State Consumer Disputes Redressal Commission
1. Jaswant Singh vs The Shalimar Estates (P) Ltd., on 15 November, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 60 of 2013 Date of Institution : 26.08.2013 Date of Decision : 15/11/2013 1. Jaswant Singh son of Narain Singh, R/o H.No.33, Sector 27-A, Chandigarh, presently residing at H.No.64, Sector 17, Panchkula. 2. Manjit Kaur wife of Sh.Pritpal Singh, R/o Prime Rose No.1, Bus Stand, Shimla. 3. Ram Kaur wife of Gian Singh, R/o Prime Rose No.1, Bus Stand, Shimla Complainants V e r s u s The Shalimar Estates (P) Ltd., Corp. Office SCO 110-111, Sector 8-C, Chandigarh, through its Managing Director. .... Opposite Party Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER
Argued by: Sh. Ramandeep Singh Pandher, Advocate for the complainants.
Sh.
Arun Kumar, Advocate for the Opposite Party.
JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
The facts, in brief, are that the Opposite Party, in the year 2006, invited applications, for the allotment of commercial showrooms, at Shalimar Plaza, Site No.1, I.T. City, Mohali. In pursuance of the said invitation, Sh.Parminder Singh, s/o Sh.Jaswant Singh, and Mr.Mandeep Singh, s/o Sh. Prit Pal Singh, residents of House No.33, Sector 27-A, Chandigarh, in order to run their own business, for earning their livelihood, by way of self employment, applied for the allotment of a showroom, to the Opposite Party, in the year 2006. On 17.02.2006, Sh.Parminder Singh, s/o Sh.Jaswant Singh, and Mr.Mandeep Singh, s/o Sh. Prit Pal Singh, paid a sum of Rs.5,40,000/-, towards the registration amount/initial deposit of the showroom, and acknowledgment slip Annexure P-3 of the even date, was issued, in their favour. Acceptance-cum-demand letter dated 28.02.2006, in respect of registration for allotment of unit no.22, Category B, measuring 600 square feet, in the said project, was issued, in favour Sh.Parminder Singh, s/o Sh.Jaswant Singh, and Mr.Mandeep Singh, s/o Sh. Prit Pal Singh. Ultimately, this unit was allotted, in their favour. The total sale price of the said showroom was Rs.59,40,000/-. Thereafter, the aforesaid showroom was transferred by the Opposite Party, in favour of the complainants, namely Jaswant Singh son of Narain Singh, Manjit Kaur wife of Sh.Pritpal Singh, and Ram Kaur wife of Gian Singh, on the request of Sh.Parminder Singh, s/o Sh.Jaswant Singh, and Mr.Mandeep Singh, s/o Sh. Prit Pal Singh, the original allottees of the same (showroom), through letter no.SEPL/06/20043 dated 20.06.2006. It was stated that, thus, the complainants stepped into shoes of the original allottees, in respect of the showroom, in question, in which they wanted to run their own business, for earning their livelihood, by way of self employment. The Opposite Party promised to handover physical possession of the said showroom, to the complainants, within a period of two years, from the date of registration of allotment i.e. by 28.02.2008. It was further stated that the complainants, in total, deposited a sum of Rs.41,24,931/- (as per the receipts, on record), towards part price of the said showroom.
2. It was further stated that the complainants personally visited the office of the Opposite Party, and sought clarification, from it, about the schedule of completion of showroom and handing over of possession of the same, to them. It was further stated that, by the stipulated date i.e. 27.02.2008, no progress regarding the construction of showroom, had been made. In the meanwhile, the complainants came to know about a new advertisement, was issued by the Opposite Party, in a reputed newspaper, about the showrooms of the same shopping mall. As per that advertisement, the scheme commenced on 28.11.2006 and closed on 12.12.2006. According to this advertisement, a new time frame was fixed for handing over the possession of showroom, in question, by December 2008, instead of February 2008, which was earlier committed by the Opposite Party.
3. Another advertisement, by the Opposite Party, regarding the showrooms of the same shopping mall, appeared in a newspaper, in October 2007. As per that advertisement, the scheme commenced on 27.10.2007 and closed on 26.10.2007. According to this advertisement, in the newspaper, it was mentioned that the possession of showrooms would be handed over within the time period of two years i.e. by October 2009. It was further stated that though a period of two years, expired in February 2008, yet there was no sign of any construction, with regard to the showroom, at the site. The complainants sent letter dated 04.11.2009, to the Opposite Party, to apprise them, as to when, possession of the showroom would be handed over, but to no avail. It was further stated that even till the date of filing the complaint, no progress, in the construction of showrooms, had been made.
4. It was further stated that neither possession was delivered to the complainants upto 27.02.2008, nor the refund of amount was made. It was further stated that, thus, the Opposite Party, misled the complainants, that possession of the showroom shall be delivered to them, within two years, from the date of allotment i.e. by February 2008, and fleeced them of their hard earned money, to the tune of Rs.41,24,931/-, which came to be around more than 65%, of the total sale consideration, but failed to abide by the commitment. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to refund the amount of Rs.41,24,931/- alongwith interest @18% P.A. from the respective dates of deposits, till realization; pay compensation, to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation.
5. The Opposite Party, in its written version, admitted that the showroom, in question, was transferred by it (Opposite Party), in favour of the complainants namely Jaswant Singh son of Narain Singh, Manjit Kaur wife of Sh.Pritpal Singh, and Ram Kaur wife of Gian Singh, on the request of Sh.Parminder Singh, s/o Sh.Jaswant Singh, and Mr.Mandeep Singh, s/o Sh. Prit Pal Singh, the original allottees of the same (showroom), through letter no.SEPL/06/20043 dated 20.06.2006. It was pleaded that the complaint was not maintainable. It was further pleaded that the complainants did not fall within the definition of consumers, as they purchased the showroom, from the original allottees, referred to above, for commercial purpose, for carrying on commercial activities, on a large scale, with a view to earn huge profits. It was further pleaded that the complaint was not maintainable, as an Arbitration Clause, existed, in the terms and conditions, in respect of allotment of the showrooms-Annexure P-2, and, in case of any dispute, the matter was to be referred to the Arbitration. It was further pleaded that the complaint involved complicated and complex questions of fact and law, which required examination and cross-examination of the witnesses, and, as such, could not be adjudicated upon, by this Commission, the proceedings before which, are summary, in nature. It was admitted that an amount of Rs.41,24,931/- in all, was deposited by the complainants, towards part price of the showroom, in question. It was also admitted that acceptance-cum-demand letter dated 28.02.2006 was issued, in favour of the complainants. It was also admitted that possession of the showroom was to be delivered, within a period of two years i.e. upto 27.02.2008. It was stated that construction of the entire 10 storey building, including two basements, had already been completed, by the Opposite Party. It was further stated that all outer and inner walls, partitions, plasters, base flooring etc. etc., were also complete, and only finishing work and fittings of electrical and air conditioning works, were in progress. It was further stated that the completion of project, was delayed, as the other buyers, like the complainants, had not paid the due installments, due to which, the Opposite Party suffered a huge loss, as it had to pay penalty/compensation, to various customers, as per Condition No.12 of the terms and conditions, in respect of allotment of the showrooms-Annexure P-2.
6. It was further stated that the complainants only deposited part amount, towards the sale consideration and did not deposit the remaining amount, towards the price of showroom, in question, without any rhyme or reason. It was further stated that, in case of delay, the Opposite Party was liable to pay damages/penalty/compensation @ Rs.10/- per sq.feet per month, in terms of Condition No.12 of the terms and conditions, in respect of allotment of the said showroom, and it was ready and willing to pay the same, to the complainants. It was further stated that earlier complaints, filed by other complainants, were decided in their favour. It was further stated that, against those complaints, First Appeals No.11/2011, 12/2011, 13/2011, 14/2011 and 92/2011, were filed before the Hon`ble Supreme Court, wherein interim stay of the operation of the impugned order dated 28.09.2012 passed by the National Consumer Dispute Redressal Commission, New Delhi, was granted. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. The complainants, in support of their case, submitted their joint affidavit, by way of evidence, alongwith which, a number of documents were attached.
8. The Opposite Party, in support of its case, submitted the affidavit of Mr.R.K. Aggarwal, its Managing Director, by way of evidence, alongwith which, copy of the order of the Supreme Court of India, referred to above, was attached.
9. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, including written arguments, carefully.
10. The first question, that falls for consideration, is, as to whether, the complainants fall within the definition of consumers or not. It may be stated here, that the complainants, in their complaint, in clear-cut terms, stated that they had purchased the showroom, in question, for using the same, to earn their livelihood, by way of self employment. This fact was also corroborated by the complainants, in their joint affidavit, submitted by way of evidence. No evidence was produced by the Opposite Party, to the contrary, that the showroom, in question, was purchased by the complainants, with a view to give the same, by them, on rent, and not for the purpose of using the same, to earn their livelihood, by way of self-employment. Even, no evidence was produced by the Opposite Party, that the complainants being property dealers, were engaged in the sale and purchase of commercial properties, with an intention to gain huge profits. No evidence was also produced, by the Opposite Party, that the complainants were running any other commercial activity, on a large scale, and earning huge profits, therefrom. Under these circumstances, by no stretch of imagination, it could be said that the complainants did not fall within the definition of consumers. Such a plea, having been taken by the Opposite Party, in its written version, therefore, being devoid of merit, must fail, and the same stands rejected.
11. The next question, that arises for consideration, is, as to whether, the complaint under Section 17 of the Consumer Protection Act, is not maintainable, on account of the reason, that Arbitration Clause No.53, exists in the terms and conditions, for the allotment of commercial showrooms, in the said project. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is required to be made, which reads as under ;
3.Act not in derogation of any other law.
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
12. Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of Arbitration Clause No.53, in the document, aforesaid, would not oust the Jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. & another Vs N.K.Modi (1996) 6 SCC 385= III (1996) CPJ 1 (SC) and C.C.I. Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233= III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the Opposite Party, being devoid of merit, must fail, and the same stands rejected.
13. The next question, that falls for consideration, is, as to whether, complicated and complex questions of fact and law are involved, in this complaint, the adjudication whereof, is not possible, by this Commission, proceedings before which are summary, in nature. It may be stated here, that no complicated and complex questions of fact and law, are involved, in this complaint, the adjudication whereof is not possible by this Commission, though the proceedings before it are summary, in nature. It is a simple case of allotment of a showroom, and non-delivery of possession thereof, by the stipulated date. The complainants, claimed that they purchased the showroom, in the manner, referred to above, from the original allottees, and they deposited a sum of Rs.41,24,931/-, towards the part price thereof, but were not handed over the possession of the same, by the stipulated date i.e. on 28.02.2008, nor refunded the amount, when they asked for the same. These facts were admitted by the Opposite Party, in its written version, except that it was making out all efforts, to complete the project, in which the showroom was allotted to the complainants. As stated above, the complainants stepped into the shoes of the original allottees, in respect of the showroom, in question, the moment the same (showroom), was transferred by the Opposite Party, in their (complainants) favour, on the request of Sh.Parminder Singh, s/o Sh.Jaswant Singh, and Mr.Mandeep Singh, s/o Sh. Prit Pal Singh, the original allottees of the same (showroom), through letter no.SEPL/06/20043 dated 20.06.2006. It is a well settled principle of law, that the parties are governed by the terms and conditions, agreed to and signed by them. In the terms and conditions, in respect of the allotment of showroom, in question, it was clearly stated, as to what would be the consequences, if the delivery of possession of the same (showroom), was not made by the stipulated date. Under these circumstances, by no stretch of imagination, it could be said that complicated and complex questions of fact and law, are involved, in the instant complaint, which require examination and cross-examination of the witnesses, and analysis of voluminous evidence. In J.J. Merchant (Dr.) V. Shrinath Chaturvedi, IV (2002) SLT 714 =III (2002) CPJ 8 (SC) =2002 CTJ 757 (SC) (CP), the Hon`ble Supreme Court, held as under:-
This submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers, and that should not be curtailed, on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done, when some questions of fact are required to be dealt with or decided. The Act provides sufficient safeguards.
14.
In CCI Chambers Coop. Hsg. Society Ltd. V. Development Credit Bank Ltd. V (2003) SLT 185=III (2003) CPJ 9 (SC)=2003 CTJ 84 (SC) (CP), the Honble Supreme Court also held as under:-
It cannot be denied that Foras at the National Level, the State level and at the District level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the Fora established under the Act. These Foras have been established and conferred with the jurisdiction in addition to the conventional Courts. The principal object sought to be achieved by establishing such Foras is to relieve the conventional Courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the complicated and detailed procedure, which at times is accompanied by technicalities. Merely because reading of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved.
15.
The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The submission of the Counsel for the Opposite Party, in its written version, that since complicated and complex questions of fact and law are involved in this complaint, the adjudication whereof is not possible, by this Commission, proceedings before which are summary, in nature, thus, being devoid of merit, must fail, and the same stands rejected.
16. There is, no dispute, about the factum, that the complainants purchased a showroom, in the manner, referred to above, from the Opposite Party. There is also hardly any dispute, that the total amount of Rs.41,24,931/- on various dates, towards the part price of showroom, was deposited with the Opposite Party. Acceptance-cum-demand letter dated 28.02.2006, was issued, in favour of the complainants. As per Condition No. 12 of the terms and conditions, for the allotment of commercial showrooms, in the said project, possession of the showroom, in question, was to be given within two years, from the date of issuance of acceptance-cum-demand letter, subject to force majeure circumstances. It was admitted by the Opposite Party that the possession was to be delivered, on or before 28.02.2008. Admittedly, possession of the showroom has not even so far been delivered to the complainants. By not delivering possession of the showroom, within the period of two years i.e. upto 28.02.2008, and even till today, the Opposite Party misled the complainants, by making a false promise. The Opposite Party, was, thus, not only deficient, in rendering service, but also indulged into unfair trade practice.
17. No doubt, a period of two years, could be extended due to force majeure circumstances. It was for the Opposite Party, to clearly explain, in the written reply, as to what were those circumstances, which were beyond its control, as a result whereof, the construction of the showrooms, could not be completed, in time, and possession could not be delivered by 28.02.2008. In the written reply, the only plea taken up by the Opposite Party, was to the effect, that other buyers, like the complainants, of the showrooms, in the same project, did not make the payment of installments, in time, as a result whereof, there was delay in the completion of project. No evidence, in this regard was, however, produced by the Opposite Party. It may be stated here, that the complainants, in this case, have already deposited a huge amount of Rs.41,24,931/-, referred to above, towards the part price of showroom. When the complainants found that there was no progress, in the construction of project, at the site, it was not obligatory upon them, to pay the remaining installments, until a firm assurance had been held out to them, that the project would be completed, in the very near future. As stated above, till date, the project has not been completed, nor possession of the showroom has been delivered to the complainants. Since, the Opposite Party failed to adhere to the terms and conditions, for the allotment of commercial showrooms, in the said project, it could not blame the complainants, for not making the payment of remaining sale consideration/ installments. Since, the construction was not being undertaken, as per schedule, if the complainants did not pay the remaining installments, they could not be held responsible for delay, in the completion of project. The Opposite Party, therefore, failed to prove any circumstance, beyond its control, due to which the construction was delayed. In Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), no development work was carried out, at the site. Thus, the payment of further installments was stopped by the complainants. It was, under these circumstances, held that the builder could not be allowed to take shelter, under the agreement clause, to usurp the money, deposited by the complainants. It was further held that the builder cannot forfeit the entire money, paid by the complainants, on account of his own fault, in not carrying out the development work. Ultimately, the National Commission, ordered the refund of amount with interest. The principle of law, laid down, in Prasad Homes Private Limited`s case (supra), is fully applicable to the facts of the instant case. It is, therefore, held that the plea, referred to above, taken up by the Opposite Party, in the written reply, therefore, appears to be false. The said plea was taken up by it, just with a view to cover up its lapse, and to deny the refund of amount, claimed by the complainants. The submission of the Counsel for the Opposite Party, being devoid of merit, must fail, and the same is rejected.
18. The Counsel for the Opposite Party, submitted that the Opposite Party was ready to pay compensation @ Rs.10/- per sq. feet, per month of the super area, for the period of delay as per Condition No.12 of the terms and conditions, for the allotment of commercial showrooms, in the said project and, as such, the complainants were not entitled to the refund of amount, alongwith interest and compensation. The submission of the Counsel for the Opposite Party, does not appeal to reason. If compensation of Rs.10/- per sq. feet, per month of the super area, would justify the claim of the complainants, and no further relief is given that would give unnecessary advantage to the Opposite Party, because it may still neglect to raise construction for a number of years, by simply paying Rs.10/- per sq.ft. per month of the super area i.e. Rs.6000/- per month. The Opposite Party must be getting very high returns, on the amount of Rs.41,24,931/-
which was deposited with it, from time to time, by the complainants, by investing the same, in some business.
Even the modest interest @8% p.a., which the Opposite Party may be earning on Rs.41,24,931/-, comes to Rs.32,999/- per month i.e. much more than the amount, which it is ready to pay @ Rs.10/- per sq.feet, per month of the super area. This compensation might have been said to be sufficient, in case, the complainants had prayed for delivery of possession of the showroom. No prayer was made for delivery of possession. Even, at the time of arguments, the Counsel for the complainants, in clear-cut terms, submitted that the complainants only claimed refund of amount, with interest and compensation. The complainants are, thus, entitled to the refund of amount with interest @15% P.A., from the respective dates of deposits.
19. Although, a period of more than five and a half years from 28.02.2008, the date committed for handing over possession of the showroom, to the complainants, has lapsed, yet the construction is not complete. No doubt, the Counsel for the Opposite Party, submitted that the construction at the site, was in full swing. However, such a submission of the Counsel for the Opposite Party, cannot be taken into consideration. Such a plea may be another excuse, on the part of the Opposite Party, to delay the refund of hard earned money, already deposited with it, by the complainants.
20. The complainants were not only deprived of the use of their hard earned money, for a long time, which was deposited with the Opposite Party, but they also suffered a lot of mental agony and physical harassment, as till date not even a single penny, has been refunded by it, nor possession of the showroom has been delivered. For such physical harassment, mental agony and escalation in the price of showroom, the complainants are also entitled to compensation.
21. No other point, was urged, by the Counsel for the parties.
22. For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:-
(i) The Opposite Party is directed to refund Rs.41,24,931/-, deposited by the complainants, alongwith interest @ 15% p.a. from the respective dates of deposits, till realization..
(ii) The Opposite Party is further directed to pay compensation, in the sum of Rs.1.5 lacs, for causing mental agony and physical harassment to the complainants, by neither handing over possession of the showroom, by the committed date, nor refunding the amount.
(iii) The Opposite Party is further directed to pay, cost of litigation, to the tune of Rs.10,000/-, to the complainants.
(iv) The aforesaid directions, shall be complied with by the Opposite Party within a period of 45 days, from the date of receipt of a certified copy of the order, failing which, it shall be liable to pay the amount mentioned in clause (i) above, with penal interest @ 18% p.a., from the respective dates of deposits till realization and interest @15% P.A., on the amount mentioned in Clause (ii) above, from the date of filing the complaint, till realization, besides payment of cost of litigation.
23. Certified Copies of this order be sent to the parties, free of charge.
24. The file be consigned to Record Room, after completion.
Pronounced.
15/11/2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Rg.