State Consumer Disputes Redressal Commission
Naveen Goel vs Emerging Valley Private Limited on 17 February, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 218 of 2015 Date of Institution : 16.09.2015 Date of Decision : 17.02.2016 Naveen Goel, Sachin Goel, Both residents of Goyal Marble, #21-F, New Model Colony, Ambala City, Haryana. ......Complainants Versus Emerging Valley Private Limited through its Director, Corp.Office - SCO 46-47, First Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh - 160009. .... Opposite Party. Complaint under Section 17 of the Consumer Protection Act, 1986 BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Deepak Aggarwal, Advocate for the complainant.
Sh. Ish Mahajan, Advocate for the Opposite Party. PER DEV RAJ, MEMBER
The facts, in brief, are that the complainants, being residents of the above captioned address, were on a look out for suitable residential plot where they could construct the house on the plot, according to their choice, design and taste. On various assurances, commitments and projections by the Opposite Party, the complainants booked a residential plot admeasuring 200 sq. yards in the project floated by the Opposite Party in the name and style of EMERGING VALLEY located at Landra Banur Road, Mohali, Punjab. The Opposite Party also confirmed booking/allotment of Plot DOC No.304 and receipt of Rs.8,37,000/- as booking amount, against net sale price of the plot i.e. Rs.27,90,000/-, after giving 10% discount on the basic sale price of Rs.31,00,000/-, by writing letter (Annexure C-1).The complainants made a total payment of Rs.26,57,000/-. The Opposite Party vide letter dated 11.01.2012 (Annexure C-3) offered to complainants to buyback the same after two years from the date of draw i.e. 03.12.2011 @Rs.18,000/- per sq. yard. The Opposite Party also committed that the complainants could use this buyback offer, as sure shot profit booking otherwise the sole discretion to accept the offer would remain with the complainants.
2. The complainants approached the Opposite Party for buyback of the unit in January 2014, who told the complainants to give a written request for buyback offer. The complainants gave a written request (Annexure C-4) to the Opposite Party for buyback, which was duly received by the employee sitting at the counter (Annexure C-5). After the said request, the complainants visited at the office of the Opposite Party several times for refund of the deposited amount, now @Rs.18,000/- per sq. yard but the Opposite Party lingered on the matter on one pretext or the other. Some letters were also sent through courier but the Opposite Party did not bother to reply the same. The complainants sent legal notice dated 7.8.2015 (Annexure C-6) to the Opposite Party through registered post but the same was not replied.
3. It was further stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking refund of the total amount of Rs.36,00,000/- alongwith interest @18% per annum w.e.f. January 2014 till realization; pay Rs.10,00,000/- as compensation & punitive damages to the complainants and Rs.1,35,000/- as cost of litigation.
4. The Opposite Party, in its written statement, took up certain preliminary objections to the effect that the complaint is not maintainable since the complainant has not approached this Commission with clean hands; that the present complaint is not maintainable as the same has been filed without verification; that this Commission has no territorial jurisdiction to try and decide the present complaint as the plot, in question, is situated at Banur - Landra Road, District Mohali; that the complaint is not maintainable as the same is filed without verification, which is mandatory provision of law for filing the same.
5. On merits, it was denied that any commitment and assurance was made or given by the Opposite Party. Receipt of an amount of Rs.26,57,000/- has been admitted by the Opposite Party. It was stated that after discount of 10%, the complainants were to make total payment of amount of Rs.27,90,000/- and not Rs.26,57,000/- as alleged. It was further stated that the complainants were bound to accept this proposal and the onus of proving their acceptance by way of documentary evidence is on them. It was stated that none of employees of the Opposite Party ever received and acknowledged any written request. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. The complainants filed replication, wherein, they reiterated all the averments, contained in the complaint and repudiated the same, contained in the written statement of the Opposite Party.
7. The complainants, in support of their case, submitted their separate affidavits, by way of evidence, alongwith which, a number of documents were attached.
8. The Opposite Party, in support of its case, submitted the affidavit of Sh. Sushil Kumar, its Project Manager, by way of evidence, alongwith which, a number of documents were attached.
9. We have heard Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
10. It is evident that the complainant booked and applied for a 200 Sq. Yard Plot, the total price whereof was Rs.31,00,000/- and since the complainants were given discount of 10%, the net sale price of the plot, in question, as per letter dated 25.4.2013 (Page 23 of the file) came to be Rs.26,57,000/-. The complainants made total payment of Rs.26,57,000/-, which fact is proved from the aforesaid letter dated 25.04.2013 and the balance was shown as Nil.
11. As regards the first objection raised by the Opposite Party, in its written statement, that the present complaint is not maintainable as the same has been filed without verification, it may be stated here that in support of their complaint, the complainants have filed their respective affidavits, wherein, under "Verification", they specifically verified the contents of the said affidavit to be true and correct to their knowledge and belief. It has further been verified that no part of it (affidavit) is false and nothing material has been concealed therein. In view of these affidavits, the objection of the Opposite Party that the complaint was not verified, being devoid of any substance, stands rejected.
12. The next question, which falls for consideration, is, whether the complainants are consumers within the meaning of Section 2(1)(d) of the Act or not" The Opposite Party did not take this objection in its written statement but the Counsel during arguments, while placing reliance on the case titled Prithviraj Naryanrao Chavan & another Vs. The National Seeds Corporation Ltd., Revision Petition No.3829 & 3829-A of 2007, decided by Hon'ble National Consumer Disputes Redressal Commission, New Delhi (in short 'Hon'ble National Commission) on 03.01.2012, argued that the complainants are not consumers in view of buyback option exercised by them. In our opinion, the case relied upon by the Counsel is distinguishable on facts. In that case, the Opposite Parties supplied seeds to the complainants on contract basis and after production of seed, the Opposite Parties were to purchase that seed from the complainants as per the rate fixed mutually. In the aforesaid case, the seed production program, was undertaken and foundation seed was supplied to the complainants and the transaction in between the parties was buy back transaction. However, in the instant case, there was no commitment to this effect initially but the buy back offer was offered by the Opposite Party vide letter dated 11.01.2012 (Annexure C-3) of its own without any request to this effect by the complainants and this was apparently done by the Opposite Party to wriggle out of non-execution of agreement, which itself was unfair trade practice and deficiency attributable to the Opposite Party.
13. Contention of Counsel for the Opposite Party that the complainants are not consumers also needs to be rejected, taking note of the judgment of the National commission in case titled as Kavit Ahuja Vs. Shipra Estate Limited and Jai Krishna Estate Developers Private Limited, Consumer Complaint No.137 of 2010, decided on 12.02.2015, wherein the Hon'ble National Commission in Paras 6 and 7 as under:-
"6. Going by the Dictionary meaning of the expression 'Commerce' as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged. In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services. It would ordinarily include activities such as manufacturing, trading or rendering services. In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).
7. Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity."
Thus, the complainants cannot be excluded from the definition of consumer. As such, this objection of the Opposite Party being devoid of merit stands rejected.
14. The next question, which falls for consideration, is, as to whether this Commission has got the territorial jurisdiction to entertain and decide this complaint or not, as the plot, in question, is situated at Banur - Landra Road, District Mohali. It may be stated here that since Booking Confirmation letter (Annexure C-1), Allotment letter ( Annexure C-2 Colly.), letter dated 25.04.2013 showing payment details (Page 23 of the file), Certificate dated 11.01.2012 (Annexure C-3) were issued by the Chandigarh Office of the Opposite Party and further letter dated 7.1.2014 written by the complainants was received by the Chandigarh Office of the Opposite Party (Annexure C-4), cause of action accrued to the complainants within the territorial jurisdiction of U.T. Chandigarh and the present complaint filed before this Commission is maintainable. Therefore, this objection of the Opposite Party being devoid of merit also stand rejected.
15. The next question, which falls for consideration, is, as to what are the terms and conditions of the allotment of plot in question. The complainants have placed on record copy of letter dated 12.5.2012 (Annexure C-2 colly.), 1st Para whereof reads as under:-
"In response to your application, we are pleased to inform you that you have been registered for the PLOT 200 sq. Yd booked by you as per details furnished hereunder. The terms of booking and allotment shall be governed by the terms of Agreement and General Terms and conditions."
The terms of agreement and general terms and conditions, if any, were to be issued by the Opposite Party but the fact is that neither any averment to this effect is made in the written statement nor any document has been placed, on record, by the Opposite Party, meaning thereby that the same were not issued. This itself amounted to deficiency on the part of the Opposite Party. In our opinion, an adverse inference deserves to be drawn against the Opposite Party. Not only this, change of land use was granted by Department of Town and Country Planning, Punjab vide Memo No.2694-STP(S)SS-11(GR) dated 17.09.2013 (Annexure OP-1) much after receipt of Rs.26,57,000/- from the complainants. Thus, at the time of launching the project, the Opposite Party did not have necessary approvals and sanctions.
16. Despite the fact that the complainants made full payment, as admitted by the Opposite Party in receipt dated 25.4.2013, it did not bother to execute any agreement with the complainants. The Opposite Party had issued certificate dated 11.01.2012 (Annexure C-3) to the complainants, whereby it offered to buy back the same (plot) after two years from the date of draw i.e. 03.12.2011, @Rs.18,000/- per sq. yard. When after expiry of two years, the complainants vide their letter dated 07.01.2014 (Annexure C-4) sought refund of the entire amount under buy back option, which was duly received in the office of the Opposite Party, the Opposite Party did not honour its commitment and despite legal notice sent by the complainants, failed to return the promised amount. In our considered opinion, the Opposite Party is liable to refund the promised amount to the complainants alongwith interest @12% per annum from the date, when the complainants requested for refund of the same vide letter dated 7.1.2014 (Annexure C-4). So far as grant of compensation on account of mental agony and physical harassment is concerned, refund of Rs.36,00,000/- against the paid amount of Rs.26,57,000/- and award of interest @12% per annum w.e.f. 7.1.2014 will take care of the same. In our considered opinion, no separate compensation is justified.
17. No other point, was urged, by the Counsel for the parties.
18. For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-
To pay the amount Rs.36,00,000/-, to the complainants, alongwith interest @ 12% per annum, w.e.f. 7.1.2014, when the complainants requested for refund vide letter (Annexure C-4), within two months, from the date of receipt of a certified copy of this order.
To pay cost of litigation, to the tune of Rs.50,000/- to the complainants, within a period of two months, from the date of receipt of a certified copy of this order.
In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Party shall be liable to pay the amount mentioned in Clause (i) with interest @15 % P.A., instead of 12% P.A., from the date of default till realization, and interest @12% P.A., on the amount mentioned in Clause (ii), from the date of default, till realization.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion.
Pronounced.
February 17, 2016.
[JUSTICE JASBIR SINGH (RETD.)] [PRESIDENT] [DEV RAJ] MEMBER (PADMA PANDEY) MEMBER