State Consumer Disputes Redressal Commission
Harminder Kaur And Another vs C And C Towers Ltd. on 1 March, 2019
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No.684 of 2018
Date of Institution : 24.08.2018
Date of Reserve : 20.02.2019
Date of Decision : 01.03.2019
1. Harminder Kaur W/o Sh.Harminder Singh aged 45 years,
resident of H.No.2108, Basant Avenue, Near Dugri, Ludhiana,
Punjab-141013.
2. Amanjot Kaur W/o Sh.Preet Mohinder Singh, age 52 years,
resident H.No.2110, Basant Avenue Near Dugri, Ludhiana,
Punjab-141013.
....Complainants
Versus
1. C & C Towers Ltd., Site Office : C & C Towers, ISBT cum
Commercial Complex, Opposite Verka Milk Plant, Gate No.5,
Phase-6, (Sector 57), Mohali through its Managing Director/
Director/Manager/Authorized Representative.
2. C & C Towers Ltd., Corporate Head Office, Plot No.70, Sector
32, Gurgaon, Haryana-122001, through its Chairman/
Managing Director/ Director/ Manager/ Authorized
Representative.
3. Chairman / Managing Director/ Director/ Manager/ Authorized
Representative, C&C Towers Ltd., Site Office : C&C Towers,
ISBT-cum-Commercial Complex, Opposite Verka Milk Plant,
Gate No.5, Phase-6 (Sector -57), Mohali.
Alternate Address : C&C Towers Ltd., Corporate Office, Plot
No.70, Sector 32, Gurgaon, Haryana.
4. General Manager (Commercial) C&C Towers Ltd., Site Office :
C&C Towers, ISBT-cum-Commercial Complex, Opposite Verka
Milk Plant, Gate No.5, Phase-6 (Sector 57), Mohali.
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Mr.J.S.Klar, Presiding Judicial Member,
Mr.Rajinder Kumar Goyal, Member
Present:-
For the complainant : Sh.A.K.Batra, Advocate For the opposite parties : Sh.Rohit Mittal, Advocate Consumer Complaint No 684 of 2018 2 RAJINDER KUMAR GOYAL, MEMBER :
The complainants have filed this complaint, under section 17 of the Act for issuance of the following directions to the opposite parties:
I. to hand over the possession of the office space immediately and upon failure to refund a sum of Rs.8,09,200/- along with interest at the rate of 18% per annum from the date of its deposit till actual payment;
II. to pay a sum of Rs.3,50,000/- on account of mental agony, physical harassment, apart from financial loss;
III. to pay Rs.31,000/- as litigation expenses
IV. any other order, writ or direction which this Commission may
deem fit.
2. Brief facts, as set out in the complaint, are that the opposite parties made a number of assurances through various newspapers, marketing e-mails and telemarketing with regard to launching of their integrated project for modular office space in the commercial complex as part of Bus Terminal-cum-Commercial Complex, Sector 57, Mohali; having salient features as given in the brochure. The complainants being allured with the advertisement, applied to purchase a unit for the purpose of creating a source of livelihood by means of self-employment, as complainant No.2 is having qualification of Masters of Music and planned to run a music academy for music aspirants along with complainant No.1; who has experience in administration and management section. A sum of Rs.8,09,200/-
was paid by the complainants towards 35% cost of the office space Consumer Complaint No 684 of 2018 3 vide cheques No.777454, 777475, 777457, 777478. On 18.09.2012 and an allotment letter was issued to the complainants under the signature of opposite party No.4; wherein all the terms and conditions regarding construction and payment schedule. As per the allotment letter, the complainants were allotted Unit No.35, Tower-C, Floor 4th, having super area of 289 sq.ft. It is further averred that the opposite parties have not complied with the provisions of PAPRA Act, 1995. The construction was to be completed within 60 months (i.e. upto 15.12.2014) from the date of compliance i.e. 16.12.2009. The total cost of the space was fixed as Rs.23,12,000/-. The complainants opted for Construction Linked Plan'. As per the said plan, 20% was to be paid at the time of booking and 15% was to be paid at the time of allotment. Vide letter dated 07.03.2014, it was informed by the opposite parties that they were rescheduling the time and making Tower -A operational by December, 2014 and the space of the relocated in Tower-A. Vide letters dated 11.07.2017 and 28.07.2017, it was informed to the complainants that opposite party No.3 decided to pay interest at the rate of 8.8% on the deposited amounts from its receipt dated 31.08.2016. Thereafter, on 18.09.2017, opposite party No.1 sent a letter along with performa of addendum for getting the signatures of the complainants, as an addendum to the letter of allotment for obtaining consent in writing from the complainants. On this, the husband of complainant No.2 wrote joint letter seeking refund of the amount on account of non-compliance of the agreement. The complainants approached the opposite parties to do the needful. Vide letter dated 06.06.2018, opposite party No.3 sent Consumer Complaint No 684 of 2018 4 another letter requesting for extension of time till 30.09.2018 for fulfilling his promises as mentioned in letter dated 21.11.2017. Alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainants sought above mentioned reliefs against the opposite parties.
3. Upon notice, the opposite parties appeared and filed written statement, raising certain preliminary objections that the complaint is not maintainable; as the subject matter of the present complaint is outside the pecuniary jurisdiction of this Commission, as per the Act. The complainants have demanded refund of Rs.8,09,200/- along with interest at the rate of 18% per annum and compensation of Rs.3,50,000/- and litigation expenses of Rs.31,000/-, which is less than Rs.20 lacs. The complainants do not fall within the definition of consumer as defined under 2(1)(d)(ii) Act, as he purchased the unit, in question for commercial purposes and not for residential purposes. Moreover, they have no intention to use the unit for earning livelihood by way of self-employment or for personally using the same. In the application for transfer of allotment submitted by the complainants, there is a specific column asking the complainant to disclose his profession, wherein they have not mentioned anything that they are in the business/profession relating to Music. The opposite parties have referred to a judgment Sahil Chaudhary Vs. Bhasin Infotech and Infrastructure Pvt. Ltd., CC No.1924 of 2016; wherein it has been held that a person who is already earning his livelihood cannot be said to be a 'consumer'. As per the terms and conditions of the allotment letter, the entire money deposited by the complainant is Consumer Complaint No 684 of 2018 5 liable to be forfeited. The complainant has suppressed the material facts. As per Clause 1.24, Dispute Resolution, the complainant has agreed that in case of any dispute or controversy arising between the parties can only be settled by way of arbitration and accordingly, the matter is required to be referred to the arbitration for settlement. The complainant is to be governed by Clause 1.2.1 of the allotment and certain amounts are to be forfeited automatically. As per clause 1.2.2, a buyer is entitled to request for cancellation of the allotment, whereupon the Licensor has the option to accept such request in which the buyer is entitled to a refund of 50% of the amount paid by him without any interest as a full and final settlement of all inter se claims between the parties. Further, as per Clause 1.3.3 of the Allotment letter stating therein that opposite parties are not bound to complete the construction within 60 months nor the provisional allottees shall be entitled to receive any interest on delay. It is further pleaded that the opposite parties do not require a license from the GMADA, since it has executed a Concession Agreement dated 15.04.2009 for the development of the complex on a design/build/operate and transfer basis with GMADA, the State Government of Punjab through the State Department and the PIDB. It is further pleaded that in terms of the said concession agreement; the opposite parties had been allotted the project site in Sector 57, Mohali and a Project Site Lease for a period of 90 years was executed. In fact, it is an admitted fact that the main Bus Terminus was inaugurated by the then Deputy Chief Minister of Punjab on 16.11.2016, which proves that the opposite parties had the requisite Consumer Complaint No 684 of 2018 6 approvals for the construction of the complex. This Commission has no jurisdiction to entertain and decide the complainant; as intricate questions of law and facts are involved. Opposite party No.3 has been incorrectly arrayed as a party in the instant case as there is no specific role which has been attributed to him. On merits, similar pleas, as raised in preliminary objections, have been reiterated. Allotment of the space, in question, in favour of the complainant is admitted. It is further pleaded that the opposite parties are undertaking construction work in accordance with the permissible construction as per sanctioned building plans and in compliance of Municipal Laws, which are regulating the said construction. Due to numerous variations including but not limited to changes in the layout plans and designs of the project of the State Government, the construction of the project has been delayed and is beyond control. Such like joint ventures wherein there is a public private partnership, it is not possible to fix a date for completion as there is Government intervention and role play. Denying all other averments made in the complaint, a prayer for dismissal of the complaint has been made.
4. To prove their claim, the complainants have filed the affidavit along with documents as Ex.C-1 to Ex.C-16.
5. Opposite parties have filed the affidavit of Arunav Pankaj, Authorised Signatory along with documents Ex.OP-1 to Ex.OP-17.
6. We have heard the learned counsel for both the sides and have carefully gone through the records of the case.
7. Learned counsel for the complainants vehemently contended that the complainants are not in the business of sale and purchase of Consumer Complaint No 684 of 2018 7 the properties. The complainants purchased the space, in question, just for earning the livelihood by way of self-employment. Therefore, the complainants duly fall under the definition of 'consumer' as defined under Section 2(1)(d)(ii) of the C.P.Act. Moreover, the opposite parties failed to prove that the unit, in question was purchased by them for generating profits. It is further contended that as per clause 1.3.3 of the allotment letter dated 18.09.2012; the construction of the unit was to be completed within 60 months from the date of start of lease period after all necessary approvals and sanctions have been obtained subject however to force majeure circumstances and reasons beyond the control of the Concessionaire/Licensor. The opposite parties received a sum of Rs.8,09,200/- from them. However, the opposite parties failed to complete the project in question, within the said stipulated period, without disclosing any cogent reasons. No development work was carried out at the site by the opposite parties. The complainants came to know from the newspapers that the agreement between the opposite parties and GMADA has been cancelled and apprehended safety of their financial interest. The opposite parties committed deficiency in service and unfair trade practice, by not honouring their commitments, as per the allotment letter. Accordingly, it has been contended that the complaint be allowed in favour of the complainant.
8. Per contra, learned counsel for the opposite parties has contended that the commercial space, in question, was purchased by the complainant for commercial purpose and they purchased the same for earning profits solely. They failed to prove that they Consumer Complaint No 684 of 2018 8 purchased the said unit for their exclusively earning livelihood by way of self-employment. The complainants have also failed to prove the relationship between each of them. Thus, the complaint is liable to be dismissed on this score alone. This Commission has no pecuniary and territorial jurisdiction to entertain the complaint. As per Clause 1.24, Dispute Resolution, the matter is required to be referred to the Arbitrator. In the present complaint; intricate questions of law and facts are involved, which requires detailed evidence, accordingly, the matter be referred to Civil Court for decision. The complainants have not made the payments as per the payment schedule regularly. It is further contended that the agreement between the opposite parties and GMADA was not cancelled and the newspaper articles to this effect are unsubstantiated. The said cancellation has never been enforced nor the licence have been terminated till date. It is further contended that the main bus terminus has been inaugurated by the Deputy Chief Minister of Punjab on 16.11.2016. The construction work is going on in full swing, as per the sanctioned building plans and in compliance of the Municipal laws, regulating the construction. The delay in construction/completion of the project was due to the delay on the part of GMADA to approve the drawings and designs of the project. It is further contended that Partial Occupation/ Use of Block-A, Basement-1, Basement-2, Lower Ground Floor, Ground Floor & First Floor, wherein Bus Terminus was situated was issued by GMADA, vide Memo No.GMADA.S.D.O.(B)/2016/56140 dated 15.12.2016. The project, in question, is a Develop, Build, Operate, Transfer (DBOT) basis and has all the necessary approvals, license Consumer Complaint No 684 of 2018 9 from the Government as well as the competent authorities. There is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.
9. We have given our thoughtful consideration to the respective contentions raised by learned counsel for the parties.
10. Before discussing the case on merits, the objection raised by the opposite parties is that the complainants are not consumers and there is no relationship between each other and the commercial space booked by the complainants is for speculative purposes. In this regard, we have perused the record, it is admitted that the complainants were allotted a Modular Office Space vide allotment letter dated 18.09.2012, Ex.C-8 in the joint name. In the complaint, the complainants pleaded that complainant no.2 is having qualification of Masters in Music and wants to run a music academy for music aspirants whereas complainant No.1 has got experience in administration and management. The complainants in their complaint have failed to co-relate that with different qualifications; how they would be able to use the space as the qualifications of both the parties are different from each other. Also, there is no blood relation between the complainants. Moreover, no application for filing the joint complaint by mentioning any cogent reason was filed, which is against the provisions of Section 12(c) of the CP Act. The relevant Section 12(c) is reproduced hereunder:-
"12. Manner in which complaint shall be made - (1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by -Consumer Complaint No 684 of 2018 10
XX XX XX XX XX XX
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested;"
11. In the absence of any cogent reasoning that how they are co- related to each other and what would be the purpose of purchasing the modular space by both the complainants and how they fall within the definition of consumer of the opposite parties by purchasing unit on joint names, where the complainants have no blood relation, complaint is not maintainable. They are held to be not consumers.
12. Sequel to the above, the complaint filed by the complainants is dismissed being not maintainable.
(J.S.KLAR) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER March 01, 2019 parmod