Last Updated on July 7, 2021 by Satish Mishra
This post covers SBP SHINESTAR Pvt. LTD Consumer Complaint judgment wherein the complaint got dismissed by the commission on ground of maintainability as complainant has filed complaints before other fora’s as well. In consumer law two parallel remedies cannot be availed for the same issue.
NEERAJ SARMAI v. SBP SHINESTAR Pvt. LTD
COMPLAINANT:
Neeraj Sarmai
RESPONDENT:
SBP Shinestar Pvt. Ltd
CORUM:
Hon’ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member
FACTS:
The complainant had approached the opposite party through its employees with the proposal to buy a flat in a residential project namely SBP Homes Gardenia. After getting attracted with the advertisement and representation, the complainant agreed to purchase a 3BHK flat in the said project. At the time of booking, it was told to the complainant that the project is RERA approved and having all the approvals from the competent authorities. The basic sale price of the apartment was fixed as Rs.42,84,852/-. At the time of booking, the complainant paid Rs. 50,000/- by swapping the card and gave two cheques amounting to Rs. 50,000/- and Rs. 4,00,000/-. On 7.01.2019, when the complainant visited the office of opposite party to verify the RERA Registration Number, he was asked to deposit another payment first. The complainant later came to know from the website that the opposite party is not RERA approved. When the complainant visited the opposite of the opposite party and asked to show the RERA registration documents, they failed to show. The complainant, thereafter, immediately stopped the payment of another cheque amounting to Rs. 4,00,000/-. The complainant dated 18.01.2019 asked the opposite party for refund of his deposited amount. thereafter, on 24.01.2019, a welcome letter was received by the complainant from opposite party. the complainant was surprised that once the party party had already been informed for the refund of amount then why the opposite party sent the welcome letter.
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On 14.02.2019, the complainant received a demand letter from the opposite party and thereafter on 26.02.2019, the opposite party sent the cancellation latter to the complainant. The complainant came to know that the opposite party is not registered under RERA. Under Section 3 of RERA Act 2017, no promoter shall advertise, market, book, sell or offer for sale or invite persons to purchase in any manner any plot, apartment or building. The opposite party had violated the provisions of RERA Act, 2017. Alleging deficiency in service and unfair trade practice on the part of the opposite party, the complainant filed complaint seeking relief.
DEFENCE OF THE OPPOSITE PARTY:
The opposite party raised the objection that since no agreement to sell / contract was ever executed between the parties and there exists no relation of consumer and service provider as contemplated in the Act. The complainant was required to adhere to the terms and conditions of the booking form, including entering into the agreement to sell while releasing the balance of payments. At the time of booking, the complainant himself stated that he is not end-user of the property and just an investor. The payments made so by the complainant remained to be irregular / delayed/ short, therefore, the opposite party was constrained to issue notice dated 26.02.2019 intimating the complainant about the rejection of his application form. The complainant was made aware about the actual and factual position at the time of booking the apartment. Rest all the averments as averred by the complainant in his complaint has been denied and prayed for dismissal of the complaint with costs.
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JUDGEMENT:
The preliminary objection of the opposite party that the flat had been purchased by the complainant for investment purposes to earn profits, has not been proved by the opposite party and simple assertion in this regard in the reply of the opposite party is not sufficient to prove this fact. It was held by the Hon’ble National Commission in the case of M/s Ireo Fiveriver Pvt. Ltd v. Surinder Kumar Singla & Others, that the complainants are consumers, after observing that the appellant had failed to show any cogent evidence, which may indicate that the respondent or complainant or any of them have been indulging in sale purchases of the properties or that the complainant or anyone of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case, there is no evidence led by the opposite party to prove that the complainant indulged in sale or purchase of properties that he had purchased the flat, in question, for further sale of earning profits. The said objection of the opposite party is rejected and they complainant is held to be a consumer, under the Act.
The complainant is availing two parallel remedies simultaneously for the same issue which is certainly objectionable and cannot be permitted to the complainant. If it is so, then his then this conduct of the complainant to open two fronts to challenge the action of the opposite party deserves to be deprecated. The conduct of the complainant is nothing but only and abuse of the process of the court which cannot be permitted by the Commission. In the New India Assurance Co. ltd. case it was held that when a case is pending in a court in which full evidence is to be recorded the forums constituted under the Consumer Protection Act should not entertain the complaint with respect to the same cause of action.
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Respondent is entitled to prove his claim before the arbitrator by leading evidence whereas proceedings before state Commission where to be disposed summarily. Once respondent participated in proceedings before the arbitrator for the same relief, proceedings for similar relief could not have been initiated before the State Commission and the State Commission committed error in holding that both proceedings may go simultaneously.
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In the present complaint,the complainant has not even disclosed this issue that he has already filed a complaint before the RERA authorities neither in the pleadings of the complaint nor stated at the time of arguments. By hiding true and material facts of the case it cannot be said that the complaint has approached this Commission with clean hands. Therfore, the complainant does not deserve any kind of release from this Commission. This kind of complaint should have been dismissed with costs.
For case specific advice, please contact TOP Best Expert RERA Consumer Lawyers in Chandigarh Panchkula Mohali Kharar Derabassi Zirakpur etc.
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