State Consumer Disputes Redressal Commission
Bestech India Pvt. Ltd. vs Baldeep Singh Dhillon on 25 January, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 13 of 2016 Date of Institution : 08.01.2016 Date of Decision : 25.01.2016 1] Bestech India Pvt. Ltd., having its Corporate Office at 124, Bestech House, Sector-44, Gurgaon through its authorized person Ms. Shiveta Raina, General Manager (Legal). 2] Bestech Business Towers, having its Branch Office at Plot No.1, Phase-IX Extension, Focal Point, Sector-66, Mohali through its authorized person Ms. Shiveta Raina, General Manager (Legal). ....Appellants/Opposite Parties. Versus 1] Baldeep Singh Dhillon son of Sh. Virsa Singh Dhillon Resident of House No.488, Block-13, Defence Officers Enclave, Sadar Patel Marg, Behind Taj Palace Hotel, New Delhi. 2] Akshay Mankotia son of Sh. K. S. Mankotia, Resident of House No.488, Block -13, Defence Officers Enclave, Sadar Patel Marg, Behind Taj Palace Hotel, New Delhi. .....Respondents/Complainants. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by: Sh. Sanjay Vij, Advocate for the appellants.
PER DEV RAJ, MEMBER This appeal has been filed against the order dated 30.11.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short 'the Forum'), vide which, consumer complaint bearing No.267 of 2015 was allowed and the Opposite Parties (now appellants) were jointly and severally directed as under:-
"18] In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in rendering proper service to the complainants as well as having indulged into unfair trade practice. Hence, the present complaint of the Complainant is allowed qua Opposite Parties. The Opposite parties are jointly & severally directed as under:-
[a] To refund Rs.8,37,190/- along with interest @9% p.a. from the date of respective deposits till it is paid;
[b] To pay an amount of Rs.50,000/- to the complainant as consolidated amount of compensation for causing mental agony and harassment on account of deficiency in service as well as unfair trade practice;
[c] To pay litigation expenses to the tune of Rs.10,000/-
The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be liable to pay an interest @18% per annum on the amount of Rs.8,37,190/- from the date of respective deposits till it is paid and also on the compensation amount of Rs.50,000/- from the date of filing of this complaint till it is paid, apart from paying litigation expenses."
2. The facts in brief are that the complainants booked a unit with the Opposite Parties to start some business for earning livelihood and paid Rs.3,21,750/- towards booking amount on 30.4.2011; Rs.1,65,440/- on 13.9.2011 and Rs.3,50,000/- on 7.9.2011 respectively (Annexures C-1 to C-5). It was stated that complainant No.2 changed his mind and decided to continue with his job and, as such, the complainants decided to seek refund of the amount. It was further stated that Unit No.A-507 was allotted to the complainants. It was further stated that the complainants received a letter dated 14.2.2012 from the Opposite Parties with demand of Rs.17,70,653/- on account of outstanding amount with interest and the installment to be paid on completion of ground floor (Annexure C-6). It was further stated that the complainants sent a letter dated 28.2.2012 (Annexure C-7) thereby requesting the Opposite Parties to refund the amount of Rs.8,37,190/- as they failed to keep their assurances and, as such, also requested to cancel the unit/plot (Annexure C-7). It was further stated that surprisingly, the Opposite Parties after a period of more than two years, sent cancellation letter stating therein that 20% of the total sale price as earnest money had been forfeited (Annexure C-8). It was further stated that the complainants also took up the matter with the Opposite Parties vide email dated 6.2.2015 (Annexure C-9) enquiring the status of the project and sought refund of amount with interest, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service, and indulgence into unfair trade practice.
3. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed seeking directions to the Opposite Parties to refund the amount of Rs.8,37,190/- alongwith interest @24% per annum from the date of respective deposits till actual payments, pay Rs.3,00,000/- as compensation and Rs.51,000/- as litigation expenses.
4. The Opposite Parties in their written version stated that since the property, in question, was a commercial one and had been booked by the complainants for resale (Annexure R-1) , therefore, they were not consumers and, thus, the complaint was not maintainable. The factum of booking of unit No.507 by the complainants and making payment of Rs.8,37,190/- towards it, was admitted by the Opposite Parties. It was further stated that the total cost of the unit, in question, was Rs.55,81,250/-. It was further stated that after paying Rs.8,37,190/- being earnest money at the time of booking, the complainants did not pay even a penny further towards the installments despite several call notices sent to them (Annexure R-3 colly.). It was further stated that since even after sending notice for cancellation etc., the complainants did not pay any further amount as per the terms & conditions of the application form, the allotment of the unit, in question, was finally cancelled and earnest money was forfeited as stipulated in the terms & conditions, duly signed by the complainants. It was further stated that timely payment of the installments was the essence of the transaction, and therefore, on account of breach of the terms & conditions, the Opposite Parties rightly cancelled the allotment and forfeited the earnest money. 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.
5. The complainants filed replication where they reiterated all the averments contained in the complaint and repudiated those as contained in the written statement of the Opposite Parties.
6. The parties led evidence, in support of their case.
7. After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, vide the impugned order, as stated above.
8. Feeling aggrieved, the Opposite Parties have filed the instant appeal.
9. We have heard the Counsel for the appellants at the preliminary stage and have gone through the record of the case carefully.
10. After going through the evidence on record and submissions of the Counsel for the appellants, we are of the opinion that the appeal is liable to be dismissed at the preliminary stage for the reasons to be recorded hereinafter.
11. It is evident that the respondents/complainants booked a unit having super area of 1175 sq. ft. with the appellants/Opposite Parties and deposited a sum of Rs.8,37,190/-. As per Clause 8(i) of the terms and conditions of the provisional allotment (Annexure R-2), the possession of the unit, in question, was to be offered within a period of 30 months (excluding a grace period of 6 months) from the date of execution of the Agreement subject to timely payment by the applicant(s)/intending allottee(s) of the sale price and other charges due and payable according to the payment plan opted. No agreement was executed. The respondents/complainants sought refund of Rs.8,37,190/- vide their letter dated 28.02.2012 (Annexure C-7).
12. The Counsel for the appellants submitted that the respondents were not consumers within the meaning of Section 2 of the Consumer Protection Act, 1986 (hereinafter to be referred as 'the Act 1986'), as the unit, in question, was not a residential property but a commercial unit. He further submitted that respondent No.2 in his letter dated 28.2.2012 (Annexure R-1) stated that unit was booked on the assurance that the same would be resold by January 2012 on premium and there was no requirement of paying further installments. Perusal of the record reveals that no doubt the unit, in question, was a commercial one but complainants have specifically averred that they booked the same to start some business to earn livelihood. It may be stated here that merely on account of the fact that the unit booked was commercial did not mean that the respondents were not consumers. The unit, in question, measured only 1175 Sq. ft. and it is also not the case that the space booked was huge with a view to sell the same to earn huge profits. The respondents had paid only Rs.8,37,190/- and as averred by them, due to deferment of their plan to start business, refund was sought. Recently, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi held as under:-
"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).
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.
The reliance placed by the appellants on the case titled as Shikha Birla Vs. DLF Retailers Developers Ltd., 2013(1) CPC 612 (NC) being distinguishable on facts, is of no help to the appellant. The principle of law, laid down, in Kavita Ahuja's case (supra) is fully applicable to the present case. The complainants, thus, fall within the definition of 'consumer', as defined under Section 2(1)(d) of the Act 1986.
13. The Counsel for the appellants next submitted that the District Forum erred in not appreciating the fact that it did not have territorial jurisdiction to entertain and decide the complaint. Section 11 of the Act 1986, being relevant, is extracted hereunder:-
"11. Jurisdiction of the District Forum.--
(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs].
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
As per stipulation appearing on Page 1 of the application for allotment (Page 45 of the file), "The applicant(s) shall make all the payments through bank drafts and cheques in favour of "Bestech India Pvt. Ltd." payable at Gurgaon/New Delhi/Delhi/ Chandigarh/Mohali." In the instant case, since payment in the sum of Rs.3,21,750/- made, was at the office of the Opposite Parties at Chandigarh, part of cause of action definitely arose at Chandigarh and the District Forum had clear jurisdiction to entertain and decide the complaint. The objection put forth by the appellants, therefore, being devoid of merit, is not sustainable in the eyes of law and the same stands rejected.
14. The next submission made by the Counsel for the appellants was that since the total value of the unit, in question, was Rs.56,98,750/-, it exceeded the pecuniary jurisdiction of the District Forum. A perusal of prayer clause in the complaint reveals that the complainants sought refund of amount of Rs.8,37,190/- alongwith interest @24% per annum, besides Rs.3 lacs as compensation and Rs.51,000/- as litigation expenses. Had the respondents/complainants prayed for possession of the unit, in question, or had the amount of refund sought by them exceeded Rs.20 lacs, then it would have been accepted that the District Forum did not have the pecuniary jurisdiction. Clearly, in the instant case, the relief claimed was well within the pecuniary jurisdiction of the District Forum. The objection put forth by the appellants, therefore, being devoid of merit, is not sustainable in the eyes of law and the same stands rejected.
15. Perusal of record reveals that request for refund was made on 28.2.2012 (Annexure C-7). The appellants were required to take a decision within a reasonable time but they kept silent and sent cancellation letter after a period of more than two years stating that 20% of the total sale price as earnest money had been forfeited. Not only this, the appellants never intimated that application of the respondents had been accepted and asked them to execute Buyer's Agreement. Paras 15 & 16 of the impugned order, which are extracted hereunder, support the case of the respondents:-
"15] We have perused the conditions of allotment, wherein in Clause 2(ii) & (iii), it has been stipulated as under:-
"ii) The final allotment shall be entirely at the discretion of the Company, which has the right to reject any application without assigning any reason whatsoever.
iii) Upon acceptance of the application, the Applicant(s)/ Intending Allottee(s) shall be required to execute the 'Buyers Agreement' in the Company's prescribed format, within 30 days from the date of its dispatch of the said Agreement by the Company, failing which the Company shall have the right to cancel the allotment and forfeit the Earnest Money and allot/sell the said Office Space/Unit to any third party or use it for any purpose it may deem appropriate."
16] On bare perusal of these aforementioned conditions, it is abundantly clear that the Opposite Parties were unilaterally Master of this agreement, as the sub-clause (ii), reproduced above, clearly indicates that the Opposite Parties were at liberty to reject the application of the applicants at the time of final allotment, meaning thereby that the applicants even after making the entire payment of basic price of the Unit in question i.e. Rs.56,98,750/- were still at the mercy of the OPs, which is totally unethical, illegal and can in no manner be held right. The contents of sub-clause (ii) is unilaterally and heavily loaded against the applicants/complainants and the Hon'ble National Commission, New Delhi, while dealing with the similar issue in the case titled as Prashad Homes Pvt. Ltd. Vs. B. Mahendra Reddy, 2009(I) CPJ 136 (NC), has held that the clauses of an agreement, which are heavily loaded against one party, tantamounts to unfair trade practice."
We concur with the finding given by the Forum and are of the considered opinion that, it (Forum) rightly allowed the complaint of the respondents by holding that action of the appellants in forfeiting the deposited amount was totally illegal and, therefore, their action in not releasing the amount to the respondents on their request, amounted to deficiency in rendering service on their part.
16. For the reasons recorded above, this appeal being devoid of any merit, is dismissed, at the preliminary stage, with no order as to costs. The impugned order passed by the District Forum is upheld.
17. Certified copies of this order be sent to the parties, free of charge.
18. File be consigned to record room, after completion.
Pronounced January 25, 2016.
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[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER