State Consumer Disputes Redressal Commission
Nirmaljit Kaur vs M/S Ansal Properties & Infrastructure ... on 4 April, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 79 of 2013
Date of institution: 12.8.2013
Date of Decision: 4.4.2016
Nirmaljit Kaur W/o Mr. Pravinder Singh, R/o 183-M, South City, Ludhiana
Complainant
Versus
1. M/s Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16,
Kasturba Gandhi Marg, New Delhi-110001 (Through its Managing
Director/Director/Principal Officer).
2. The Ansal API, Ist Floor, SCO No. 183-184, Above British Library,
Madhya Marg, Sector 9-C, Chandigarh.
3. "The Boulevard" Brand Boutique, 105, The Mall Road, Ludhiana
(Struck off vide order dated 29.8.2014)
Opposite Parties
Consumer Complaint under the Consumer
Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the complainant : Sh. Kulwinder Singh, Advocate
For opposite parties Nos. 1&2: Sh.Manish Joshi, Advocate
For opposite party No. 3 : Struck Off as per order dt. 29.8.14
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Complainant has filed this complaint against Opposite parties (hereinafter referred as Ops) under the Consumer Protection Consumer Complaint No. 79 of 2013 2 Act, 1986 (for short 'the Act') on the averments that with an intention to generate income to earn livelihood by way of self employment booked one commercial site in the building of Mall known as "The Boulevard" Brand Boutique, 105, The Mall Road, Ludhiana and accordingly, Ops allotted Unit No. SF-09 with super area 548 sq. ft. having covered area 12'-9" x 31'-2" on the second floor for a total consideration of Rs. 59 lacs @ Rs. 10,766/- per sq. ft. to the complainant vide allotment letter dated 27.7.2007. Detailed layout plan and specifications were also confirmed by Ops. In response to the allotment letter, schedule of payment was also provided. As per the payment schedule, 90% of the price/consideration for the unit was payable before delivery of actual possession and installation of HV Air Conditioning Chillers, Power Back-up and other services and out of the remaining consideration, 5% amounting to Rs. 2,95,000/- was payable at the time of installation of HV Air Conditioning Chillers, Power Back-up and other services and balance 5% was payable at the time of delivery of possession. In compliance of the said payment schedule, complainant had paid 90% of the said price amounting to Rs. 53.10 lacs to Ops. The possession of the unit/shop was undertaken by the Ops to be delivered within 3 years from the date of allotment. However, Ops continued to delay handing over the possession on one pretext or the other. Ops further failed to provide installation of HV Air Conditioning Chillers, power back up and other services within the stipulated period. Complainant was always and is still ready and willing to pay the balance 10% i.e. Rs. 5,90,000/- and to incur the expenses towards payment of Stamp Duty etc.. Ops Consumer Complaint No. 79 of 2013 3 instead of complying with their obligations, demanded the entire 10% amounting i.e. Rs. 5,90,000/- vide their letter dated 23.5.2009 against the terms and conditions of the allotment letter whereas period of three years had expired on 26.7.2010. Then complainant received a letter No. APIL/L3/Ldh/SF 09 dated 1.6.2011 wherein they dishonestly and wilfully made a false and illegal claim wherein they increased the super area to the extent of 783.04 sq. ft. and demanded the additional payment of the area amounting to Rs. 32,91,058/-. Once they had issued the allotment letter of Unit No. SF- 09 having super area of 548 sq. ft. and the area could be increased marginally but not without any notice. They demanded the payment of increased area to the extent of 235.04 sq. ft., which was beyond the reach of the complainant. Ops were requested to deliver the possession of the shop according to the measurements given in the allotment letter but they did not bother to any request of the complainant, which amounted to unfair trade practice and deficiency in service on the part of Ops. Hence, the complaint with a direction to Ops to deliver the possession of the shop/unit No. SF-09 only having the super area of 548 sq. ft. as per the allotment letter dated 27.7.2007 @ Rs. 10,766/- per sq. ft. and compensation of Rs. 10 lacs has been demanded on account of mental harassment and loss of livelihood etc. by the complainants at the instance of the Ops and also the litigation expenses.
2. The name of Op No. 3 was struck off vide order dated 29.8.2014. Op Nos. 1 & 2 filed written reply taking preliminary objections that the complaint is not maintainable; complainant is not Consumer Complaint No. 79 of 2013 4 consumer as defined under the Act. A sum of Rs. 10 lacs has been demanded on account of mental harassment and litigation expenses alongwith possession of the unit as the pecuniary jurisdiction under these lies before the District Forum; no cause of action had arisen in favour of the complainant as parties are bound by the terms and conditions of the agreement and that complicated questions of facts and law were involved in the case, which required examinationand cross examination of the witness and the same is not possible in summary proceedings, therefore, parties be relegated before the Civil Court. On merits, allotment of Unit No. SF-09 having super area of 548 sq. ft. in favour of the complainant is admitted. But the complainant did not follow the payment schedule. Total super area was finalized on completion of the project, therefore, there was increase in the super area. Ops have every right to demand the additional payment on additional area, therefore, there was no unfair trade practice or deficiency in service on the part of Ops. Complaint is without merit, it be dismissed.
3. The parties were allowed to lead their evidence.
4. In support of his allegations, complainant had tendered into evidence affidavit of Nirmaljit Kaur Exs. CA & CW/B, allotment letter dt. 27.7.07 Ex. C-1, call letter dt. 23.5.09 Ex. C-2, letter Ex. C-3, legal notice Ex. C-4, postal receipt Ex. C-5, reply Ex. C-6. On the other hand, counsel for Op Nos. 1 & 2 have filed affidavit of Sh. Raghunath Sharma, Sr. Manager Ex. Op-1&2/A, application form Ex. Op1&2.
Consumer Complaint No. 79 of 2013 5
5. We have heard counsel for the complainant Kulwinder Singh, Advocate and counsel for Op Nos. 1 &2 Sh. Manish Joshi, Advocate and have carefully gone through the pleadings and evidence on the record.
6. The first objection taken by Ops No. 1 & 2 that the complainant is not a consumer as defined under the Act as the property in question, which was booked by the complainant with Op is commercial in nature. It is very much clear from the allotment letter Ex. C-1 that his shop No. SF-09 is commercial property, which is not covered under Section 2(1)(d)(ii) of the Act. Whereas counsel for the complainant argued that it has been specifically mentioned by the complainant that this shop/unit was purchased by her to earn her livelihood by way of self employment and it has been specifically pleaded in para No. 2 of the complaint, therefore, the plea taken by Ops is not maintainable.
7. For ready reference, Section 2(1)(d)(ii) of CP Act, 1986 is reproduced:-
"(2)(1)(d) "consumer" means any person who --
(i) xxxx xxxx xxxx xxxx
(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, Consumer Complaint No. 79 of 2013 6 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;"
8. Perusal of the abovesaid definition of the Consumer as defined under the Act clearly shows that the commercial aspect of any transaction is not covered under the definition of the consumer except in case it is to earn livelihood for self employment, which has been specifically pleaded by the complainant in his complaint. Counsel for Ops has referred to Clause 24 of the allotment letter, which reads as under:-
"That the developer shall have exclusive rights on behalf of the allottee to let out the allotted Shop to any tenant for the decided and agreed purpose and in furtherance thereof the developer shall have all the rights regarding negotiation of rent and execution of the necessary documents in respect thereof in order to ensure that 'The Boulevard' Brand Boutique at Ludhiana becomes fully and effectively operational. This right is reserved by the developer to ensure that best of the brands are brought to the complex as tenants. Good tenants suggested by the allottee may also be considered, but the final right shall Consumer Complaint No. 79 of 2013 7 always be exercised by the developer to ensure optimum brand mix for the mall. The allottee assures and undertakes not to object to this arrangement in future also. The developer shall have the sole right to induct the tenant in the said premises for all intents and purposes."
9. Under this Clause, the developer shall have the sole right to induct the tenant in the said premises for all intents and purposes, therefore, if according to this Clause, the tenant is to be inducted at the sole discretion of the developer then element of self employment is not covered as alleged by the complainant. However, counsel for the complainant argued that in case the entire payment has been made by the complainant to Ops, although, Ops may have right to negotiate the tenants but in case the complainant himself agreed to the proposal of Ops to run the shop of any specific brand then he can also run the said shop to earn her livelihood and being owner of the shop, she has every right to run the brand as approved by Ops, therefore, merely because there is a clause No. 24 in the allotment letter to negotiate the tenants does not exclude the complainant that they cannot run the shop with the consent of Ops. Otherwise, Ops have not been able to bring any evidence on the record that the complainant has any other source of income and employment. It has been further stated by the counsel for the complainant that in similar circumstances this Bench in C.C. No. 77 of 2011 "Harinder Singh Grewal versus M/s Ansal Properties etc." decided on 30.7.2014, it was held that the consumer is a complainant. In the appeal filed before the Hon'ble National Commission i.e. F.A. No. 1101 of 2014, Consumer Complaint No. 79 of 2013 8 the notice was issued to the other party and operation of the impugned order in respect of the award of compensation only was stayed and similar is the stand of the complainant and Op in the present complaint. Therefore, in view of our observation in complaint No. 77 of 2011 "Harinder Singh Grewal versus M/s Ansal Properties etc." decided on 30.7.2014, we are of the opinion that the complainant comes under the definition of the consumer and complaint on her behalf is maintainable.
10. With regard to the pecuniary jurisdiction, according to the allotment letter Ex. C-1, the total price is Rs. 59 lacs and in the revised plan, Ops have increased the super area to the extent of 783.04 sq. ft., the total price comes to Rs. 84,30,539/- and Rs. 10 lacs has been demanded as compensation. Even as per the revised allotment letter, the total relief sought by the complainant from Op No. 1 is less than Rs. 1 crore and more than Rs. 20 lacs, which falls within the pecuniary jurisdiction of this Commission and counsel for Ops was unable to substantiate his point, how the State Commission does not have the pecuniary jurisdiction to entertain this complaint.
11. It has been argued by the counsel for the complainant that according to allotment letter Ex. C-1, the total super area was of 548 sq. ft. when plot number/shop number has been given and area has been given then certainly, there layout plans must have been finalized/approved by the competent authority. Then under what circumstances, there was change of super area has not been explained by Ops. The construction is raised according to the Consumer Complaint No. 79 of 2013 9 drawings approved by the competent authority. Here Clause 2 of the allotment letter is relevant, which is reproduced as under:-
"2. That under normal circumstances any change in the location and the area of the commercial space herein allotted will be avoided or minimized and all our efforts will be made to adhere to the particular space allotted. However, since it is anticipated that the proposed floor plans may undergo a change, on account of any Governmental actions or for any reasons beyond the control of Developers, any marginal changes in the area have to be made, the same will be intimated to you forthwith. In case, of any change in area arising out of the above circumstances the consideration amount will be revised accordingly."
12. This clause will reveal that it is anticipated that proposed floor plan may undergo a change on account of any Governmental actions or for any reasons beyond the control of Developers and any marginal changes in the area, the same will be intimated to the allottee forthwith. Here there are no pleadings that increase in the area was due to some Government action or beyond the control of the Developer. Only marginal change was permissible whereas the super area has been increased from 548 sq. ft. to 783.04 sq. ft., which cannot be said to be marginal increase. Moreover, no intimation was given to the complainant. In case the increase is not according to the agreement between the parties/allotment letter then the complainant reserves his right either to accept the revised area or to ask for refund of the amount. Moreover, the construction was to be Consumer Complaint No. 79 of 2013 10 raised within a period of three years from the date of agreement i.e. 27.7.2007, which was to be completed upto 27.7.2010 whereas the revised area letter was issued on 1.6.2011, after that on 14.5.2012 revised area was intimated to the complainant. Complainant vide legal notice dated 27.7.2007 asked for the area which was given in the original allotment letter. It was replied on 21.6.2012 and the proposal of the complainant was not accepted and then the complaint was filed, therefore, there is delay in raising the construction also as agreed in the allotment letter.
13. In the complaint, complainant has sought relief of possession of shop SF-09 of 548 sq. ft. and compensation or any other relief, which the State Commission may grant. Since the area has been increased by Ops of their own discretion without any notice to the complainant and it is not a marginal increase, which is acceptable under Clause 2 of the agreement and it may be difficult for the complainant to pay the additional amount of the additional area as demanded by Ops and despite request of the complainant, Ops have not been able to deliver the possession of the shop as agreed in the allotment letter, therefore, act and conduct of Ops amounted to unfair trade practice. Accordingly, we accept the complaint and direct Ops as under:-
(i) to deliver the possession of shop No. SF-09 having super area of 548 sq. ft. or in case it is not possible then deliver the possession of the shop having area of 783.04 sq. ft. and charge the amount for the additional area @ Rs. 10,766/- per sq. ft. or in case the shop of the enhanced area is not Consumer Complaint No. 79 of 2013 11 acceptable to the complainant then Ops will refund the amount received by them from the complainant alongwith interest @ 9% p.a. from the date of receipt till payment;
(ii) Ops will further pay a sum of Rs. 2 lacs on account of unfair trade practice, mental agony, harassment and unilaterally increasing the area of the shop; and
iii) pay Rs. 11,000/- as litigation expenses.
Ops be directed to comply with the above directions within 45 days from the receipt of copy of the order.
14. The arguments in this consumer complaint were heard on 28.3.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
15. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
April 4, 2016. (Surinder Pal Kaur)
as Member