State Consumer Disputes Redressal Commission
Inderpaul Kaur Bains vs The Shalimar Estates (P) Ltd. on 2 September, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 112 of 2015 Date of Institution : 03.06.2015 Date of Decision : 02.09.2015 Inderpaul Kaur w/o Sh. Harcharan Singh Bains, r/o H.No.277, Indian Express Society, Sector 48-A, Chandigarh presently at r/o H.No.963, Sector 39-A, Chandigarh. ......Complainant V e r s u s 1. The Shalimar Estates Pvt. Ltd., Corp. Office, SCO No.110-111, Sector 8, Chandigarh, presently at The Shalimar Mall, Sector 5, Panchkula. 2. The Managing Director, The Shalimar Estates Pvt. Ltd., Corp. Office, SCO No.110-111, Sector 8, Chandigarh, presently at The Shalimar Mall, Sector 5, Panchkula. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: MR. DEV RAJ, PRESIDING MEMBER
MRS. PADMA PANDEY, MEMBER Argued by:
Sh. Ramandeep Singh Pandher, Advocate for the complainant.
Sh. Jaspreet Singh, Advocate Proxy for Sh. Arun Kumar, Advocate for the Opposite Parties.
PER DEV RAJ, PRESIDING MEMBER The facts, in brief, are that the complainant moved an application for registration for allotment of a commercial showroom, in an upcoming shopping mall to be constructed by the Opposite Parties, in Industrial Area, Mohali. It was stated that the complainant intended to use the said showroom, to earn her livelihood, by way of self-employment. The total price of the showroom was Rs.36,00,000/-. Alongwith the application, the complainant deposited a sum of Rs.3,60,000/-, as required by the Opposite Parties, which was duly acknowledged vide acknowledgment slip dated 17.02.2006 Annexure P-3. The said application was accepted by the Opposite Parties, and acceptance-cum demand letter dated 28.02.2006 Annexure P-4, was issued, in favour of the complainant. The complainant was, thus, allotted a showroom of Category 'C', with super area of 400 square feet. It was further stated that as stipulated in the acceptance-cum-demand letter, the complainant had to pay Rs.23,30,000/- (i.e. around 65% of the total amount of Rs.36 lacs) in five installments. The possession was to be delivered within 2 years, from 28.02.2006. It was further stated that the complainant, in total, deposited a sum of Rs.23,96,800/-, up-to 30.09.2008, with the Opposite Parties, on various dates, which included Rs.23,30,000/- towards the price of the aforesaid showroom and Rs.66,800/- as interest @15% p.a. for delay in installments.
2. The complainant personally visited the office of the Opposite Parties, and sought clarification, from them, about the schedule of completion of the showroom and handing over of the same, to them. It was further stated that, by the stipulated date i.e. 28.02.2008, no progress regarding the construction of showroom, had been made. In the meanwhile, the complainant came to know about a new advertisement, issued by the Opposite Parties, in a reputed newspaper, about the showrooms of the same shopping mall. As per that advertisement, the scheme commenced on 28.11.2006, and closed on 12.12.2006. According to the said advertisement, a new time frame was fixed for handing over the possession by December 2008, instead of February 2008, which was earlier committed by the Opposite Parties.
3. Another advertisement, by the Opposite Parties, regarding the showrooms of the same shopping mall, appeared in a newspaper, in October 2007. As per their advertisement, in the newspaper, it was mentioned that the possession of showrooms would be handed over within the time period of two years i.e. by October 2009. It was further stated that though a period of two years, expired in February 2008, yet there was no sign of any construction, with regard to the showroom, at the site. The complainant sent notice dated 23.05.2015, to the Opposite Parties, seeking refund of the amount deposited, but to no avail. It was further stated that even till the date of filing of the complaint, no progress, in the construction of showrooms, had been made.
4. It was further stated that neither possession was delivered to the complainant up-to 28.02.2008, nor the refund of amount was made. It was further stated that, thus, the Opposite Parties, misled the complainant, that possession of the showroom shall be delivered to her, within two years, from the date of allotment i.e. by February 2008 and fleeced her of her hard earned money, to the tune of Rs.23,96,800/- but failed to abide by the commitment. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.
5. When the grievance of the complainant, 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, directing the Opposite Parties, to refund the amount of Rs.23,96,800/-, alongwith interest @15% P.A. from the respective dates of deposits, till realization; pay compensation, to the tune of Rs.2 lacs, for mental agony and physical harassment; and cost of litigation.
6. The Opposite Parties, put in appearance on 08.07.2015. In their joint written version, they pleaded that the complaint was not maintainable. It was further pleaded that the complainant did not fall within the definition of 'consumer', as she booked the showroom for commercial purpose, for investment purposes. It was further pleaded that the complaint was not maintainable, as an arbitration clause, existed, in the application form, and, in case of any dispute, the matter was to be referred to the Arbitration. It was further pleaded that the complaint involved complicated questions of fact and law, which required examination and cross-examination of the witnesses, by a Civil Court, and, as such, could not be adjudicated upon, by the District Forum, the proceedings, before which, are summary, in nature. It was admitted that the complainant booked the showroom, with the Opposite Parties, and an amount of Rs.23,96,800/-, in all, was deposited by the complainant, towards the price of the showroom. It was also admitted that possession of the showroom was to be delivered, within a period of two years i.e. upto 28.02.2008. It was stated that the completion of project, was delayed, as the other buyers, like the complainant, had not paid the due instalments, due to which, the Opposite Parties suffered a huge loss, as they had to pay penalty/compensation, to various customers, as per Condition No.12 of the application form. It was further stated that construction of the entire 10 storey building, including two basements, had already been completed, by the Opposite Parties. It was further stated that all outer and inner walls, partitions, plasters, base flooring etc. etc., were also completed, and only finishing work and fittings of electrical and air conditioning works, were in progress.
7. It was further stated that, in case of delay, the Opposite Parties were liable to pay damages/penalty/compensation @ Rs.10/- per sq. feet per month, in terms of Condition No.12 of the application form. It was further stated that delay, in the project, was never in the interest of the Opposite Parties. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
8. The complainant, in support of her case, submitted her affidavit, by way of evidence, alongwith which, a number of documents were attached.
9. The Opposite Parties, in support of their case, submitted the affidavit of Mr.R.K. Aggarwal, their Managing Director, by way of evidence.
10. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
11. The first question, that falls for consideration, is, as to whether, the complainant fall within the definition of consumer or not. It may be stated here, that the complainant, in her complaint, in clear-cut terms, stated that she had booked showroom, in question, for using the same, to earn her livelihood, by way of self-employment. This fact was also corroborated by her, through her affidavit, submitted by way of evidence. No evidence was produced by the Opposite Parties, to the contrary, that the showroom, in question, was booked by the complainant, not for the purpose of using the same, to earn her livelihood, by way of self-employment. Even, no evidence was produced by the Opposite Parties, that the complainant is a property dealer and is engaged in the sale and purchase of commercial property, with an intention to gain huge profits. No evidence was also produced by the Opposite Parties, that the complainant was running any other commercial activity, on a large scale, and earning huge profits, therefrom. Further in reply by way of affidavit, filed to the interrogatories served upon Mrs. Inderpaul Kaur Bains (complainant), she has categorically testified that she is a house wife and does not own any business. She further testified that she is B.S.c (Home Science) and is presently unemployed and has no annual income. She has further testified that she is running her expenses from the salary of her husband and is staying in Chandigarh since 1986. She further testified that she owns a plot with 25% construction at Mohali. She has further testified that she is British Passport holder, which she got before her marriage. She further testified that she intended to use the showroom in question to earn her livelihood by way of self-employment. Under these circumstances, by no stretch of imagination, it could be said that the complainant did not fall within the definition of consumer. Such a plea, having been taken by the Opposite Parties, in their written version, therefore, being devoid of merit, must fail, and the same stands rejected.
12. The next question, that arises for consideration, is, as to whether, the complaint under Section 17 of the Consumer Protection Act, is not maintainable, on account of the reason, that an arbitration clause exists in the application form. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is required to be made, which reads as under ;
"3.Act not in derogation of any other law.--
The provisions of their Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the document, aforesaid, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
13. There is, no dispute, about the factum, that the complainant booked a showroom, referred to above, with the Opposite Parties. There is also hardly any dispute that the total amount of Rs.23,96,800/- on various dates, towards the price of showroom and delayed interest, was deposited with the Opposite Parties. As per Condition No.12 of Annexure P-2, possession of the showroom was to be given within two years, from the date of issuance of acceptance-cum-demand letter, subject to force majeure circumstances. It was admitted by the Opposite Parties that the possession was to be delivered, on or before 28.02.2008. Admittedly, possession of the showroom has not even so far been delivered to the complainant. By not delivering possession of the showroom, up-to 28.02.2008, and even till today, the Opposite Parties failed to abide by their commitment. They, thus, fleeced the complainant, of her hard earned money, by making a false promise. The Opposite Parties, could, thus, not only be said to be deficient, in rendering service, but they also indulged into unfair trade practice.
14. No doubt, a period of two years could be extended due to force majeure circumstances. It was for the Opposite Parties, to clearly explain, in the written reply, as to what were those circumstances, which were beyond their control, as a result whereof, the construction could not be completed, in time, and possession could not be delivered by 28.02.2008. In the written reply, the only plea taken up by the Opposite Parties, was to the effect, that other buyers, like the complainant, of the showroom, in the same project, did not make the payment of instalments, in time, as a result whereof, there was delay in the completion of project. No evidence, in this regard was, however, produced by the Opposite Parties. It may be stated here, that the complainant, in this case, has already deposited a huge amount of Rs.23,96,800/-, towards the price of the showroom. When the complainant found that there was no progress, in the construction of project, at the site, it was not obligatory upon her, to pay the remaining instalments, if any, until a firm assurance had been held out to her, that the project would be completed in the very near future. As stated above, till date, neither the project has been completed, nor possession of the showroom has been delivered to the complainant. Since, the Opposite Parties failed to adhere to the terms and conditions, contained in the brochure Annexures P-1 and P-2, they could not blame the complainant, for not making the payment of remaining sale consideration/instalments. The instalments against the price of the showroom, were to be paid, as depicted in Annexure C-4. The complainant paid complete instalments, as per the schedule depicted in Annexure C-4. The Opposite Parties, therefore, failed to prove, any circumstance, beyond their control, due to which the construction was delayed. In Prasad Homes Private Limited Vs. E. Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), no development work was carried out, at the site. Thus, the payment of further installments was stopped by the complainants. It was, under these circumstances, held that the builder could not be allowed to take shelter, under the agreement clause, to usurp the money, deposited by the complainants. It was further held that the builder cannot forfeit the money, paid by the complainants, on account of their own fault, in not carrying out the development work. Ultimately, the National Commission, ordered the refund of amount with interest. The principle of law, laid down, in Prasad Homes Private Limited's case (supra), is fully applicable to the facts of the instant case. It is therefore, held that the plea, referred to above, taken up by the Opposite Parties, in the written reply, therefore, appears to be false. The said plea was taken up by them, just with a view to cover up their lapse, and to deny the refund of amount, claimed by the complainant. The submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same is rejected.
15. The Counsel for the Opposite Parties, submitted that, they were ready to pay compensation @ Rs.10/- per sq. feet, per month of the super area, for the period of delay as per Condition No.12 of the terms and conditions (Annexure P-2) attached to the application form and, as such, the complainant was not entitled to the refund of amount, alongwith interest and compensation. The submission of the Counsel for the Opposite Parties, does not appeal to reason. If compensation of Rs.10/- per sq. feet, per month of the super area, would justify the claim of the complainant, and no further relief is given that would give unnecessary advantage to the Opposite Parties, because they may still neglect to complete construction for a number of years by simply paying Rs.10/- per sq.ft. per month of the super area i.e. Rs.4,000/- per month. The Opposite Parties must be getting very high returns, on the amount of Rs.23,96,800/- which was deposited with them, from time to time, by the complainant, by investing the same, in some business. Even the modest interest @8% p.a., which the Opposite Parties may be earning on Rs.23,96,800/- comes to Rs.15,978/- per month i.e., much more than the amount which they are ready to pay @ Rs.10/- per sq. feet, per month of the super area. This compensation might have been said to be sufficient, in case, the complainant had prayed for delivery of possession of the showroom. No prayer was made for delivery of possession. Even, at the time of arguments, the Counsel for the complainant, in clear-cut terms, submitted that the complainant only claimed refund of the amount, with interest and compensation. The complainant is, thus, entitled to the refund of amount with interest @15% P.A., from the respective dates of deposits.
16. Although, a period of more than seven years from 28.02.2008, the date committed for handing over possession of the showroom, to the complainant, has lapsed, yet the construction is not complete. No doubt, the Counsel for the Opposite Parties, submitted that the construction at the site, was in full swing. However, such a submission of the Counsel for the Opposite Parties, cannot be taken into consideration. Such a plea may be another excuse, on the part of the Opposite Parties, to delay the refund of hard earned money already deposited with them, by the complainant.
17. The complainant, was not only deprived of use of her hard earned money, for a long time, which was deposited with the Opposite Parties, but she also suffered a lot of mental agony and physical harassment, as till date, not even a single penny, has been refunded to her, nor possession of the showroom has been delivered. The complainant shall also not be able to purchase the showroom, like the one, in question, at the same rate at which it was allotted to her. For such physical harassment, mental agony and escalation in the prices of real estate, the complainant is also entitled to compensation. Compensation in the sum of Rs.1,00,000/- if granted, shall meet the ends of justice.
18. No other point, was urged, by the Counsel for the parties.
19. For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:-
(i) The Opposite Parties are directed to refund Rs.23,96,800/-, deposited by the complainant, with interest @ 15% p.a. from the respective dates of deposits onwards.
(ii) The Opposite Parties are further directed to pay compensation, in the sum of Rs.1,00,000/- (Rupees One Lac only), for causing mental agony and physical harassment to the complainant, by neither handing over possession of the showroom, by the committed date, nor refunding the amount.
(iii) The Opposite Parties are further directed to pay cost of litigation, to the tune of Rs.15,000/- to the complainant.
(iv) The aforesaid directions, shall be complied with by the Opposite Parties within a period of 45 days, from the date of receipt of a certified copy of the order, failing which, they shall be liable to pay the amount mentioned in clause (i) above, with penal interest @ 18% p.a., from the respective dates of deposits till realization and interest @15% P.A., on the amount mentioned in Clause (ii) above, from the date of filing the complaint, till realization, besides payment of cost of litigation.
20. Certified Copies of this order be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion Pronounced.
September 02, 2015.
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[DEV RAJ] PRESIDING MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad