BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF Year of the first appeal and interlocutory applications.
(Against the Order passed by the Hon'ble Name of the State Consumer Disputes Redressal Commission in C.C. No. Consumer complaint number (State Commission))
IN THE MATTER OF:-
Case caption / matter title
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
WITH
I.A. No. I.A. number (stay application): AN APPLICATION FOR STAY OF THE IMPUGNED ORDER/JUDGMENT.
I.A. No. I.A. number (exemption application): AN APPLICATION SEEKING EXEMPTION FROM FILING DIM / LEGIBLE / TYPED COPIES OF ANNEXURES.
PAPERBOOK
(KINDLY SEE INSIDE FOR INDEX)
**Appellants' nameAdvocate's name**
Through
Advocate's name
Advocates for the Appellants
Mob.: Advocate's mobile number E-Mail: Advocate's e-mail address
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF Year of the first appeal and interlocutory applications.
(Against the Order passed by the Hon'ble Name of the State Consumer Disputes Redressal Commission in C.C. No. Consumer complaint number (State Commission))
IN THE MATTER OF:-
Case caption / matter title
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. I.A. number (stay application) of Year of the first appeal and interlocutory applications — An Application for Stay of the Impugned Order/Judgment of the Ld. Lower Commission, along with affidavit. | |
| 6. | I.A. No. I.A. number (exemption application) of Year of the first appeal and interlocutory applications — An Application seeking exemption from filing dim/legible/typed copies of annexures, along with affidavit. | |
| 7. | Impugned Order dated Date of impugned order passed by the Ld. Name of the State Consumer Disputes Redressal Commission in C.C. No. Consumer complaint number (State Commission). | |
| 8. | ANNEXURE A-1 (colly.) — Copy of the Consumer Complaint No. Consumer complaint number (State Commission) filed under Section 47(1)(a)(i) of the Consumer Protection Act, 1986 before the Ld. State Commission 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 (State Commission) before the Ld. State Commission, 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 (State Commission) before the Ld. State Commission. | |
| 11. | ANNEXURE A-4 — Copy of the Evidence Affidavit of the Respondent in Complaint No. Consumer complaint number (State Commission) before the Ld. State Commission. | |
| 12. | ANNEXURE A-5 — Copy of the Evidence Affidavit of the Appellants in Complaint No. Consumer complaint number (State Commission) before the Ld. State Commission. | |
| 13. | ANNEXURE A-6 — Copy of the written submissions/arguments filed by the Respondent in Complaint No. Consumer complaint number (State Commission) before the Ld. State Commission. | |
| 14. | ANNEXURE A-7 — Copy of the written submissions/arguments filed by the Appellants in Complaint No. Consumer complaint number (State Commission) before the Ld. State Commission. | |
DELHIAPPELLANTS
DATED: Date of filingTHROUGH
Advocate's name
ADVOCATES
Email: Advocate's e-mail address
Mob: Advocate's mobile number
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF Year of the first appeal and interlocutory applications.
(Against the Order passed by the Hon'ble Name of the State Consumer Disputes Redressal Commission in C.C. No. Consumer complaint number (State Commission))
IN THE MATTER OF:-
Case caption / matter title
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
MEMO OF PARTIES
**1. Appellants' name: APPELLANTS**
VERSUS
**Respondent's name: RESPONDENT**
DELHIAPPELLANTS
DATED: Date of filingTHROUGH
Advocate's name
ADVOCATES
Email: Advocate's e-mail address
Mob: Advocate's mobile number
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF Year of the first appeal and interlocutory applications.
(Against the Order passed by the Hon'ble Name of the State Consumer Disputes Redressal Commission in C.C. No. Consumer complaint number (State Commission))
IN THE MATTER OF:-
Case caption / matter title
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 OF THE 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 that they may 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 they 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 stand, 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 aforesaid documents 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 be passed.
It is prayed accordingly.
DELHIAPPELLANTS
DATED:THROUGH
Advocate's name
ADVOCATES
Email: Advocate's e-mail address
Mob: Advocate's mobile number
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF Year of the first appeal and interlocutory applications.
(Against the Order passed by the Hon'ble Name of the State Consumer Disputes Redressal Commission in C.C. No. Consumer complaint number (State Commission))
IN THE MATTER OF:-
Case caption / matter title
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 PASSED BY THE LD. Name of the State Consumer Disputes Redressal Commission IN CONSUMER COMPLAINT NO. Consumer complaint number (State Commission) 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 passed by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad, in Consumer Case No. Consumer complaint number (State Commission), seeking an order from this Hon'ble Commission to set aside the order as passed by the Hon'ble Gujarat State Consumer Disputes Redressal Commission in Consumer Case No. Consumer complaint number (Gujarat State Commission) in the matter titled as Respondent's name Versus Appellants' company name (in cited matter), being the impugned order dated Date of impugned order.
3.That the Appellants have a prima facie good case on merits. The balance of convenience heavily lies in favour of the Appellants. The Appellants have every likelihood of succeeding before this Hon'ble Commission. The Appellants shall suffer irreparable loss and injury in case the stay over the impugned order dated Date of impugned order passed by the Ld. State Commission, Hyderabad in C.C. No. Consumer complaint number (State Commission) is not granted by this Hon'ble Commission; no subsequent order will be able to compensate the Appellants for such loss. If the present application is allowed, no prejudice will be caused to the Respondent.
4.That the present application has been moved bonafide 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 passed by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad, in Consumer Case No. Consumer complaint number (State Commission) in the matter titled as Respondent's name Versus Appellants' company name (in cited matter), in the interest of justice.
Any other order or orders as may be deemed fit and proper in the facts and circumstances of the case may also be passed.
It is, therefore, most respectfully prayed accordingly.
DELHIAPPELLANTS
DATEDTHROUGH
Date of filing
ADVOCATES
Email: -------------------------
Mob: -------------------
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 Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. Consumer complaint number (State Commission))
IN THE MATTER OF:-
Case caption / matter title
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
CERTIFICATE
Certified that the Undersigned has filed certified/attested true copies of:
(i)The order(s) passed by the State Commission, Hyderabad;
(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 Appellant.
DELHIAPPELLANTS
THROUGH
DATED
ADVOCATES
Email: ----------------------------------
Mob: ------------------------------
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 Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. Consumer complaint number (State Commission))
IN THE MATTER OF:-
----------------------: APPELLANTS
VERSUS
Respondent's name
-------------------: RESPONDENT
FIRST APPEAL UNDER SECTION 51 OF THE CONSUMER PROTECTION ACT, 1986 ON BEHALF OF THE APPELLANTS AS NAMED ABOVE, INTER ALIA SEEKING NECESSARY ORDER FROM THIS HON'BLE COMMISSION TO SET ASIDE THE ORDER AS PASSED BY THE HON'BLE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HYDERABAD, IN THE MATTER TITLED AS "Respondent's name VERSUS Appellants' company name (in cited matter)", IN CONSUMER CASE NO. Consumer complaint number (State Commission).
TO,
THE HON'BLE THE PRESIDENT OF THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AND THE HON'BLE MEMBERS OF THE NATIONAL 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 as filed before this Hon'ble Commission, are seeking an order from this Hon'ble Commission to set aside the order as passed by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad, in Consumer Case No. Consumer complaint number (State Commission) in the matter titled as Respondent's name Versus Appellants' company name (in cited matter) (hereinafter referred to as the "Impugned Order") dated Date of impugned order. The certified copy of the impugned order was read on Date of reading certified copy of impugned order, and the same was delivered on Date of delivery of impugned order.
2.It is the case of the Respondent/Complainant that the Respondent is an IT professional and purchased residential Unit number at Project locality name in the project floated by the Appellants by entering into an agreement of sale dated Date of agreement of sale, which was registered on Date of registration of agreement for a consideration of Rs. 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 also the first instalment, but finally prepared the same and got it executed on Date of execution of agreement; that on Date of email informing unit readiness itself, the Respondent received an email informing that the unit was ready for registration; that when the Respondent was leaving for Destination country Respondent was travelling to, the Appellants assured the Respondent that they would complete the unit in all respects and intimate the Respondent about the same; that the Respondent appointed a GPA to complete the remaining process; that on Date of email informing registration completed, the Respondent received an email stating that the registration had been completed; that the Respondent paid the total consideration in the middle of Month of payment of total consideration itself and requested completion of the registration at the earliest, but no interest was evinced by the Appellants; that finally the registration was completed on Date of completion of registration owing to the persistent efforts made by the Respondent, as alleged.
3.It is further stated that vide letter dated Date of late payment charges letter, the Appellants levied late payment charges to the tune of Rs. Late payment charges (₹)/-, out of which Rs. Interest component of charges (₹)/- was towards interest and Rs. Administrative charges (₹)/- was towards administrative charges, although there was no fault on the part of the Respondent; that after prolonged struggle, the Appellants waived the late payment charges at the time of registration; that on Date of visit to unit, when the Respondent visited the unit, the Respondent found it to be incomplete and the issues were communicated to the Appellants seeking repairs, but the standard answer every time was that the issues had been fixed; that vexed by their attitude, the Respondent even offered to get the issues rectified at the Respondent's own cost, to be reimbursed by the Appellants, but there was no response to the same; that owing to the acts of the Appellants, the handing over of possession was delayed; that on Date of legal notice, a legal notice was issued to the Appellants demanding payment of compensation, in reply to which a reply notice dated Date of reply notice was received from the counsel of the Appellants stating that he was awaiting instructions; that in those circumstances, the Respondent was forced to take possession of the unit on Date of taking possession with many unaddressed issues; that on Date of grievance email, the Respondent sent an email expressing the grievance, but there was no response thereto; that in Month/year of repairs carried out, the Respondent got the issues rectified at the Respondent's own cost by engaging the services of Contractor/interiors firm name 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 therein sought relief in the form of a direction to the Appellants to pay Rs. Repair costs claimed (₹)/- towards the costs incurred by the Complainant to rectify the issues, to pay Rs. Rent loss claimed (₹)/- towards loss of rent for six months due to the delay in delivery of possession, to pay interest @ 18% p.a. on the said amounts from the date of handover of the flat till the date of payment, to pay compensation of Rs. Compensation for mental agony claimed (₹)/- for the mental agony suffered by the Complainant, and costs of Rs. Costs claimed (₹)/-.
4.That after receipt of the notice, the Appellants filed their written reply to the Complaint before the Ld. State Commission, wherein it was submitted that, in respect of its residential portfolio, the Appellants' company name has a presence across multiple price points, with Unit values ranging from Rupees Lower unit price point (₹ million) million to Rupees Upper unit price point (₹ 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 As-on date for company profile, the Appellants' company name had Number of ongoing projects ongoing projects, of which Number of projects in India projects are in India and two are in London. These projects account for a developable area of Developable area (million sq ft) million square feet, of which Developable area in location (million sq ft) million square feet represents projects located in the Location name. As of September Year (as of September), the Appellants' company name had Number of planned projects planned projects in India with a developable area of Planned developable area (million sq ft) million square feet, of which Planned area in location (million sq ft) million square feet is located in the Location name. Given its large-scale operations and the delivery of innumerable homes through a customer-centric business model, the remarkable progress and excellent reputation of the Appellants' company name are conspicuous, and accordingly, the Complainant's attempt to paint an unscrupulous image of the Appellant is absolutely misplaced and unfounded. The Appellants' company name is synonymous with developing iconic structures in Mumbai as well as with bringing renowned global names such as Global brand name 1 and Global brand name 2 to the country.
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 are contrary to and/or inconsistent with what is stated hereinafter. The Complaint of the Complainant is misconceived and has been filed only with a mala fide intention to harass the Appellants and to extort money from them. It is submitted that the Complainant purchased residential Unit No. Unit number, Burlingame, in the Project name Project by entering into an Agreement of Sale dated Date of agreement of sale, and the same was registered vide Registered Sale Deed dated Date of registered sale deed.
6.It is further submitted that the Agreement to Sell was executed in time, when the Complainant had duly paid the requisite amounts to the Appellants. It is submitted that the Complainant herself, in her email dated Date of complainant's email on late payment, had explained her late payment and the reasons thereof. The Appellants seek to produce the copy of the email dated Date of email to be produced in evidence at the time of evidence. It is further submitted that the Appellants sent a letter for overdue payment dated Date of overdue payment letter to the Complainant, showing a total of Rs. Total overdue amount (₹)/- (Rs. Amount in figures (₹)/-). It is further submitted that a Final Notice before Termination was also issued to the Complainant on Date of final notice before termination; 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 in respect of Unit No. Unit number was intimated to the Complainant. As on that date, the total consideration was Rs. Total consideration (₹)/- and the amount received from the Complainant was Rs. Amount received from complainant (₹)/- (Amount received in words/figures). The amount forfeited was Rs. Forfeited amount (₹)/- (Forfeited amount in words/figures) and the refund amount was Rs. Refund amount (₹)/- (Refund amount in words/figures).
7.It is further submitted that the Complainant did not pay the remainder of the total sale consideration by the middle of June 2018, although the Termination of Allotment had already been issued on Date of termination of allotment (cited).
8.It is further submitted that all issues were addressed at the time of the handover of possession. It is further 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 demonstrates that there was no delay or defect attributable to the Appellants. It is thus submitted that the Complainant was able to utilise the unit or deal with it as she deemed fit.
10.It is further submitted that the invoices annexed by the Complainant appear to be estimates and not genuine invoices, and the Complainant's Advocate has made comments on the invoices, which is highly unusual, as invoices never contain an advocate's comments. It is further submitted that the invoices do not bear the stamp of the company, which demonstrates that the invoices are not authentic but are false and baseless pieces of paper. Even otherwise, all the snags were rectified prior to the 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 through affidavits. Upon completion of the pleadings and evidence, the Counsel for both Parties argued the matter, and the order was reserved.
13.That on Date of State Commission order, the Ld. State Commission held that the complaint was partly allowed, with joint and several liability fastened on the Appellants No. 1 and 2, with costs of Rs. Costs awarded (₹)/-, by directing them to pay Rs. Amount directed to be paid (₹)/- with interest @ 12% per annum from Date from which interest is payable till the date of actual payment, besides compensation of Rs. Compensation awarded (₹)/-. As a result thereof, the Impugned Order was passed, which is now challenged before this Hon'ble Commission on the following grounds.
GROUNDS
A.BECAUSE, the Complainant evinced interest in the booking of the said Flat and, by a written application form, applied 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 forum 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 has booked more than one unit of residential premises, the purchase of apartments amounts to a booking of such premises for investment/commercial purposes, the Complainant is not a consumer, and the complaint is not maintainable.
The said authority also referred to another case, Chilkuri Adarsh Vs. ESS VEE Constructions, III (2012) CPJ 315, wherein also it was held, as under:-
B) "The arguments advanced by the learned Counsel have been duly considered. However, we are of the view that the complaint as presented cannot be maintained before a Consumer Fora such as ours, since the agreement was for the construction of two showrooms, which admittedly relate to a commercial purpose, and the complainant, therefore, does not fall within the definition of a 'consumer' under Section 2(l)(d) of the Consumer Protection Act, 1986. This has been the consistent view of this Commission. It has been held that even where a consumer has booked more than one unit of residential premises, such booking amounts to a booking of such premises for investment or commercial purposes. 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. The complaint was accordingly disposed of 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. 6030-6031 of 2008, filed before the Supreme Court, stands dismissed vide the Apex Court's order dated 29.09.2008".
B.BECAUSE, in the case at hand, though the Complainants have their existing residence as mentioned in the said Agreement, they booked the said Flat; it is manifest, therefore, that the Complainants availed of 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 Complainants, vide their email dated Date of complainant's email admitting intention to rent, admitted that they wished to earn profit by renting out the unit, which makes it abundantly clear that the Complainants purchased the said unit for commercial purposes alone. It is submitted that the Complainants are, therefore, not entitled to invoke the jurisdiction of the Ld. Commission for the redressal of their grievances. The Appellant submits that the Captioned Complaint is nothing but an attempt to misuse the process of the Ld. Commission with the sole object of enriching themselves through illegal means, and the same is, therefore, liable to be set aside.
D.BECAUSE, the limitation for the cause of action of the Complainants has expired and the matter is delayed beyond 31 days, as per their 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 early Month/year complainant approached to purchase, the Complainants approached the Respondent to purchase Flat No. Flat number in a building called Burlingame ("said Building") situated in the said Project name/location, Hyderabad ("said Flat"). Accordingly, on Date of agreement to sell, the parties executed the Agreement to Sell ("Agreement").
F.BECAUSE, the Complainants, vide possession letter dated Date of possession letter, have 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, took the keys thereof, and confirmed that they had physically inspected the said Flat and found all amenities and areas, as per the terms of the said Agreement, and 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, under the said Agreement or otherwise.
G.BECAUSE, the Complainants, after going through all the terms and conditions, accepting the same and satisfying themselves, signed and acknowledged the Possession Letter dated Date of possession acknowledgment letter in respect of the said Flat. The Appellant states that in the said letter dated Date of possession acknowledgment letter, the Complainants confirmed 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 or precondition and without 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 Flat 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 Date of order of State Commission (cited case) passed by the Hon'ble State Commission in C.C. No. Consumer complaint number (cited case), filed by Complainant's name (cited case) versus Company name (cited case) 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 a possession acknowledgment letter on Date of possession acknowledgment (cited case) and thereafter perhaps maintained silence until she wrote, on Date of first complaint about delay (cited case), to the Opponent for the first time raising concerns about the delayed possession, to which a reply was received from the Opponent dated Date of reply from opposite party (cited case). The Appellant states that in the said case, the Hon'ble State Commission pertinently concluded that the complainant was now seeking to go beyond her possession acknowledgment letter dated Date of possession acknowledgment letter. The Hon'ble State Commission also rightly pointed out that if the complainant wished to do so, it would require a detailed inquiry and the recording of lengthy evidence, and such an exercise is perhaps not expected in the summary inquiry of a consumer complaint.
J.BECAUSE, in a recent judgment dated Date of judgment (Andhra Pradesh State Commission) in Consumer Complaint No. Consumer complaint number (AP cited case), the Hon'ble Andhra Pradesh State Commission likewise came to the conclusion that once a complainant accepts possession without raising any objection, he is not entitled to any relief in connection with allegations of compensation. In connection therewith, the Hon'ble Andhra Pradesh State Commission observed: "However, the complainant occupied the said flat in the month of Month of occupation of flat (cited case). Further, according to the Opposite Party, a letter was executed on Date of Ex. B2 letter 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 Ex. B2 letter 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 things. 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 Month of cited order date, Year of cited order date was challenged by the complainant therein before the Hon'ble National Commission by filing First Appeal No. First appeal number (cited case) of Year of cited first appeal, and the same was dismissed as withdrawn by the appellant therein. In these circumstances, the order dated Date of order in cited complaint passed in Consumer Complaint No. Consumer complaint number (cited case) has attained finality.
K.BECAUSE, in a recent judgment dated Date of judgment (Maharashtra State Commission) passed by the Hon'ble Maharashtra State Commission in Consumer Complaint No. Consumer complaint number (Maharashtra cited case) between Complainant's name (cited case) Vs. Opposite party's name (cited case), in an identical matter wherein the complainant had sought compensation for delay in handing over possession of the villa booked by him, while he had already taken possession of the said villa and had also signed a letter containing a waiver clause, this Hon'ble State Commission observed at Point No. [5] as follows:
"[5] .. The 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.
The Andhra Pradesh State Commission, in Complaint No. 61 of 2013, Vinod Daralc Vs. M/s. Lodha Healthy Constructions and Developers Pvt. Ltd, decided in similar circumstances, interpreting a similar clause in the letter of possession issued by the builder, held the clause to be optional in nature, and mandatory if accepted.
The letter dated 09/11/2011 addressed to the Complainant by the Opponent and served upon the Complainant stipulates a covenant of waiver of claims. The clause in the letter reads 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. Consumer complaint number (cited case) of Year of cited complaint, observing that the Complainant failed to establish that any deficiency in service had been 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, no fact arises 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 aforementioned Smt. Complainant's name (Smt., cited case) and Second complainant's name (cited case) case and in Case name/number (cited case). No cause of action exists in the present matter, and the Complaint is therefore 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 ago. It is submitted that, since the Complainant herself delayed the payments required to be made to the Appellant, the Appellants were compelled to delay the process of preparing the Agreement to Sell. There was accordingly no delay on the part of the Appellants in getting the Agreement to Sell and the Sale Deed signed. As soon as the entire balance consideration for the Unit was paid, the Appellants prepared the Agreement and had it executed. Accordingly, upon payment of the remaining balance consideration, the Sale Deed was executed in Month of sale deed execution Year of sale deed execution. 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 sale deed executed between the parties, and there is no cause of action for filing the present Complaint on account of delay in executing the Agreement to Sell.
O.BECAUSE, the Appellant states that it had issued several demand letters from time to time calling upon the Complainant to make the payments as per the payment schedule of the said Agreement. However, the Complainant delayed making payment at 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, whereupon the Appellant was constrained to issue the final notice before termination dated Date of final notice before termination. 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 are annexed. The Appellant shall place several other demand letters, interest letters and e-mails on record at the time of evidence.
P.BECAUSE, it is first 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 handing over 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 endeavor 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 Number of days for payment (Number in words) 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 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 Demurrage rate (₹ per sq ft per month)/- per square foot of Net Area per month or part thereof, from the expiry of the aforementioned 2 (two) month period until such time as 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 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 such date.
A perusal of the aforementioned clauses evinces the fact that the date mentioned in Annexure-6 was on an 'endeavor' 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 "endeavor" 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 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 present case, it is the Complainant who defaulted on the terms of the Agreement and delayed payment as per the payment schedule. It is further submitted that, despite continuous follow-ups and reminders, the Complainant failed to make the payment, and the Appellant was consequently constrained to issue a final notice before the termination letter.
T.BECAUSE, it can clearly be inferred that, as per the provisions of Clause 1.19 and 10.1 read with Clause 10.2 of the Agreement, the date of offer of possession was the date on which the Appellant issued the possession demand letter, which was issued on Date of possession demand letter, calling upon the Complainant to make the payment on or before Deadline date for payment. However, the Complainant failed to make the payment as per 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. It is therefore abundantly clear that there was no delay in handing over possession.
U.BECAUSE, the allegation pertaining to the uncertified snags is false and baseless. It is further submitted that the Complainant did not come forward to accept possession, as she appeared to be more interested in seeking compensation from the Appellant on false and baseless grounds. 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 photographs of the rectified snags were shared with the Complainant; however, to the Appellant's shock and surprise, instead of accepting possession, the Complainant, with mala fide intentions, raised additional requests, on account of 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 later took possession of the rectified Unit with her eyes wide open, signed the possession handover letter, and waived her right to raise objections. It is further submitted that, despite all snags having been rectified and the possession letter having been signed, the Complainant filed the 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, by adopting these unlawful tactics, is presumably seeking unjustified financial gains 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, especially in the present case, where the Complainant, while accepting possession, agreed that she 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 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 this Hon'ble Commission as a tool to extort money from the Appellant.
X.BECAUSE, the Ld. State Commission 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, 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 pending or has been disposed of.
17.That this Hon'ble Commission has the jurisdiction to entertain the present First Appeal.
18.That 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 their 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 pass appropriate orders and directions as set out hereinbelow:
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 as "Respondent's name Versus Appellants' company name (in cited matter)", being Complaint Case No. Complaint case number of Year of complaint case, adjudicated by the Hon'ble Name of the State Consumer Disputes Redressal Commission; and
B.Set aside the impugned Order/Judgment dated Date of impugned order as passed in the matter titled as "Respondent's name Versus Appellants' company name (in cited matter)", being Complaint Case No. Complaint case number of Year of complaint case, adjudicated by the Hon'ble Name of the State Consumer Disputes Redressal Commission;
C.Pass such other order or orders as this Hon'ble Commission may deem fit and proper in the circumstances of the case.
APPELLANTS
THROUGH
Filed by:
Place: New Delhi
Dated: Date of filing
Law firm name Advocate's name
ADVOCATES
Email: Advocate's email
Mob: Advocate's mobile number
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO. First appeal number OF Year of the first appeal and interlocutory applications
(Against the Order passed by the Hon'ble Name of the State Consumer Disputes Redressal Commission in C.C. No. Consumer complaint number (State Commission))
IN THE MATTER OF:
Case caption / matter title
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
AFFIDAVIT IN SUPPORT OF THE FIRST APPEAL
I, Name of deponent / authorised representative, aged about Age of deponent years, Authorised Representative of M/s. Company name (appellants), Office/building name (company address), Company address city and pincode, do hereby solemnly affirm and declare as under:
1.I state that I am the Authorised Representative of the Appellants in the above First Appeal and am competent to swear this Affidavit.
2.I am fully conversant with the facts of the case and have examined all relevant documents and records pertaining thereto.
3.I state that there is no false statement or concealment of any material fact, document or record, and that I have included all information which, to my knowledge and based on the records, is relevant for the present Appeal.
4.I state 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.I state that the Annexures hereto are true copies of the documents referred to and relied upon by me.
6.I say that I am aware that, for any false statement or concealment of facts, I shall be liable to action taken against me under the law for the time being in force.
DEPONENT
VERIFICATION:
Verified at City where the affidavit is verified on this Date of verification of affidavit 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 belief and nothing material is concealed therefrom.
DEPONENT
BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO.First appeal number OF Year of the first appeal and interlocutory applications.
(Against the Order passed by the Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. Consumer complaint number (State Commission))
IN THE MATTER OF:-
Case caption / matter title
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
AFFIDAVIT IN SUPPORT OF THE INTERIM APPLICATION
I, Name of the deponent, aged about Age of the deponent years, Authorised Representative of M/s. Company name (appellants), having its office at Building name (company address), Street address line 1, Street address line 2, Mumbai – PIN code of the deponent's office address, do hereby solemnly affirm and declare as under:
1.I say that I am the Authorised Representative of the Appellants in the above First Appeal and am competent to swear this Affidavit.
2.I am fully conversant with the facts of the case and have also examined all relevant documents and records in relation thereto.
3.I say 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 records.
4.I say 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.I state that the Annexures hereto are true copies of the documents referred to and relied upon by me.
6.I say that I am aware that, for any false statement or concealment of facts, I shall be liable to action taken against me under the law for the time being in force.
DEPONENT
VERIFICATION:
Verified at City where the affidavit is verified on this Date of verification of affidavit 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 belief and nothing material is concealed therefrom.
DEPONENT
BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AT NEW DELHI
FIRST APPEAL NO.First appeal number OF Year of the first appeal and interlocutory applications.
(Against the Order passed by the Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. Consumer complaint number (State Commission))
IN THE MATTER OF:-
Case caption / matter title
Appellants' name: APPELLANTS
VERSUS
Respondent's name: RESPONDENT
AFFIDAVIT IN SUPPORT OF THE INTERIM APPLICATION
I, Name of the deponent, aged about Age of the deponent years, Authorised Representative of M/s. Company name (appellants), having its office at Building name (company address), Street address (Mahalaxmi), Mumbai – PIN code of the deponent's office address, do hereby solemnly affirm and declare as under:
1.I say that I am the Authorised Representative of the Appellants in the above First Appeal and am competent to swear this Affidavit.
2.I am fully conversant with the facts of the case and have also examined all relevant documents and records in relation thereto.
3.I say 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 records.
4.I say 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.I state that the Annexures hereto are true copies of the documents referred to and relied upon by me.
6.I say that I am aware that, for any false statement or concealment of facts, I shall be liable to action taken against me under the law for the time being in force.
DEPONENT
VERIFICATION:
Verified at City where the affidavit is verified on this Date of verification of affidavit 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 belief and nothing material is concealed therefrom.
DEPONENT