C. Viswanath ORDER
C. Viswanath, (Presiding Member)
1. The present Appeal is filed by the Appellant under Section 19 of the Consumer Protection Act, 1986 against Order passed by the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the "State Commission") in CC No. 1450 of 2016 dated 04.01.2017.
2. In the Complaint case, it was stated that Appellant/Complainant booked two units (one for himself and his wife and the other for his children) bearing No. C-1117 and C-1217 in Block-C in Commercial Complex project named "Conscient One" which was to come up at Sector-109, Gurgaon (Haryana) from the Respondents/Opposite Parties. The Appellant paid Rs. 5 Lakhs each for the said units. On 20.07.2013 and 14.10.2013, Respondents sent demand letter for payment of Rs. 5,47,423/- each. On 15.10.2013, the Appellant paid Rs. 5,88,897/- for each flat and paid a total sum of Rs. 33,73,484/- for both the units till 15.10.2013. On 24.03.2015 after about two years, the Respondents sent Buyers Agreement to the Appellant to sign the same. In clause 8.3 of the Buyers Agreement, it was stated that duration of handing over the possession was 42 months with grace period of additional six months from the date of execution of agreement i.e. from 24 May, 2015. The specific understanding was conveyed to the Appellant that completion would be done within 36 months from the date of acceptance of advance. The Appellant signed the Buyers Agreement and sent it back to the Respondents, under duress. The Respondent sent demand letter dated 09.04.2013 for Rs. 2,32,237/- each. The Respondents sent letter dated 06.04.2016 asking for next instalment of Rs. 5,50,811/- per unit. With no hope of getting the units on time, the Appellant sent a legal notice dated 23 May, 2016 for cancellation of booking and refund of the deposited amount, alongwith interest @18% per annum but with no response from the Respondents. Hence, the Complaint was filed.
3. The State Commission, vide order dated 04.01.2017, dismissed the Complaint at admission stage on the ground that the Appellant had himself mentioned that the Agreement provided for delivery of possession within 42 months with grace period of six months from date of execution of the Agreement. The Agreement bears the date 24.08.2015. Hence, the Appellant cannot seek possession before 24.08.2019. The Complaint filed in 2016 was premature. Secondly, it was also mentioned that the Respondents were to design, construct, promote market, own, sell, receive consideration and transfer Retail Units/Office Spaces/Units/Restaurants/Food Court Units etc. in the aforesaid Commercial Complex. The Appellant tried to twist the same by mentioning that it was for residential purpose. Office space was not covered under Consumer Protection Act and the Appellant did not make any averment that he booked the same for earning livelihood by self-employment.
4. Being aggrieved by the order passed by the State Commission, the present Appeal has been filed before this Commission on the following grounds:
5. The State Commission had not appreciated the fact that the Appellant had already made substantial amount of payments to the Respondents. Under the threat of forfeiting the entire payments made by the Appellant, he had signed the Agreement under duress and the same cannot be held against him which was contrary to law.
6. The State Commission failed to take into account that in a catena of judgments, the Hon'ble Apex Court and this Hon'ble Commission had laid down that strict rules of evidence were not to be followed in Consumer Cases and even otherwise the Appellant cannot be put to disadvantage for being compelled to sign a document by the Respondent.
7. The Appellant categorically stated that the said units purchased were for his own personal residence and were not for any commercial purpose whatsoever and the same cannot be interpreted against the Appellant.
8. The State Commission erred in not appreciating that since the property in question were "service apartments" they could be constructed as part of a larger commercial structure and the same did not amount to making the said service apartments as commercial units.
9. A very large number of persons actually reside in service apartments to utilize their conveniences and services and the same cannot be treated as a commercial investment.
10. The State Commission erred in not appreciating that the Hon'ble Apex Court has in a catena of judgments held that under the Consumer Protection Act, 1986, principle of justice ought to be followed.
11. The State Commission erred in not following the principles of natural justice when passing the impugned order.
12. Heard the Learned Counsel for the Appellant as well as Learned Counsel for Respondent No. 1 and 2. They reiterated their respective contentions as stated above. Respondent No. 3 has already been proceeded ex-parte. I have also carefully gone through the evidence placed on record.
13. The Appellant relied on this Commission's judgment in "Satish Kumar Pandey and Ors. v. Unitech Ltd.", where it was held that that it is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms.
14. The Respondents relied on the following judgments:
15. In Priti Arora v. M/s. ARN Infrastructure India Pvt. Ltd., MANU/CF/0212/2017, this Commission held, that complainant is not a consumer as she does not have locus standi to file the Consumer Complaint.
16. In M/s. BTM Industries Ltd. v. New India Assurance Co. Ltd. Divisional Office, MANU/CF/0008/2016, in which this Commission held that it is settled proposition of law that a person approaching the Court for redressal of his grievance must place all the relevant facts before the Court clearly, candidly and frankly without any reservation even if those facts were against him. If the person approaching the Court does not disclose all the material facts fairly and truly or states them in distorted manner or otherwise tries to mislead the court, the court has inherent power to proceed further with the examination of the case on merits. The Court/Tribunal certainly has to take into consideration the conduct of the party which invokes its jurisdiction and if it finds that the litigant tried to mislead or hoodwink, it must necessarily prevent him from abusing its process by refusing to hear him on merits of the case. Such a person, by his very conduct, disentitles himself from getting any relief from the court even if its otherwise made out on merits.
17. M/s. Sri Sarbati Steel Tubes Ltd. v. Oriental Insurance Co. Ltd. MANU/CF/0686/2013, this Commission held that since the complainant/appellant did not approach the State Commission with clean hands and rather tried to mislead it, it is not entitled to any relief whatsoever.
18. The State Commission has clearly stated in its order that agreement executed between the parties itself provides for delivery of possession within 42 months with grace period of six months from date of execution of agreement i.e. from the date of 24.08.2015. The Appellant has not produced any evidence to show that the Agreement was signed under duress.
19. In my view, the Appellant should wait till 24.08.2019. If the Respondents do not handover the possession of both the units by then, cause of action would arise for filing a case before an appropriate Court/Fora. The First Appeal is dismissed and the order passed by the State Commission is affirmed. There shall be no order as to costs.
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