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M/s Purusharath Builders Pvt. Ltd. vs. M/s Uppal Housing Ltd. & Ors dated 2012-07-05


M/s Purusharath Builders Pvt. Ltd.
108, Ansal Bhawan, 16,
K.G. Marg, New Delhi-110 001
Through its Authorized Representative
Mr. Narendra Kumar Jain
1. M/s Uppal Housing Ltd.
    Plaza M-6, 1st Floor,
    District Centre,
    Jasola, New Delhi-110 076
2.  Umang Realtech (P)Ltd (JV)
     1st Floor, The Great Easter Centre
     70, Nehru Place
     New Delhi-110 019
For the Petitioner                        :                        Mr. S.P. Kalra, Sr.Advocate with
                                      Mr. Rajiv Kapoor, Advocate
Pronounced on :   5th July, 2012
1.     The facts germane to the abovesaid Complaint are as follows.  On 08.04.2006, the complainant, M/s Purusharath Builders Pvt. Ltd. booked a Pent House measuring 3200 sq. ft. for a consideration of Rs. 23,74,560/- from the opposite parties.  The opposite parties assured the complainant that the Pent House would be handed over by June, 2008.  The opposite parties took time for getting permission from MCD but there was no construction activity on the sight till 03.10.2007.  The opposite parties were asked to return the money alongwith interest @ 18% on the amount deposited by the complainant.  The opposite parties put off the matter on one protest or the other. Vide their letter dated 13.08.2008, it was represented that sanctions as required had still not received.  There was lot of correspondence between the parties.  The opposite parties sent a copy of the approval of building plans from MCD dated 13.08.2009 and the complainant was informed that the project would be launched within 2-3 months.  Several requests were made to the opposite parties to do the needful but the opposite parties waddled out of their commitment.
2.     M/s Uppal Housing Ltd., Opposite Party-1, wrote a letter to the complainant on 16.07.2011, wherein for the first time, it informed the complainant of its having formed the JV with another company of USA and had changed its name as M/s Umang Realth Pvt. Ltd. Opposite Party-2. It called upon the complainant to get in touch with them and execute the agreement besides finalizing the apartments for the compliance and depositing allotment of due amount.  In the meantime, the complainant met Commander J.S. Jerry, In charge of the Opposite parties on 26.07.2011, who informed that the project had commenced and the work of 1st and 2nd basement is in progress. Commander J.S. Jerry also informed them that the opposite parties had decided not to build any Pent House and project would be considering of 2,3 & 4 BHK apartments only and the rates had been revised from earlier Rs. 4,947/- per sq. ft. to Rs. 7,000/- per sq. ft.  But in the case of the complainant the rates would remain the old rates. The area of the complainant was increased from 3200 sq.ft. to 5565 sq.ft. For 3200 sq. ft., the old rates were applicable and for new additional area, new rates were to apply.
3.     The complainant made known its desire of booking 2 or 3 BHK apartments to the opposite parties.  On 15th December 2011, the authorized representative of the Complainant visited once again the office of the Opposite Parties. Commander J.S. Jerry informed him that the 3BHK apartments as desired were available in Tower F on 10th and 12th floor bearing No. 1002 and 1202.  He also represented that two adjoining flats are available in the category of 4 BHK comprising of 2047 area each bearing numbers A-701 and A-702.  The complainant requested the opposite parties to earmark and book the said two 4BHK Apartments and the complainant was willing and ready to pay the charges on the new rates for the difference in area of 894 sq. ft.   Thereafter, the opposite parties refused to allot the above said flats and the complainant informed that the opposite parties can allot only one of these apartments.  The complainant sent a legal notice on 16.01.2012.
4.     On 24.01.2012, the opposite parties published fresh advertisements in the News Papers calling fresh applications and promising the completion of the project by March, 2014. On 06.02.2012, the complainant was informed that 25 to 30 Apartments are available in the category of 4 BHK and 40 to 50 units are available in the category of 3BHK Apartments.  In these circumstances, the present complaint was filed with the following prayers: 
  “ a.        direct the OP not to cancel the booking of the Complainant.
b.   direct the opposite party to allot to the Complainant, two adjoining flats No. A-701, 702 as detailed herein above,
c.    direct the opposite party to compensate the Complainant by paying an amount of Rs. 23,79,415/- on account of interest accrued on the initial booking amount of Rs. 23,74,560/- from the date of booking i.e. 08.04.2006 till the date of start of the construction i.e. 31.10.2011@ Rs. 18% P.A. simple interest,
d.   direct the opposite party not to allot, sell or create any third party right in two adjoining 4 BHK Apartments known as A-701 and A-702,
e.    award cost of the present proceedings to the Complainant,
f.      award an amount of Rs. 50,00,000/- as damages in favour of the Complainant qua the opposite party and/or,
g.   pass any other such order/orders as it may deemed fit and proper in the facts and circumstances of the case, in favour of the Complainant qua the opposite party.”
5.     We have heard the counsel for the complainant at the time of admission of this case.  The attention of the learned counsel for the opposite parties was also invited towards order passed by this Commission on 03.04.2012.  The order is reproduced as follows:-
“After arguing the matter for some time, learned counsel for the complainant seeks to withdraw the present complainant from this Commission with liberty to work out the complainant’s remedy before the appropriate/ competent Court/Forum in accordance with law.”
6.        Learned counsel for the complainant vehemently argued
that there lies no rub in filing the complaint again.  In support of his case, he has cited two authorities which are reported in Jet Ply Wood Pvt. Ltd. & Anr. versus Madhukar Nowlakha & Ors. [II (2006) SLT 518].  The facts were these:
“18.  Mr. Singhvi urged that the owners of the property had resorted to subterfuge to wriggle out of the agreement and had misled the respondent No. 1 into withdrawing the suit and it is on account of such misrepresentation that the respondent No. 1 was entitled in law to have his suit restored.
19.  Mr. Singhvi submitted that it would not be correct to contend that the learned Trial Judge did not have the jurisdiction to withdraw the order passed by him permitting the respondent No.1 to withdraw his suit.  What was relevant was whether in the circumstances such a power should have been exercised or not.  Since the learned Trial Judge had chosen not to exercise such power, the High Court stepped in, in exercise of its powers under Article 227 of the Constitution to restore the suit filed by the respondent No.1.
20.   Mr. Singhvi urged that while dismissing the application filed by Shri Biswarup Banerjee and others recalling the order dated 4th February, 2005, the learned Single Judge of the Calcutta High Court in his order dated 11th March, 2005, had referred to and relied upon a Division Bench judgment of the Calcutta High Court in the case of Rameswar Sarkar v. State of West Bengal & Ors., reported in AIR 1986 Calcutta 19, in support of his order that when through mistake a plaintiff withdraws his suit, the Court is not powerless to set aside such order of dismissal in exercise of inherent powers even if no leave to file a fresh suit had been prayed for.”
It was held that:-
“26.   Based on the aforesaid principle, the Division Bench of the Calcutta High Court, in almost identical circumstances in Rameswar Sarkar’s case, allowed the application for withdrawal of the suit in exercise of inherent powers under Section 151 of the Code of Civil Procedure, upon holding that when through mistake the plaintiff had withdrawn the suit, the Court would not be powerless to set aside the order permitting withdrawal of the suit.
27.          We are of the view that the law having been
correctly stated in the aforesaid case, the learned Single Judge of the Calcutta High Court in making an order on the same lines did not commit any error of jurisdiction which calls for any interference in these appeals.”
7.     The second case is reported in “Rajendra Prasad Gupta versus Prakash Chandra Mishra & Ors. [V(2011) SLT 134”.  It was held that:-
“3.        It appears that the appellant was the plaintiff in Suit No. 1301 of 1997 before the Court of Civil Judge (Junior Division), Varanasi.  He filed an application to withdraw the said suit.  Subsequently, it appears that he changed his mind and before an order could be passed in the withdrawal application he filed an application praying for withdrawal of the earlier withdrawal application.  The second application had been dismissed and that order was upheld by the High Court.  Hence, this appeal by special leave.
5.        Rules of procedure are handmaids of justice.  Section 151 of the Code of Civil Procedure gives inherent powers to the Court to do justice.  That provision has to be interpreted to mean that every procedure is permitted to the Court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless bar in filing an application for withdrawal of the withdrawal application.”
8.     It is thus clear that the above said authorities hardly dovetail with the facts of this case. The facts of these cases are altogether different.  No plea was set up in the complaint as to why the second complaint was filed.  For the first time, the learned counsel for the complainant vehemently argued that the previous counsel was not competent and therefore, he withdrew the previous case.  There is no inking of this fact in the complaint.  No reason was given in the affidavit as to why the complaint was filed for the second time.  Three is no whisper, word or syllable in this regard.
9.  Consequently, we are of the view that leave to file the application before this Commission should have been sought clearly, specifically and unequivocally to file the second complaint on the same ground.  If there was defect in the first complaint, amendment application should have been moved or it should have been specifically stated that the case suffers from certain infirmities and the complainant would file it again after removing the said defects.  Permission cannot be granted to fill up the lacunas at this stage. On the ground the complaint is found to be not maintainable.
10.        However, the key question is whether the complainant is a Consumer?  The learned counsel for the complainant pointed out that they have filed copy of Resolution dated 20.08.2011, which is reproduced as follows:-
PHONES : 011 – 2372 3218 FAX : 011-2372 2538
IN FURTHERANCE TO THE RESOLUTION passed by the Board of Directors in its meeting held on 11-03-2006, the Company had booked one Pent House measuring approximately 3200 sq. ft. with M/s Uppal Housing Pvt. Ltd. in their Project, ‘the Metro Park, Dwarka’ on 08-04-2006.  However, the Project did not pick the pace.
Now, vide letter dated 22nd June, 2011, it has been informed that M/s Uppal Housing Pvt. Ltd. has formed a Joint Venture with Indus Capital Partners LLC, USA and the J.V. is now known as Umang Realtech Pvt. Ltd. and further that the Project Uppal’s Metro Park has been renamed as Winter Hills, Dwarka.
It has further been advised by the said Joint Venture vide the said letter to complete various activities in pursuance to which a meeting was held on 26-07-2011 at the office of Umang Realtech Pvt. Ltd. wherein it was divulged that the Project, as now modified, would not be having any Pent House, instead only 2, 3 and 4 BHK Apartments would be constructed and the Company has been given an Option by the Developer to select any other apartment out of the 2, 3 & 4 BHK Apartments, close to the area of the Pent House which was 3200 sq. ft. approximately and that in case of increase in area, the new rate of Rs.7,000/- per Sq. Ft. would be applicable to the difference in area and the same old rate of Rs.4,947 per Sq. Ft. would be applicable upto 3200 Sq. Ft. area.
RESOLVED THAT the change in the plan of the Project be accepted and ht Company may book any two adjoining 3 BHK Apartments consisting of 1653 sq. ft. each in lieu of the Pent House booked earlier.
FURTHER RESOLVED that in case such adjoining 3 BHK Apartments, are not available, the Company may book any two 4 BHK Apartments consisting of 2047 sq. ft.
FURTHER RESOLVED THAT in either of the cases, the difference of area over and above 3200 sq. ft. be paid @ Rs.7,000/- per sq. ft.
FURHTER RESOLVED THAT Shri Rajesh Agarwal, Director of the Company be and is hereby authorized to take all necessary action and sign all necessary documents/papers for the above purpose.
11.        Learned counsel for the complainant argued that these flats will be used for the officers of the Company.  Learned counsel for the complainant could not deny that those officers would transact the commercial activity.  A bare-look on this Resolution clearly goes to show that these flats would be meant for commercial purposes.
12.   The complaint being not maintainable, is therefore, dismissed. Nothing will debar the complainant to seek remedy before the appropriate Forum as per Law.
     (J. M. MALIK, J)
                                                        (VINAY KUMAR)

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