complainant. The relevant clauses of the ATS are as follows:
Clause No. 1.19 — "Date of Offer of Possession" shall mean the date on which the Company, by written intimation, makes the Unit available to the Purchaser along with the OC in respect of the Unit.
Clause No. 10 — Possession
Clause No. 10.1 — Subject to the Purchaser not being in breach of any of the terms thereof, and the Purchaser having paid all the dues and amounts thereunder, including the total consideration, the Company shall endeavour to provide the Unit to the Purchaser on or before the estimated DOP.
Clause No. 10.2 — The Purchaser shall make full payment of all amounts payable under this Agreement within 15 (fifteen) days of the Company intimating him, in writing, that the Unit is ready for possession (Possession Demand Letter), and shall thereafter take possession of the Unit. In the event the Purchaser fails and/or neglects to take possession of the Unit within 2 (two) months from the date of the Possession Demand Letter, the Purchaser shall be liable to pay demurrage charges to the Company at the rate of INR 10/- per square foot of Net Area per month or part thereof, from the expiry of the aforementioned 2 (two) month period till such time the Purchaser takes possession of the Unit. The amounts payable by the Purchaser pursuant to this Clause 10.2 shall be in addition to the CAM Charges. Notwithstanding the aforesaid, it shall be deemed that the Purchaser has taken possession of the Unit on the expiry of 2 (two) months from the date of the Possession Demand Letter, and the Purchaser shall alone be responsible/liable in respect of any loss or damage that may be caused to the Unit after this date.
A perusal of the aforementioned clauses evinces the fact that the date mentioned in Annexure-6 was on an 'endeavour' basis, implying that it was on a 'best-effort basis' and not binding. Therefore, the date mentioned in Annexure-6 was not a definitive date for handover of possession, since it was qualified to be on an "endeavour" basis at several places in the ATS.
Q.BECAUSE, Clause 1.19 of the ATS shows that the date mentioned at Annexure-6 was an estimated date, and further establishes that the date of offer of possession shall mean the date on which the Appellant issues written communication stating that the Flat is ready for possession, along with the OC, i.e., the Possession Demand Letter.
R.BECAUSE, Clauses 10.1 and 10.2 of the ATS establish that the date mentioned at Annexure-6 is an estimated date. It is further submitted that the complainant shall not be entitled to possession if the complainant is in breach of any of the terms of the Agreement, and until and unless the complainant pays the entire amount mentioned in the payment schedule of the Agreement.
S.BECAUSE, in the instant case, the complainant defaulted on the terms of the Agreement and delayed in paying the amounts as per the payment schedule. It is further submitted that, despite continuous follow-ups and reminders, the complainant failed to make the payment. The Appellant was constrained to issue the final notice before termination letter.
T.BECAUSE, it can clearly be inferred from the provisions of Clause 1.19 read with Clauses 10.1 and 10.2 of the Agreement that the date of offer of possession was the date on which the Appellant issued the possession demand letter, namely Date of possession demand letter, wherein the Complainant was requested to make the payment on or before Payment due date. However, the Complainant failed to make the payment in terms of the Possession Demand Letter. It is further submitted that the Complainant made the payment only after a few months, and possession was accordingly handed over on Date of handing over possession, within the prescribed timelines. Hence, it is abundantly clear that there was no delay in handing over possession.
U.BECAUSE, the allegation pertaining to uncertified snags is false and baseless. It is further submitted that the Complainant did not come forward to accept possession, as the Complainant appeared to be more interested in seeking compensation from the Appellant on false and baseless grounds. It is submitted that the Complainant inspected the Unit and highlighted a few minor snags, and refused to accept possession on false and baseless grounds. It is further submitted that the snags highlighted by the Complainant were duly rectified, and pictures of the rectified snags were shared with the Complainant; however, to the Appellants' shock and surprise, instead of accepting possession, the Complainant, with malafide intentions, raised an additional request, due to which the Appellant was utterly dismayed. The Complainant, instead of accepting possession, raised issues on false and baseless grounds and kept demanding absurd, false and illegal compensation on the ground of alleged delayed possession. It is further submitted that the Complainant thereafter took possession of the rectified Unit with her eyes wide open, signed the possession handover letter, and waived her right to raise any objections. It is further submitted that despite all the snags having been rectified and the possession letter having been signed, the Complainant has filed the present Complaint and demanded absurd, false and illegal interest/compensation on the ground of alleged delayed possession. It is abundantly clear that the sole intention of the Complainant was to unjustly enrich herself through such payment. It is further submitted that the Complainant is attempting to achieve, by adopting such unlawful tactics, what is presumably unjustified financial gain, and which may well be unrelated to the Agreement or the Unit. Hence, the Complaint deserves to be dismissed.
V.BECAUSE, in 1994 (I) CPR 182 — Director, Himachal Institute of Engineering & Technology Vs. Anil Kumar Gupta, it has been held that: "The Party to be awarded compensation has not only to show deficiency in service but also negligence of the other Party and without the finding of negligence, there cannot be any award."
W.BECAUSE, the Complainant is misusing the provisions of the Consumer Protection Act in respect of a matter in which the Complaint filed by the Complainant is devoid of any merits. The Appellants therefore submit before this Hon'ble Commission that such practice ought to be discouraged, particularly in the present case, where the Complainant, while accepting possession, agreed that they had no complaint, grievance or claims of any nature whatsoever against the Appellant in respect of the said Flat, under the said Agreement or otherwise, and that the right to raise such grievances/claims shall be deemed to have been waived; and yet, despite the same, the Complainant is seeking compensation as more particularly mentioned in the prayer clause of the Complaint. The Appellant states that the compensation claimed by the Complainant is absolutely unjustified. The Appellant states that the present case is a fit case wherein the Complainant is using the Hon'ble Commission as a tool to extort money from the Appellant.
X.BECAUSE, the Ld. State Commission has failed to appreciate the various judgments filed by the Appellants in support of their submissions.
14.That the Appellants are constrained to file the present Appeal before this Hon'ble Commission, and the Appellant craves the liberty of this Hon'ble Commission to add, alter, modify or amend the grounds during the pendency of this First Appeal, if necessary.
15.That the Appellants are constrained to file the above First Appeal before this Hon'ble Commission, as they have no other efficacious remedy available, and the matter is of grave and immense urgency and significance.
NON-FILING PARA
16.The Appellants state that they have not filed a similar First Appeal or any other petition before this Hon'ble Commission or any other Court(s) involving the subject matter of this Appeal, which is either pending or has been disposed of.
17.This Hon'ble Commission has the jurisdiction to entertain the present First Appeal.
18.This First Appeal is made bona fide and in the interest of justice.
19.That the annexures filed with the First Appeal are true copies of the respective originals, and a separate certificate as per the rules is also appended herewith alongside the present Appeal.
PRAYER
In the facts and circumstances stated above, it is most respectfully prayed that this Hon'ble Commission may be pleased to issue appropriate orders and directions as set out below:
A.In the facts and circumstances of the case, it is respectfully prayed that this Hon'ble Commission may kindly be pleased to call for the records of the matter titled "Respondent/complainant's name Versus First appellant company name in case title & Developers Pvt. Ltd. & Anr.", being Complaint Case No. State commission complaint number, adjudicated by the State commission name; and
B.Set aside the impugned Order/Judgment dated Date of the impugned order as passed in the matter titled "Respondent/complainant's name Versus First appellant company name in case title & Developers Pvt. Ltd. & Anr.", being Complaint Case No. State commission complaint number, adjudicated by the State commission name; and
C.Pass such other order or orders as may be deemed fit and proper in the facts and circumstances of the case.
APPELLANTS
THROUGH
Filed by:
Place: Place of filing
Dated: Date of filing
Law firm name (Law Firm)
ADVOCATES
Address:
Email: Law firm's email address
Mob: Law firm's mobile number
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF Year of filing of the appeal
(Against the Order passed by the State commission name in C.C. No. State commission complaint number with year)
IN THE MATTER OF:-
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
AFFIDAVIT IN SUPPORT OF THE FIRST APPEAL
I, Deponent's name, aged about Deponent's age years, Authorised Representative of M/s. First appellant company name and Second appellant company name, having address at Appellants' address, do hereby solemnly affirm and declare as under:
1.That I am the Authorised Representative of the Appellants in the above First Appeal and am competent to swear this Affidavit.
2.That I am fully conversant with the facts of the case and have examined all relevant documents and records in relation thereto.
3.That there is no false statement or concealment of any material fact, document or record, and I have included all information which, according to me, is relevant for the present Appeal, the same being based on the records.
4.That all documents in my power, possession, control and custody pertaining to the facts and circumstances of the proceedings have been disclosed, and copies thereof have been annexed with the First Appeal and the Interim Applications.
5.That the Annexures hereto are true copies of the documents referred to and relied upon by me.
6.That I am aware that, for any false statement or concealment, I shall be liable for action taken against me under the law for the time being in force.
DEPONENT
VERIFICATION
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
FIRST APPEAL NO. First appeal number OF 2023
(Against the Order passed by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. State commission complaint number/2020)
IN THE MATTER OF:-
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
AFFIDAVIT IN SUPPORT OF THE INTERIM APPLICATION
I, Deponent's name, aged about Deponent's age years, Authorised Representative of M/s. Appellant company name, having its address at Address of the appellant company, do hereby solemnly affirm and declare as under:
1.That I am the Authorised Representative of the Appellants in the above First Appeal and am competent to swear this Affidavit.
2.That I am fully conversant with the facts of the case and have examined all relevant documents and records in relation thereto.
3.That there is no false statement or concealment of any material fact, document or record, and I have included all information which, according to me, is relevant for the present Appeal, the same being based on the records.
4.That all documents in my power, possession, control and custody pertaining to the facts and circumstances of the proceedings initiated by me have been disclosed, and copies thereof have been annexed with the First Appeal and the Interim Applications.
5.That the Annexures hereto are true copies of the documents referred to and relied upon by me.
6.That I am aware that, for any false statement or concealment, I shall be liable to action taken against me under the law for the time being in force.
DEPONENT
VERIFICATION:
Verified at Place of verification on this Date of verification (day) day of Month and year of verification that the statements made and contained in my above Affidavit are true and correct to my knowledge, and that nothing material is concealed therefrom.
DEPONENT
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
FIRST APPEAL NO. First appeal number OF 2023
(Against the Order passed by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. State commission complaint number/2020)
IN THE MATTER OF:-
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
AFFIDAVIT IN SUPPORT OF THE INTERIM APPLICATION
I, Deponent's name, aged about Deponent's age years, Authorised Representative of M/s. Appellant company name, having its address at Address of the appellant company, do hereby solemnly affirm and declare as under:
1.That I am the Authorised Representative of the Appellants in the above First Appeal and am competent to swear this Affidavit.
2.That I am fully conversant with the facts of the case and have examined all relevant documents and records in relation thereto.
3.That there is no false statement or concealment of any material fact, document or record, and I have included all information which, according to me, is relevant for the present Appeal, the same being based on the records.
4.That all documents in my power, possession, control and custody pertaining to the facts and circumstances of the proceedings initiated by me have been disclosed, and copies thereof have been annexed with the First Appeal and the Interim Applications.
5.That the Annexures hereto are true copies of the documents referred to and relied upon by me.
6.That I am aware that, for any false statement or concealment, I shall be liable to action taken against me under the law for the time being in force.
DEPONENT
VERIFICATION:
Verified at Place of verification on this Date of verification (day) day of Month and year of verification that the statements made and contained in my above Affidavit are true and correct to my knowledge, and that nothing material is concealed therefrom.
DEPONENT