State Consumer Disputes Redressal Commission
Raman Kumar vs C And C Towers Ltd. on 20 March, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
SECTOR 37-A, CHANDIGARH.
Consumer Complaint No. 122 of 2016
Date of institution : 21.04.2016
Date of decision : 20.03.2017
Raman Kumar S/o Sh. Ram Lal R/o House No. 371/A, Jaswant
Nagar, Garha Road, Jalandhar, Punjab.
....Complainant
Versus
1. C&C Towers Limited through its Managing Director, ISBT
Cum Commercial Complex, Opp. Verka Milk Plant, Phase VI,
Mohali, Punjab.
2. The Managing Director, C&C Towers Limited, ISBT Cum
Commercial Complex, Opp. Verka Milk Plant, Phase VI, Mohali,
Punjab. (Give up vide order dated 26.8.2016)
3. CVS Seghal, GM Commercial, C&C Towers Limited, ISBT
cum Commercial Complex, Opp. Verka Milk Plant, Phase VI,
Mohali, Punjab.
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
Consumer Complaint No. 122 of 2016 2
Present:-
For the complainant : Sh. Daljit Singh, Advocate for
Sh. Satish Kumar, Advocate
For opposite parties No.1&3: Sh. Kabir Sareen, Advocate
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 (for short the Act) against the opposite parties on the averments that the complainant in order to earn his livelihood was in search of shop/space for his business and accordingly, an option was with the complainant to buy a shop/space with Ops. It has been further stated that the complainant is working with M/s Richi Travels at Jalandhar and has no other source of income to earn his livelihood. After buying a shop/space, he will use it to earn his livelihood by way of self employment. It has been further stated that earlier this space was allotted to Sh. Raj Kumar Guleria s/o Sh. Roshan Lal, r/o H. No. 1403, Gali No. 114, Gurbax Colony, Patiala and Karam Chand s/o Prem Chand r/o H. No. 14-B, Rattan Nagar, Patiala i.e. Unit No. 3, Block/Tower C & C Capital, Floor 10th, Super Area 619 sq. ft. On initial payment of Rs. 7 Lacs for out of total sale consideration of Rs. 34,04,500/-, the complainant purchased the abovesaid site after making payment of Rs. 7 Lacs to Raj Kumar Guleria and Karam Singh and moved an application for transfer of the site in favour of the complainant on 2.9.2010. On 2.9.2010, Ops issued Consumer Complaint No. 122 of 2016 3 fresh allotment letter in his name after receiving a sum of Rs. 4,91,575/-. Thereafter, complainant visited the office of Ops to update himself with regard to the said ISBT-cum-Commercial Complex. It was still under construction, although the possession was to be handed over within 30 months from 15.12.2009. After numerous meetings and telephone calls with officials of the Ops, they did not disclose the status and development of the site. Ops are enjoying the payment made by the complainant for the past more than 5 years but no sign of delivery of possession, which amounts to unfair trade practice and deficiency in service on the part of Ops. Accordingly, the complaint was filed before this Commission with the following directions to Ops:-
(i) To handover the possession of the above stated agreed site and receive the balance consideration amount i.e. Rs. 22,12,925/- from the complainant as per the allotment letter dt. 2.9.2010 within a reasonable time period as this Hon'ble Commission deems fit.
OR In the alternative, if in the eventuality, Ops are unable to provide the complainant with the possession of the agreed site within reasonable time then the Ops be directed to pay/refund Rs. 23,89,107/- (i.e. the total amount paid by the complainant Rs. 7,00,000/- and 4,91,575/- along with interest thereon @ 18% p.a. amounting to Rs. 11,97,532/-) plus interest @ 18% p.a. pendete-lite till its realization;
Consumer Complaint No. 122 of 2016 4
(ii) To pay sum of Rs. 10,00,000/- on account of mental agony, trauma and harassment suffered by the complainant and Rs. 55,000/- towards costs of litigation.
OR
(iii) To pass any other orders or directions which this Hon'ble Forum may deem fit and appropriate in the present circumstances of the case.
2. Complaint was contested by Op Nos. 1 & 3 whereas Op No. 2 was given up by the counsel for the complainant vide order dated 26.8.2016. Op No. 1 in its reply took the preliminary objections that the complainant has demanded a sum of Rs. 10 Lacs as compensation just to get the pecuniary jurisdiction of this Commission; complainant failed to disclose that he was allotted a commercial space part and parcel of entirely commercial in nature, which has been booked by the complainant solely to earn profit, therefore, it is an investment and the complainant does not come within the definition of consumer as defined under the Act; the complainant had paid a sum of Rs. 11,91,575/- just 35% of the basic sale price and a sum of Rs. 22,12,925/- is still outstanding against the said construction linked plan. On merits, it was again reiterated that the site in question allotted to the complainant is commercial in nature located in a commercial complex, therefore, the complainant does not come within the definition of the consumer. Although as per the agreement, the possession was to be delivered within 30 months from 15.12.2009 but it is strange that Consumer Complaint No. 122 of 2016 5 the complainant has failed to raise any grievance for the last so many years. It was again reiterated that out of the total amount, only a sum of Rs. 11,91,575/- was received. The complaint is not maintainable according to the terms of the agreement and in the case of refund, some amounts are required to be forfeited as per Clause No. 1.2.3 and Clause No. 1.3.5 of the agreement. The complaint is without merit, it be dismissed.
3. Op No. 3 has filed the written reply almost on the same lines as filed by Op No. 1, therefore, the pleas raised by Op No. 1 referred above be also taken on behalf of Op No. 3.
4. The parties were given time to lead their respective evidence. The complainant had tendered his affidavit Ex. CW-1/A alongwith documents Exs. C-1 to C-5. On the other hand, Op Nos. 1 & 3 had tendered in evidence affidavit of Yash Pal Dua as Ex. Op-1/A, affidavit of CVS Sehgal, G.M. Commercial Ex. Op-1/B and documents Exs. Op-1 & 2.
5. We have heard the counsel for the complainant as well as counsel for Op No. 1 & 3 and have carefully gone through the averments made in the complaint and written reply filed by Ops, evidence and documents on the record.
6. The first point raised by the counsel for the Ops is that the complainant does not fall within the definition of the consumer as defined under Section 2(1)(d) of the Act. Since the complainant has availed the construction services from Ops, therefore, Section 2(1)(d)(ii) of the Act will be applicable, which is reproduced as below:-
Consumer Complaint No. 122 of 2016 6
"(d) "consumer" means any person who--
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;"
According to this definition, in case any services have been taken for commercial purposes are not covered under the definition of the 'consumer', however, in case the services have been availed to earn the livelihood for self employment then those services are covered under this Act for commercial properties as well.
7. In case we go through the complaint filed by the complainant, complainant has specifically stated in para No. 3 of the complaint that he is presently doing job in M/s Richi Travels at Consumer Complaint No. 122 of 2016 7 Jalandhar and his no other source of income or any kind of business. Having a dream to earn livelihood, independently and individually, he was in search of buying a shop/space for himself, doing his job, accordingly, shop/space was booked by the complainant to earn his livelihood by way of self employment, therefore, these averments in para No. 3 of the complaint, complete the ingredients as defined in the explanation annexed under Section 2(1)(d)(ii) of the Act. To support this preposition, he has referred the judgment passed by the Chandigarh State Consumer Disputes Redressal Commission, U.T. Chandigarh reported in 2015(4) CLT 116 "Ramanjit Kaur Batth & Others versus The Shalimar Estates Pvt. Ltd. & others". In that case, the complainant had booked one showroom in the shopping mall of Ops to earn their livelihood by way of self employment. No contrary evidence was produced by the Op. Even no evidence was produced by the Ops that complainants are engaged in the sale and purchase of commercial property with an intention to gain huge profit. No evidence was produced by Ops that complainants were running any other commercial activity on a large scale, accordingly, the plea of the Ops that the complainants did not fall within the definition of consumer was held devoid of merits. Whereas the counsel for the Ops has relied upon Consumer Complaint No. 124 of 2016 "Harbhajan Singh versus Municipal Corporation, Ludhiana", decided on 11.5.2016 by the Principal Bench of this Commission, Consumer Complaint No. 69 of 2015 "M/s Kay Kay Enterprises versus M/s DLF Universal Ltd.", decided on Consumer Complaint No. 122 of 2016 8 04.10.2016 by the 2nd Additional Bench of this Commission, Consumer Complaint No. 123 of 2013 "Manmohan Singh versus M/s Ansal Properties and Infrastructure Limited and others", decided on 12.2.2015 by the Principal Bench of this Commission, Consumer Complaint No. 52 of 2015 "Rajinder Singh Toor versus Bajwa Developers Ltd. & Anr.", decided on 3.6.2015 by this Principal Bench of this Commission and 2015(3) CPR 53 (NC) "Rohit Chaudhary & Anr. Versus M/s Vipul Ltd.". In case we go through the judgment in Consumer Complaint No. 124 of 2016 "Harbhajan Singh versus Municipal Corporation, Ludhiana"
(supra). In that case, the complainant had not alleged in the complaint that he had purchased the properly exclusively for the purpose of earning his livelihood by way of self employment in order to take the benefit of the explanation appended to Section 2(1)(d) of the Act. In Consumer Complaint No. 69 of 2015 "M/s Kay Kay Enterprises versus M/s DLF Universal Ltd." (supra), the complainants were already doing their business at Jammu. In that situation, it was held that in case they were already doing their business at Jammu then the booking of the commercial space with Op may be for investment purposes. In Consumer Complaint No. 123 of 2013 "Manmohan Singh versus M/s Ansal Properties and Infrastructure Limited and others" (supra), it was held that the complainants were big land owners and were carrying on other business. Accordingly, it was held that booking of the commercial site with Op was for investment purpose. In Consumer Complaint No. 52 of 2015 "Rajinder Singh Toor versus Bajwa Developers Consumer Complaint No. 122 of 2016 9 Ltd. & Anr." The complaint was dismissed at the admission stage that shop cum office is a commercial property. In 2015(3) CPR 53 (NC) "Rohit Chaudhary & Anr. Versus M/s Vipul Ltd." (supra), it was observed that in order to take benefit of the explanation appended to Section 2(1)(d) of the Act, the complainant is required to establish that services availed by him were exclusively for the purpose of earning his livelihood by way of self employment. In that case, the complainant was already running his livelihood from his business, therefore, it cannot be said that he had booked the commercial space only for the purpose of earning livelihood by way of self employment. Therefore, each case is to be assessed on the basis of facts of that case. In the present case, the complainant is not running any business, he is just an employee with M/s Richi Travels at Jalandhar and after getting shop/space, he wants to run his independent business to earn his livelihood by way of self employment. This fact has not been denied by Ops. Ops have not led any evidence that he is running any other business to earn his livelihood. Nobody can be debarred to run his own business.
Counsel for the Op also failed to rebut the judgment passed by the Chandigarh State Consumer Disputes Redressal Commission, U.T. Chandigarh reported in 2015(4) CLT 116 "Ramanjit Kaur Batth & Others versus The Shalimar Estates Pvt. Ltd. & others". According to that judgment, in the present case also, Ops have failed to lead any evidence that the complainant is engaged in the sale and purchase of commercial property with an intention to gain huge profit. No evidence that complainant is running any commercial Consumer Complaint No. 122 of 2016 10 activity, therefore, the plea taken by the Ops that the present space was booked by the complainant was for commercial purposes is devoid of merit and cannot be accepted. We hold that the complainant is a consumer as defined under explanation appended to Section 2(1)(d) of the Act.
8. As per the pleadings of the parties, commercial space i.e. Unit No. 3, Block/Tower C & C Capital, Floor 10th, Super Area 619 sq. ft. was originally booked in the name of Raj Kumar Guleria s/o Sh. Roshan Lal, r/o H. No. 1403, Gali No. 114, Gurbax Colony, Patiala and Karam Chand s/o Prem Chand r/o H. No. 14-B, Rattan Nagar, Patiala. The complainant entered into an agreement for transfer of this space in his favour. They had already paid a sum of Rs. 7 Lacs to the ops. This fact was not denied by them. After transfer letter of allotment (Ex. C-2) was issued in favour of the complainant on 2.9.2010. According to this allotment letter's Clause No. 1.3.5, the construction of the unit is likely to be completed within 30 months from the date of start of lease period. The date of the lease period has not been explained by the parties. At the most, it can be from the date of letter of allotment. In case this day is taken then 30 months will be completed by 1.2.2013. As per the complainant, the complainant apart from Rs. 7 Lacs had also paid a sum of Rs. 4,91,575/- vide demand draft Ex. C-3 dated 30.8.2010. This payment has also been admitted by Ops. As per the agreement Ex. C-2, the remaining payment was to be paid according to the level of the construction as referred in Annexure- B, which reads as under:-
Consumer Complaint No. 122 of 2016 11
At the time of booking 20% At the time of Allotment 15% Instl. 1 on Start of First Floor slab 7.5% Instl. 2 on Start of First Floor slab 7.5% Instl. 3 on Start of 3rd Floor slab 7.5% Instl. 4 on Start of 6th Floor slab 7.5% Instl. 5 on Start of 9th Floor slab 7.5% Instl. 6 on Start of 12th Floor slab 7.5%
Instl. 7 on installation of plumbing and electrical 7.5% Instl. 8 on laying of Electric Cable in front of the 7.5% plot * Instl. 10 At the time of offer of possession 05% + any other statutory charges as applicable There is no letter on behalf of the Ops that they had demanded the payment, which was not paid by the complainant. Therefore, it cannot be said that the complainant is the defaulter. In case the Ops have failed to deliver the possession within the stipulated time as per the agreement then it amounts to unfair trade practice as well as deficiency in services. A reference has been given to I (2017) CPJ 222 (NC) "G.S. Kapoor & Anr. Versus Unitech Ltd.". In that case, booking of residential flat by Op but construction not started and non-delivery of possession, it amounts to unfair trade practice and deficiency in service. It was directed to refund the amount received from the complainant alongwith interest @ 12% p.a. Consumer Complaint No. 122 of 2016 12
9. However, the Ops in their written reply have referred to Clause No. 1.2.3 and 1.3.5. For ready reference, these Clauses are referred as under:-
"1.2.3 In case the Buyer, at any time, requests for cancellation of the Allotment, the Transferor shall have the option to accept such request in which case Buyer shall be entitled to refund of 50% of all amounts paid by the Buyer towards Cost of Unit till the date of request, without any interest and in full and final settlement of all inter-se claims in this behalf, and the said sum shall be refunded by the Transferor within 3 (Three) months of such request, failing which, Transferor shall be liable to pay Buyer simple interest @6% per annum on the outstanding amount, from the due date uptill payment.
1.3.5 The construction of the said Unit is likely to be completed in 30 months from the date of start of lease period, after all necessary approvals and sanctions have been obtained, subject however, to force majeure circumstances and reasons beyond the control of the Transferor. In case, the Transferor for reasons other than mentioned hereinabove, delays in handing over possession of the said Unit, to the Buyer, on or before 30 months from the date of start of lease period, the Transferor shall pay to the Buyer, simple interest @ 6% per annum on the amount advanced by the Buyer, for the period of delay beyond 30 months. However, the Transferor shall not be liable in case the delay Consumer Complaint No. 122 of 2016 13 is not due to any fault of the Transferor. If the completion of the said Unit is delayed by reason of non-availability of steel and/or cement or other building material or water supply or electric power or slow down strike or due to a dispute with the construction agency employed by the Transferor, lock-out or civil commotion or any militant action or by reason of war or enemy action or earthquake or any act of god or if non- delivery of possession is a result of any act, notice order, rule or notification of the Government and/or any other public or competent authority or for any other reason beyond the control of the Transferor or delay in the sanction of plans/grant of completion/occupation certificate by the Competent Authority and in any of the aforesaid events, the Transferor shall be entitled to a reasonable extension of time for delivery of possession of the said Unit. The Transferor, as a result of such a contingency arising, reserves the right to alter or vary the terms and conditions of this Allotment Letter or if the circumstances beyond the control of the Transferor so warrant, the Transferor may suspend work on the Project Site for such period as it may consider expedient and no compensation of any nature whatsoever can be claimed by the Buyer for the period of suspension of work on the Project Site. In consequence of the Transferor abandoning the Project Site, the Transferor's liability shall be limited to the refund of the amount paid by the Buyer towards Cost of Unit Consumer Complaint No. 122 of 2016 14 with simple interest @ 6% per annum and the Buyer shall not be entitled to any other compensation whatsoever."
10. Clause 1.2.3 deals with the cancellation of the allotment at the instance of the buyer. The buyer never requested for cancellation of the allotment, therefore, this Clause is not applicable to the complainant. According to this Clause, in case the space is not completed within 30 months as referred in the agreement then beyond the period of 30 months, the buyer shall be entitled to interest @ 6% p.a. According to Clause 1.2.1, in case there is delay on the part of the buyer to make timely installment then he is liable to pay interest @ 2% per mensem i.e. 24%, therefore, the Clause in the agreement is prejudicial to the interest of the buyer. In case the Ops will receive interest @ 24% per annum, to be just and reasonable, the Ops should pay interest @ 12% p.a. in the case of refund.
11. Counsel for the Ops was unable to explain how the construction was not completed within the stipulated time. Therefore, we accept the complaint and directed the Ops as under:-
(i) deliver the possession of Unit No. 3, Block/Tower C & C Capital, Floor 10th, Super Area 619 sq. ft., complete in all respect after getting the completion certificate from the competent authority to the complainant within a period of three months from the date of receipt of the copy of the order passed by this Commission;Consumer Complaint No. 122 of 2016 15
(ii) in case the possession is not delivered within the period referred in Clause No. (i) then Ops are directed to refund a sum of Rs. 11,97,532/- to the complainant alongwith interest @ 12% p.a. from the date of receipt of the payment till the date of refund; and
(iii) Pay Rs. 50,000/- as compensation for mental and physical harassment;
(iv) Pay Rs. 21,000/- as litigation expenses.
12. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
13. Order be communicated to the parties as per rules.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (GURCHARAN SINGH SARAN) JUDICIAL MEMBER March 20, 2017.
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