State Consumer Disputes Redressal Commission
Vijay Sharma vs C & C Tower on 24 April, 2019
Cause Title/Judgement-Entry Punjab State Consumer Dispute Redressal Commission Dakshan Marg, Sector 37-A , Chandigarh Complaint Case No. CC/746/2018 ( Date of Filing : 20 Sep 2018 ) 1. Vijay Sharma House no 3425,sector 15-D,chandigarh ...........Complainant(s) Versus 1. C & C Tower phase 6,mohali ............Opp.Party(s) BEFORE: J.S.Klar PRESIDING MEMBER Rajinder Kumar Goyal MEMBER For the Complainant: For the Opp. Party: Dated : 24 Apr 2019 Final Order / Judgement FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.746 of 2018 Date of Institution: 20.09.2018 Order reserved on: 12.04.2019 Date of Decision : 24.04.2019 1. Vijay Sharma S/o Sh. Santosh Sharma R/o House No.3425, Sector 15-D, Chandigarh. 2. Rajinder Sharma S/o Sh. Santosh Sharma R/o House No.3425, Sector 15-D, Chandigarh. .....Complainants Versus 1. C & C Towers Limited, Site Office :- C & C Towers, ISBT cum Commercial Complex, opposite Verka Milk Plant, Gate No.5 Phase-6, (Sector 57) Mohali, through its Chairman/ Director/ Managing Director/ Manager/ Authorized Representative. 2. C & C Towers Limited, Corporate Office, Plot No.70, Sector 32, Gurgaon, Haryana through its Chairman/ Director/ Managing Director/ Manager/ Authorized Representative. 3. G.S. Johar, Chairman, C & C Towers Limited, Corporate Office, Plot No.70, Sector 32, Gurgaon, Haryana. email id:-www.candcininfrastructure.com, www.mohalijunction.co.in. .....Opposite Parties Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Sh. Rajinder Kumar Goyal, Member.
Present:-
For the complainants : Sh. Sandeep Bhardwaj, Advocate For the opposite parties : Sh. Rohit Mittal, Advocate ..................................................................................
J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments that OPs gave advertisement of their integrated project under the name and styles of C & C Towers and the tower C & C Capitals with salient features. Complainant no.1 is an astrologer by profession and he is earning his source of livelihood by doing the work of astrology and has no office space to run his business. Complainant no.2 is doing the work of web designing and he has also no office space to run his work of web designing and they are real brothers. They approached OP nos.1 and 2 and OPs assured them that they have requisite permissions and approvals from the authorities with further assurance of handing over the possession in time. They deposited Rs.10,47,200/- with OPs, vide Annexure C-2 and C-3 for the purchase of unit for their self-use and earning their source of livelihood by self-employing themselves. The OPs issued allotment letter dated 11.04.2013 to them, agreeing to complete the construction within a period of 60 months from the date of compliance i.e. 16.12.2009, as per condition no.1.3.3 and to hand over the possession after completing the commercial complex after obtaining the requisite approvals. The date of possession expired on 15.12.2014, but OPs failed to disclose the reason for not completing the construction in time. OPs sold the unit at the price of Rs.7000/- per square feet. The basic sale price of the unit was Rs.26,18,000/- of total area of 374 square feet. The OPs received the consideration amount from them without holding the requisite permissions for the development of the project in sheer violation of PAPRA Act, 1995. The OPs acknowledged receipt of payment of 35% of price of the unit, vide Annexure-C-2 and C-3. It is further averred that OP nos.1 and 2 did not start the construction in the project. Even GMADA issued notice to OPs for cancellation of agreement for non-compliance of construction and it was also published in the papers dated 31.03.2013, 20.04.2015 and 24.06.2015 vide Mark A to C. The OPs issued a letter dated 07.05.2015 to one of the allottees informing that bankers, GMADA and other stake holders were committed to extend their financial support and they would restart the construction by July 2015 and would complete it by mid-2017. One of the allottees also obtained information from GMADA under Right to Information Act, to the effect that no license has been granted to OPs and no agreement was entered by the OPs with the Government to develop the above project, vide Annexure C-7. They have alleged deficiency in service and unfair trade practice on the part of OPs for not completing the project and not obtaining the approvals from competent authorities for the development of the project. The complainants prayed for below noted reliefs against OPs:
(i) To refund the entire deposited amount of Rs.10,47,200/- with interest @15% per annum from the dates of deposits till realization.
(ii) to pay compensation of Rs.2 Lakh for mental harassment, unfair trade practice and deficiency in service.
(iii) to pay Rs.One Lakh as litigation expenses.
2. Upon notice, OPs appeared and filed written reply by raising preliminary objections that disputed property is a commercial space, which was allotted to complainants and they are not the consumers of OPs, as they purchased it for commercial purposes to earn profits only. This Commission has no pecuniary jurisdiction to try the complaint, as complainants sought refund of Rs.10,47,200/- with interest @15% per annum only. The OPs received only 35% of payment as admitted by complainants also. There is specific column of profession, wherein complainants have mentioned that both are engaged in business, hence there was no occasion for them to purchase the unit for the purpose of earning livelihood. A person who is already earning his livelihood cannot be said to be a consumer on the basis of a mere plea that he booked a commercial unit for the purpose of earning his livelihood. They purchased the commercial unit for speculative purposes only to earn profits. The booked unit was of 374 square feet and there is no probability that the work of astrologer as well as web designing possibly might be set in booked space. The complainants misrepresented the facts to OPs and their deposited money is liable to be forfeited in favour of OPs. There is arbitration and mediation clause in the allotment letter and the complaint is not maintainable in its presence. There is no time for mandatory completion of construction of the project under the allotment letter, as per clause 1.3.3 of it. The OPs attributed delay in change of designs and structures by Government of Punjab and GMADA and collapse of constructed and built up area of tower C without any fault of OPs due to heavy rainfall in September 2017 and non availability of raw material and construction material due to ban on sand mining in the year 2012 by the Government. The OPs controverted the averments of complainants even on merits in the written reply on the above referred grounds and prayed for dismissal of the complaint.
3. We have heard the learned counsel for the parties and have also examined the record of the case. The first submission raised by counsel for OPs is that this Commission has no pecuniary jurisdiction to try the complaint, because the complainants prayed for refund of deposit amount of Rs.10,47,200/- and further prayed for Rs.Two Lakh as compensation for mental harassment and Rs.One Lakh as cost of litigation, , which is less than Rs.20,00,000/-. We find no force in this submission, as raised by counsel for OPs. The basic sale price of the unit is Rs.26,18,000/- in this case and the value exceeds Rs.20,00,000/- in this case. The contention of OPs is not accepted and this point is ruled in favour of complainants by holding that this Commission has necessary pecuniary jurisdiction to try the complaint.
4. The next point as strongly agitated by counsel for OPs is that complainants are not proved to be consumers in this case of OPs in as much as they have invested the amounts in commercial project just to generate profits solely and the space is just of 374 square feet and to run the business of astrologer and web designing in small space is not possible. The OPs have failed to produce on record any evidence to the effect that complainants are property dealers or they are doing this business of sale purchase of real estate for generating profits only nor OPs produced on record any evidence to the effect that for doing the business of astrologer and web designing, there is need of large space for that purpose. A single person can handle the business of astrologer and business of web designing as well. The emphasis has been laid on this point by counsel for OPs, that it is a commercial unit and complainants have invested in it just for the sake of generating profits. On the other hand, counsel for complainants contended that complainants purchased the unit in question for the purpose of earning source of livelihood by means of self employment and for their personal use. We have examined the record of the case, the complainants are real brothers and they filed affidavit that want to start their own work for the purpose of earning their livelihood exclusively by means of self employment, since, there is no other space with them to earn their livelihood by means of self employment. They are residing in the same house at Chandigarh. It is settled principle of law that a person can either do the work himself or with the assistance of his family members or with his family member and it would be covered within the definition of self employment, as given in the explanation under Section 2(1)(d) of the Act. Undoubtedly, it is a commercial project, but complainants specifically pleaded and proved in the affidavit on record that they purchased it for their self employment to earn their livelihood. It has also appeared in evidence and pleadings on record that they do not deal in sale and purchase of the real estate. The OPs also obtained declaration from them to the effect that office space would be used by them for the purpose, for which it was sub-leased to them only. The OPs failed to rebut this evidence of complainants and OPs have also failed to prove on record that they deal in sale and purchase of real property and other properties also and purchased it for the sake of generating profits. In this view of the matter, the contention of OPs is not accepted that complainants were already earning sufficient source of his livelihood and hence, they cannot be said to be consumers. Herein the explanation of Section 2(1)(d) of the Act permits the purchase of commercial goods or commercial services, if they are required by the purchaser for the purpose of exclusively earning his livelihood by means of self employment. In this view of the matter, the complainants are held to be consumers of OPs.
5. The next point raised by counsel for the OPs is that there is an arbitration clause in allotment letter and hence consumer complaint is not maintainable. We find no force in this submission of OPs. The matter has been settled by larger bench of Hon'ble National Commission in consumer complaint no.701 of 2015, decided on 13.07.2017 titled as "Aftab Singh Vs. EMAAR MGF Land Limited and another". The National Commission has held in this authority that an arbitration clause in the afore-stated kind of Agreements between the complainants and the builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. Against this order of the National Commission, Civil Appeal nos.23512-23513 of 2017 titled as EMAAR MGF Land Limited and another Vs. Aftab Singh" was filed by OP before the Top Court of the country, which has since been dismissed by the Apex Court, vide order dated 13.02.2018. Consequently, the presence of an arbitration clause is not a bar to resolution of this dispute by the Consumer Forum.
6. Now, we have to decide as to whether the complainants are entitled to refund of the amounts on account of deficiency in service and unfair trade practice of OPs. The OPs published brochure Ex.C-1 for subleasing the project to various allottees who applied for it. The brochure contains salient features of this project to be developed by OPs. The complainants applied for allotment of office space on sublease basis for 90 years and paid the amounts to OPs. Mark A, B and C are the copies of newspaper cutting regarding notice issued by GMADA to OPs for not completing the project in question in time. One Sharanjeet Kaur obtained information under Right to Information Act about this project from OPs to the effect that construction would restart by July 2015 and the project would be completed by mid of the year 2017, vide Ex.C-5. Ex.C-6 is the copy application moved by Sharanjeet Kaur to Information Officer GMADA for providing the requisite information about the project. Ex.C-9 is copy of information supplied by GMADA dated 11.03.2016 to the effect that GMADA has initiated the proceedings against C & C Towers for cancelling the agreement for not completing the work of the project in time and OPs have stopped development at that time. Due to non-availability of funds M/s C & C Towers remained unable to complete the project in time. Vide letter dated 12.07.2017 by OPs to Vijay Sharma and Rajinder Sharma complainants admitted that the project is not developed by them and asked allottees to sign an undertaking to extend the construction time line by three years commencing from September 2016 to August 2019. OPs relied affidavit of Arunav Pankaj Authorized signatory of OPs in support of their version and Ex.OP-1 is the copy of resolution in his favour passed by OPs. Ex.OP-1/3 is the copy of notice of award by PIDB issued to OPs regarding acceptance of OPs' offer. Ex.OP-1/4 is the copy of concession agreement executed between OPs, GMADA and State Transport Department. Ex.OP-1/5 is the copy of project site lease deed executed on 13.08.2009 between OPs and GMADA. Ex.OP-1/6 is the copy of letter from GMADA to OPs dated 27.01.2010 to the effect that the GMADA passed the revised plan of OPs and granted the permission for construction of the project as per terms and conditions, as mentioned therein. Ex.OP-1/7 is the copy of letter dated 29.12.2010 from GMADA to OPs regarding NOC from NHAI. Ex.OP-1/8 is copy of letter dated 04.04.2011 from GMADA to OPs regarding granting permission for construction of buildings. Ex.OP-1/9 is the copy of weather report of 03.09.2011, 07.09.2011 and 08.09.2011. Ex.OP-1/10 is the copy of status report DBTCC Mohali dated 03.10.2011. Mark A and B are the news report clipping regarding ban on mining. Ex.OP-1/12 is the copy of environment clearance for establishment of bus terminal-cum-commercial complex. Ex.OP-1/13 is the copy of no objection certificate dated 09.04.2010 by Punjab Pollution Control Board Vatavaran Bhawan, Patiala to OPs. Ex.OP-1/14 is the copy of letter dated 06.07.2009 regarding no objection for withdrawal of ground water issued by Ministry of Water Resources Government of India to OPs. Ex.OP-1/17 is the copy of letter from PSPCL to OPs regarding NOC. Ex.OP-1/18 is the copy of clarification by GMADA to OPs to the effect that only agreement has been executed with company for development of the project and no separate license has been issued in this regard. Ex.OP-1/19 is the copy of partial completion certificate issued by GMADA to OPs in December 2016. The OPs relied upon above referred evidence regarding delay in the project and in completing the construction work by them.
7. The information provided by GMADA to one Sharanjit Kaur, the co-allottee in this project on 29.09.2016 vide Ex.C-7 is to the effect that OPs have not entered into an agreement with Government and it is violation of mandate of Section 3 of PAPRA Act, 1995 for not entering into agreement with government for the development of the project by OPs, which is sine qua non for this lease project, as provided under RTI Act to one Sharanjit Kaur and without holding any such approvals regarding above project by OPs, it is deficiency in service and unfair trade practice. Even GMADA proceeded to cancel the agreement with OP, vide Ex.C-9 dated 11.03.2016 for non-development of the project by OPs. Even OPs undertook to complete the construction of the unit within 60 months from the compliance date 16.12.2009, as per clause 1.3.3 of allotment letter and the period of five years fixed for completion of the construction by OPs of this project comes to an end on 16.12.2014 in this case and thereby delayed the construction/development of the project. OPs relied upon, the status report of DBTCC Mohali by Mehro Consultants dated 03.10.2011 with copies of newpapers report, but these newspaper reports are without any date and the status report is for the year 2011 only. The OPs further relied upon weather report for the dates 06.09.2011, 07.09.2011 and 08.09.2011. These are for just for three days and this document is not sufficient to explain the delay in construction/development. The OPs relied upon the partial completion certificate dated 15.12.2016. It is the only partial completion certificate, which is not the completion certificate as per the mandate of law. The OPs failed to produce on record any photographs regarding development of the project by them. We are of the view that OPs failed to comply with clause 1.3.3 of allotment letter dated 11.04.2013 Annexure Ex.C-4. The OPs are, thus, found to be deficient in service and guilty of unfair trade practice by violating the mandate of PAPRA Act, 1995 in not developing the project in the schedule time. The counsel for complainants relied upon judgments of this Commission passed in C.C. No.942 of 2017 titled as :Rajeev Sagar Mehta Vs. C&C Towers Limited & others", decided on 21.02.2019, C.C.No.314 of 2017 titled as "Indu Larola & another Vs. C & C Towers Limited & others", decided on 07.11.2017, C.C. No.122 of 2016 titled as Raman Kumar Vs. C&C Towers & others, decided on 20.03.2017, wherein the OPs C&C Towers were held deficient in service for not completing the project in time. The OPs C&C Towers also filed an appeal against order of this Commission dated 20.03.2017 passed in Raman Kumar Vs. C&C Towers & others before the Hon'ble National Commission, but this appeal of OPs has been dismissed by the National Commission.
8. As a result of our above discussion, we accept the complaint of the complainants with following directions to OPs:
OPs are directed to refund the entire deposited amounts to complainants with interest @12% per annum from the date of their respective deposits till actual payment.
The complainants are also held entitled to Rs.40,000/- as compensation for mental harassment, besides litigation expenses of Rs.20,000/- payable by OPs to the complainants on equal basis.
The above amounts shall be payable by OPs to complainants within 45 days from the date of receipt of copies of this order.
9. Arguments in this complaint was heard on 12.04.2019 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
10. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER April 24, 2019.
(MM) [ J.S.Klar] PRESIDING MEMBER [ Rajinder Kumar Goyal] MEMBER