State Consumer Disputes Redressal Commission
Capt. Rajinder Singh Sidhu & Anr. vs M/S Bestech India Pvt. Ltd. & Anr. on 23 October, 2024
CC/314/2016 DOD: 23.10.2024
CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 31.03.2016
Date of Hearing: 27.05.2024
Date of Decision: 23.10.2024
COMPLAINT CASE NO.- 314/2016
IN THE MATTER OF
1. CAPT. RAJINDER SINGH SIDHU
THROUGH LEGAL HEIRS:
I. MR. MOHINDER SINGH SIDHU
S/O LATE CAPT. RAJINDER SINGH SIDHU
R/O KOTHI NO. 75, SECTOR-63,
MOHALI, PUNJAB-160062
II. MS. BINA SIDHU
W/O LATE CAPT. RAJINDER SINGH SIDHU
R/O KOTHI NO. 75, SECTOR-63,
MOHALI, PUNJAB-160062
III. MS. REETINDER SIDHU
D/O LATE CAPT. RAJINDER SINGH SIDHU
R/O KOTHI NO. 75, SECTOR-63,
MOHALI, PUNJAB-160062
2. MRS. BINA SIDHU
W/O LATE CAPT. RAJINDER SINGH SIDHU
R/O KOTHI NO. 75, SECTOR-63,
MOHALI, PUNJAB-160062.
(Through: Mr. Neeraj Gupta, Advocate)
...Complainants
VERSUS
1. M/S BESTECH INDIA PVT. LTD.
AT: BESTECH HOUSE, 124, SECTOR-44,
GURGAON, HARYANA-122002
2. MR. SATIJA
ALLOWED PAGE 1 OF 13
CC/314/2016 DOD: 23.10.2024
CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS
MANAGING DIRECTOR,
AT: BESTECH HOUSE, 124, SECTOR-44,
GURGAON, HARYANA-122002.
3. MR. GOPAL PATHAK
D.M. (CUSTOMER CARE),
AT: BESTECH HOUSE, 124, SECTOR-44,
GURGAON, HARYANA-122002.
4. M/S ORIENT CRAFT LTD.
(THROUGH ITS DIRECTOR- MR. K.K. KOHLI)
AT: 7-D, MARUTI INDUSTRIAL COMPLEX,
SECTOR-18, GURGAON-122002.
5. M/S OLYMPUS REALTORS PVT. LTD.
AT: F-8, OKHLA INDUSTRIAL AREA,
PHASE-I, NEW DELHI
6. M/S PARK VIEW FACILITIES PVT. LTD.
AT: BESTECH HOUSE, 124, SECTOR-44,
GURGAON, HARYANA-122002.
(Through: Mr. Ashok Kashyap, Advocate)
...Opposite Parties
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Ms. Tajinder Kaur, counsel for Complainant appeared on
VC (E-mail: [email protected])
Mr. Alakh Kumar, counsel for OP appeared on VC (E-mail:
[email protected])
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present consumer complaint has been filed by the Complainants before this Commission under Consumer Protection Act, 1986 alleging ALLOWED PAGE 2 OF 13 CC/314/2016 DOD: 23.10.2024 CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS deficiency of service and unfair trade practice on the part of Opposite Parties and have prayed the following reliefs:
"(i) Direct the Opposite Party No. 6 to withdraw the invoices bearing Number BSF/000123, BSF/000264 & BSF/000389 dated 15.06.2015, 08.08.2015 and 19.10.2015;
(ii) To restrain the Opposite Party No. 1 to 6 from raising any invoice/charges of any manner to the complainants in future;
(iii) Direct the Opposite Party No. 1 to induct a lessee/tenant on Complainant's premises on immediate basis, or else deposit the rent on monthly basis before the Hon'ble Forum;
(iv) Direct the Opposite Party No. 1 to 6 to pay the complainants an amount of Rs.32,25,000.00 (Rupees Thirty-Two Lakhs Twenty-Five Thousand Only) as the arrears of rent along with interest @ 18% p.a. from 08.07.2011 till the date of its realization;
(v) Direct the Opposite Party No. 1 to 5 to pay the complainants an amount of Rs.5,00,000.00 (Rupees Five Lakhs Only) as compensation for Mental, Physical harassment, torture and agony,
(vi) Direct the Opposite Party No. 6 to pay the complainants an amount of Rs.5,00,000.00 (Rupees Five Lakhs only) as compensation for harassing and torturing the complainants by its act of raising fraudulent and bogus invoices upon in the name of maintenance;
(vii) Direct the Opposite Party No. 1 to 6 to pay the complainants an amount of Rs.20,00,000.00 (Rupees Twenty Lakhs only) as Punitive Compensation for committing act of unfair trade practice and deficiency in service as they failed to provide the goods as promised by them;
(viii) Award Litigation costs to the Complainants against the Opposite Party No. 1 to 6;
(ix) Grant any such other relief which this Hon'ble Forum may deem fit and proper in the facts and circumstances of the case in favour of the Complainant and against the Opposite Party No. 1 to 6."
2. Brief facts necessary for the adjudication of present complaint are that the Opposite Party Nos. 2 and 3 approached the Complainants, introducing themselves as directors of Opposite Party No. 1, and lured the ALLOWED PAGE 3 OF 13 CC/314/2016 DOD: 23.10.2024 CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS Complainants into investing in the project named 'Orient Bestech Business Tower' of Opposite Party No. 1, assuring high monthly rental returns after the project's completion. The Opposite Party No. 4 is the owner of the land, while the Opposite Party No. 5 is a Real Estate Company that entered into a Collaboration Agreement with the Opposite Party No. 4 to develop the land. The Opposite Party No. 6 is the company authorized to maintain the Complainants' premises. Subsequently, the Complainants booked an area of 1250 sq. ft. at Rs. 2305 per sq. ft. for a total sale consideration of Rs. 35,68,750/-. Accordingly, the Opposite Parties vide allotment letter dated 11.09.2007, allotted IT/Cyberspace Unit No. 802 to the Complainants. Thereafter, a Buyer Agreement dated 08.06.2009 was executed between Opposite Party No. 1 and the Complainants. Subsequently, the Opposite Party No. 3, on behalf of Opposite Party Nos. 1, 4, and 5, issued a conditional offer of possession letter dated 01.07.2013. The Complainants also made a payment of Rs.6,00,000/- towards the outstanding amount for the said space, including Rs. 1,87,000/- towards the interest-free maintenance security.
3. Furthermore, the Opposite Party No. 3, acting on behalf of Opposite Party Nos. 1 to 6, vide letter dated 01.07.2013, blatantly disregarded their entire business project and the business operations related to inducting a lessee into the said project, and demanded maintenance charges from the Complainants, contrary to Clauses 15, 16, and 28 of the Buyer's Agreement dated 08.06.2009. They allocated rent proportionate to the Complainants' area (i.e., 1250 sq. ft.) without providing any justification for their failure to induct a lessee after the completion and development of the premises. Instead, for the first time, the Opposite Parties demanded maintenance charges of Rs. 50,562.00/- from the Complainants, an ALLOWED PAGE 4 OF 13 CC/314/2016 DOD: 23.10.2024 CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS amount that arose due to their own failure to fulfill the commitment made to the Complainants. This was acknowledged by Opposite Parties Nos. 1 to 6, who admitted their mistake and agreed to accept Rs. 6,00,000/- against their original claim of Rs. 6,46,760/-, with receipts being issued accordingly by the Opposite Party No. 6, including receipt number 4197 dated 08.10.2023. The Opposite Party No. 6 had then arbitrarily and unjustly issued invoices bearing numbers BSF/000123 for Rs. 42,135/-, BSF/000264 for Rs. 1,264,640/-, and BSF/000389 for Rs. 171,289/-. The Complainants also sent legal notices to the Opposite Parties requesting the withdrawal of the aforementioned invoices, but to no avail.
4. The Opposite Parties have contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Parties submitted that the Complainants are not consumer under the Consumer Protection Act, 1986 as the Complainants purchased the said office space for making high profits of rental income. He further submitted that the Complainants are under obligation under the agreement dated 08.06.2009 to pay maintenance charges. However, the Complainants are in default and have not paid the amount due to the maintenance charges. The counsel for the Opposite Parties further submitted that the there is no deficiency in services on the part of the Opposite Parties. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint be dismissed.
5. The Complainant have filed the Rejoinder rebutting the written statement filed by the Opposite Parties. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
ALLOWED PAGE 5 OF 13 CC/314/2016 DOD: 23.10.2024
CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS
6. We have perused the material available on record and heard the counsel for the parties.
7. The first question for consideration is whether Complainants fall in the category of 'consumer' under the consumer protection act, 1986?
8. To comment on this issue, we deem it appropriate to refer to Section 2(7) of the Consumer Protection Act, 2019, which provides as under:
(7) "consumer" means any person who--
(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any service 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 service 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 service for any commercial purpose.
9. The above statutory provision makes it clear that a person who buys goods or avail for a consideration which has been paid or promised or ALLOWED PAGE 6 OF 13 CC/314/2016 DOD: 23.10.2024 CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS partly paid and partly promised, or under any system of deferred payment is a consumer. It is evident from the buyer's agreement dated 08.06.2009 that the Complainant had booked an IT/Cyberspace with the Opposite Party no.1. The Opposite Parties had also taken full consideration from the Complainants towards the aforesaid booking. Therefore, the Complainants falls under the category of 'consumer' provided by the Consumer Protection Act, 1986.
10. Further, the Opposite Parties submitted that the Complainants purchased the said office space for making high profits of rental income. However, it is clear from the record that the Complainants purchased the said property for the purpose of earning a livelihood by means of self-employment. Moreover, the Hon'ble NCDRC, in a series of judgments, has held that the commercial use of a property depends on the facts and circumstances of each case, and that if the commercial use is for the purpose of earning a livelihood by means of self-employment, such a purchaser of goods would continue to be a consumer. A similar view was taken in Civil Appeal No. 5858/2017, titled as Rohit Choudhary & Anr. vs. M/s Vipul Ltd., decided on 06.09.2023, and Civil Appeal No. 12322 of 2016, titled as Lilavati Kirtilal Mehta Medical Trust vs. Unique Shantu Developers & Co. Furthermore, on perusal of the record before us, we fail to find any material that shows the Complainants are engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to making a profit by the sale of such office space. A mere allegation that the purchase of the property is for commercial purposes cannot be grounds to reject the present consumer complaint.
ALLOWED PAGE 7 OF 13 CC/314/2016 DOD: 23.10.2024
CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS
11. The main question for consideration before us is whether the Opposite Parties are deficient in providing its services to the Complainant.
12. The expression deficiency of services is defined in Section 2 (1) (g) of the Consumer Protection Act, 1986 as:
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
13. The expression 'service' in Section 2(1)(o) of the Consumer Protection Act, 1986 is defined as:
(o)"service" means service of any description which is made avail-able to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"
14. The Complainants submitted that the Opposite Party failed give assured returns to the Complainant as per clause 15 and 16 of the agreement dated 08.06.2009. Therefore, we deem it appropriate to refer clause 15 and 16 of the agreement dated 08.06.2009 executed between the contesting parties:
Clause 15 ALLOWED PAGE 8 OF 13 CC/314/2016 DOD: 23.10.2024 CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS That it shall be the absolute discretion of the DEVELOPER to lease out the entire building/ a particular floor or any part thereof including the aforesaid cyber unit. The ALLOTTEE(S) hereby authorizes the DEVELOPER to finalize the lease for the cyber unit subject matter of this agreement. The DEVELOPER shall inform the ALLOTTEE(S) pertaining to terms and conditions of lease as settled with the LESSEE. The ALLOTTEE(S) shall not be entitled to lease the cyber unit without the consent of the DEVELOPER. The terms and conditions of lease negotiated by the DEVELOPER as aforesaid shall be final and binding upon the ALLOTTEE(S). In case the ALLOTEE(S) obstructs or neglects or commits any default in execution of necessary documents for creation of lease after the same has been finalized by the DEVELOPER, in that event the DEVELOPER shall have the right to purchase the aforesaid cyber Clause 16 That in the event of identification of LESSEE by the DEVELOPER as stated above, the period stipulated in this contract for delivery, of possession shall not apply. In such case the DEVELOPER shall not be bound to deliver physical possession of the cyber unit subject matter of this contract to the ALLOTTEE(S) and the ALLOTTEE(S) shall only be entitled to monthly rents to be paid by the LESSEE subject to execution of various documents by the ALLOTTEE(S) admitting and acknowledging the LESSEE to be tenant of the ALLOWED PAGE 9 OF 13 CC/314/2016 DOD: 23.10.2024 CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS cyber unit. In case the ALLOTTEE(S) commits default in execution of documents or refrains from admitting and acknowledging the LESSEE inducted by the DEVELOPER as tenant, in that event the ALLOTTEE(S) shall not be entitled to any rental and the DEVELOPER shall be entitled to appropriate the monthly rent till such time the needful is done by ALLOTTEE(S). The ALLOTTEE(S) shall not be entitled to stake any claim to the rental amount to realized and utilized by the DEVELOPER. In the event of failure on the part of ALLOTTEE(S) to accept the LESSEE inducted by the DEVELOPER as lawful tenant. the ALLOTTEE(S) shall be bound to accept refund of amounts paid by it to the DEVELOPER towards full and final satisfaction of consideration to be refunded back to the ALLOTTEE(S) and pursuant to refund the DEVELOPER shall be entitled to deal with, use, utilize and/ or alienate the cyber unit subject matter of this contract in any manner deemed fit by the DEVELOPER. This stipulation pertaining to creation of lease by the DEVELOPER with all its consequences set out above is the essence of this contract
15. It is clear from the clause 15 of the agreement dated 08.06.2009 that the it was absolute discretion of the Opposite Parties to lease out the entire building/ a particular floor or any part thereof including the aforesaid cyber unit.
16. Further clause 16 of the said agreement states that if the opposite parties identify a lessee, the timeline set in the contract for delivering possession to the Allotee's/ Complainants will no longer apply. In such a situation, ALLOWED PAGE 10 OF 13 CC/314/2016 DOD: 23.10.2024 CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS the Opposite Parties are not obligated to physically hand over possession of the cyber unit to the Allotees. Instead, the Allotees/Complainants will be entitled only to receive the monthly rent paid by the lessee, but this is subject to the Allotees/Complainants signing documents that formally acknowledge and accept the lessee as the tenant of the cyber unit.
17. Returning to the facts of the present case, the Opposite Party admitted in the para 4 of the written statement that the that there is slump in the real estate business and due to adverse circumstances the Orient Bestech business tower is lying vacant and prospective lessees are not coming forward to take the said premises on rent inspite of best effort made by the respondent. Therefore, it is clear neither the Opposite Party hand over the possession of the said office space to the Complainants nor they lease out the said office space. Consequently, the Opposite Party failed to perform its contractual liabilities under the agreement 08.06.2009.
18. Further, the Opposite Party contended that the said building is maintained by an agency engaged by the Opposite Parties; therefore, the Complainants are under a contractual obligation to pay the maintenance charges. However, it is evident from the record that due to the failure to rent out the said space as per clauses 15 and 16 of the agreement, the said office has remained vacant till date. Moreover, the Complainants neither received possession of the property in question nor the rental income they were entitled to if the property had been properly leased. Instead, they were only burdened with the obligation to pay maintenance charges.
Consequently, we are of the considered view that the Complainants are not liable to pay maintenance charges for the said office space, as it was the obligation of the Opposite Parties to rent out the premises but they miserable failed to do so. Therefore, the invoices bearing no.
ALLOWED PAGE 11 OF 13 CC/314/2016 DOD: 23.10.2024
CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS BSF/000123 for an amount of Rs. 42,135/-, BSF/000264 for an amount of Rs. 1,264,640/-, and BSF/000389 for an amount of Rs. 171,289/- sent by the Opposite Parties for maintenance are arbitrary and unjust. Hence the Complainant is not liable to pay same.
19. Furthermore, the Complainants submitted that the Opposite Parties are liable for an amount of Rs. 32,25,000/- as arrears of rent along with interest. However, we find no document on record, nor any clause in the agreement dated 08.06.2006, that establishes the Opposite Parties' liability to pay rent to the Complainants in the event they failed to lease out the premises. Moreover, as per clauses 15, 16, and 28 of the agreement dated 08.06.2009, the Opposite Parties were obligated to lease the premises to a lessee, after which the Complainants were supposed to receive rent from the lessee. Consequently, the Opposite Parties are not liable to pay any arrears of rent.
20. Relying on the above settled law, we hold that the Opposite Parties are deficient in providing its services to the Complainants as the Opposite Party had given false assurance to the Complainants with lease out the premises and had kept the hard-earned money of the Complainants.
21. Furthermore, it cannot be denied that the Complainants have suffered doubly in this situation. First, they invested a significant amount of money in this project for rental purposes, yet they neither received the rental income nor the return on their investment. Therefore, under these circumstances, the Complainants are entitled to compensation for the inordinate delay in handing over possession of the said premises.
22. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite party nos. 1 to 4 to hand over the vacant, physical and peaceful possession (Complete in all ALLOWED PAGE 12 OF 13 CC/314/2016 DOD: 23.10.2024 CAPT. RAJINDER SINGH SIDHU & ANR. VS. M/S BESTECH PVT. LTD. & ORS respect) of the IT/Cyber Space bearing no. 802 on the 8th floor within two months from the date of this judgment i.e., on or before 23.12.2024.
23. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party no.1 to 4 is directed to:
A. Rs. 3,00,000/- as compensation for delayed possession. B. Rs. 2,00,000/- as cost for mental agony and harassment to the Complainants; and C. The litigation cost to the extent of Rs. 50,000/-.
24. If the Opposite Parties have failed to comply with the directions within two months days from the date of this preset Judgment, the Complainants may approach this Commission under section 25 and 27 of the Consumer Protection Act, 1986.
25. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
26. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
27. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On: 23.10.2024 LR-ZA ALLOWED PAGE 13 OF 13