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[Cites 7, Cited by 3]

State Consumer Disputes Redressal Commission

Harpreet Singh vs C And C Towers on 3 April, 2019

                                         FIRST ADDITIONAL BENCH

  STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
   PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

           Consumer Complaint No.288 of 2018
                                   Date of Institution: 13.04.2018
                                   Order reserved on: 27.03.2019
                                   Date of Decision : 03.04.2019

Harpreet Singh s/o Satnam Singh, R/o Vill. Badinpur, The Amloh,
P.O. Mandi Gobindgarh, District Fatehgarh Sahib.
                                                       .....Complainant
                               Versus
C & C Towers Limited, ISBT cum Commercial Complex, opposite
Verka Milk Plant, Phase-VI, Mohali-160055, Punjab, through its
Managing Director/Chairman Gurjeet Singh Johar.

Alternate address: C&C Towers Limited, Plot No.70, Industrial
Sector-32, Gurgaon-122001 Haryana through its Chairman/MD
Gurjeet Singh Johar.

                                                     .....Opposite Party
                              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 complainant : Sh. Sarthak Gupta, Advocate For the opposite party : Sh. Rohit Mittal, Advocate .................................................................................. Consumer Complaint No.288 of 2018 2
AND
2) Consumer Complaint No.289 of 2018 Date of Institution: 13.04.2018 Order reserved on: 27.03.2019 Date of Decision : 03.04.2019
1. Parsin Kaur, wife of Balkar Singh, R/o 650, S.S.T Nagar, Patiala.
2. Ranjit Singh s/o Balkar Singh, R/o 650, S.S.T. Nagar, Patiala.

.....Complainants Versus C & C Towers Limited, ISBT cum Commercial Complex, opposite Verka Milk Plant, Phase-VI, Mohali-160055, Punjab, through its Managing Director/Chairman Gurjeet Singh Johar. Alternate address: C&C Towers Limited, Plot No.70, Industrial Sector-32, Gurgaon-122001 Haryana through its Chairman/MD Gurjeet Singh Johar.

.....Opposite Party 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. Sarthak Gupta, Advocate For the opposite party : Sh. Rohit Mittal, Advocate .................................................................................. Consumer Complaint No.288 of 2018 3 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
By this common judgment, we intend to dispose of above referred two complaints together, as they have arisen out of common controversy. The order shall be pronounced by us in main complaint no.288 of 2018 titled as "Harpreet Singh Vs. C & C Towers Limited".
Facts of Complaint No.288 of 2018:
2. Complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite party (OP) on the averments that OP had given advertisement of its real estate project known as "C & C Towers"
situated at Mohali in the year 2009. He applied for allotment of unit no.19, floor 9th, Tower C in the above project of OP, exclusively for the purpose of his source of livelihood by means of his self employment to OP on 09.07.2010. He paid booking amount of Rs.Five Lakh, through cheque dated 12.07.2010 to OP. The OP raised demand notice on 21.08.2010, vide Annexure C-1. Thereafter, he paid Rs.40,000/- and Rs.17,750/- to OP through demand drafts on 01.10.2010 and he also further paid an amount of Rs.4,80,000/- in cash to OP on 01.10.2010, vide Annexure C-3 (colly). Letter of allotment was also issued to him on 24.11.2010, Consumer Complaint No.288 of 2018 4 vide Annexure C-2 by OP and the total cost of unit is Rs.29,65,000/- of the total area of the unit i.e. 593 square feet (Rs.5000/- per square feet). It is further averred that at the time of booking, it was promised by OP to him that possession of the unit would be handed to him within 30 months from the date of allotment and OP further assured that project would be completed before 16 December 2013, as per terms and conditions of the Concession Agreement executed between OP and GMADA and in case of failure, interest would be paid to him on his deposited amounts on account of delay, as per clause 1.3.3 of allotment letter. Neither OP developed the above project till the end of 2013 nor it paid interest on the deposited amounts to him for the period of delay in handing over the possession of the allotted unit. He received letter dated 07.05.2015 from OP to the effect that construction of the project would restart by July 2015 and the project would be completed by the mid of year 2017, but to no effect. Vide letter dated 13.07.2017, OPs compelled him to sign and to give an undertaking of occurrence to extend the construction time line by three years commencing from September 2016 to August 2019 and it further tried to amend the terms of the agreement. The OP was also in dispute with GMADA Consumer Complaint No.288 of 2018 5 with regard to above project. He has alleged deficiency in service and unfair trade practice on the part of OP. He prayed that OPs be directed to refund the amount of Rs.10,37,750/- with interest @12% per annum, further to pay Rs.1,50,000/- as compensation for mental harassment and deficient in service and Rs.25,000/- as litigation expenses.

3. Upon notice, OP appeared and filed written reply by raising preliminary objections that complainant has illegally inflated his claim for refund of the amount of Rs.10,37,750/-, but actually he paid the amount of Rs.5,57,750/- only to it, as per his receipts placed on record. The OP has questioned the competence of pecuniary jurisdiction of this Commission to entertain the complaint. The disputed property is a commercial space, which was allotted to complainant and he is not consumer of OP, as he purchased it for commercial purposes to earn profits only. Due to bearish real estate market, he now seeks to back out of his investment in this case. There is no time scheduled for mandatory completion of construction of the project in the allotment letter Annexure C-2. The OP began construction and developed substantial parts of the project in question. The OP had to stop the construction in the month of January 2010 to make Consumer Complaint No.288 of 2018 6 necessary changes on multiple times until 04.04.2011, when the revised plan, designs were finally approved and various revised plan designs were prepared for approval and each time, some changes were to be directed in the same by the Government and GMADA. Due to rainfall in the intervening night on 6th & 7th September 2011, some constructed portion of tower C of OPs collapsed, which further caused set back to the construction process in the project. There remained non-availability of raw material and construction material in the market, due to governmental ban on sand mining in Punjab in the year 2012. The OPs controverted the averments of complainant even on merits in the written reply on the above referred grounds and prayed for dismissal of the complaint.

4. The complainant tendered in evidence copies of documents Ex.C-1 to Ex.C-10 alongwith his affidavit Ex.C-A and closed the evidence. As against it, OPs tendered in evidence affidavit of Arunav Pankaj authorized signatory Ex.OP-A with documents Ex.OP-1 to Ex.OP-18 and closed the evidence. Facts of Complaint No.289 of 2018:

5. The complainants filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against Consumer Complaint No.288 of 2018 7 opposite party (OP) on the averments that OP had given advertisement of its real estate project known as "C & C Towers"

situated at Mohali in the year 2009. They applied for allotment of unit no.14, floor 10th, Tower C in the above project of OP, exclusively for the purpose of their source of livelihood by means of their self employment on 20.07.2010. They paid booking amount of Rs.Six Lakh, through cheque dated 23.07.2010 to OP. The OP raised demand notice on 21.08.2010 vide Annexure C-1. Thereafter, they paid Rs.4,00,000/- through cheque dated 23.07.2010 and they also paid an amount of Rs.5,20,200/- through cheque to OP on 01.10.2010 and Rs.11,40,150 was also paid by them to OP in cash. The receipts are Annexure C-3 (colly). Letter of allotment was also issued to them on 24.11.2010, vide Annexure C-2 by OP and the total cost of unit is Rs.76,01,000/- for the total area of the unit i.e. 1382 square feet (Rs.5500/- per square feet). It is further averred that at the time of booking, it was promised by OP to them that possession of the unit would be handed to them within 30 months of the date of allotment and OP further assured that project would be completed before 16 December 2013, as per terms and conditions of the Concession Agreement executed between OP and GMADA and Consumer Complaint No.288 of 2018 8 in case of failure, interest would be paid to them on their deposited amounts on account of delay, as per clause 1.3.3 of allotment letter. Neither OP developed the above project till the end of 2013 nor it paid interest on the deposited amounts to them for the period of delay in handing over the possession of the allotted unit. They received letter dated 07.05.2015 from OP to the effect that construction of the project would restart by July 2015 and the project would be completed by the mid of year 2017 by it, but to no effect. Vide letter dated 13.07.2017, OPs compelled complainants to sign and to give undertaking of occurrence to extend the construction time line by three years more commencing from September 2016 to August 2019 and it further tried to amend the terms of the agreement. The OP was also in dispute with GMADA over this project. The complainants alleged deficiency in service and unfair trade practice on the part of OPs.

They prayed that OP be directed to refund the amount of Rs.26,60,350/- with interest @12% per annum, further to pay Rs.1,50,000/- as compensation for mental harassment and deficiency in service and Rs.25,000/- as litigation expenses.

6. Upon notice, OP appeared and filed written reply by raising preliminary objections that complainants illegally inflated Consumer Complaint No.288 of 2018 9 their claim to refund the amount of Rs.26,60,350/-, but actually they paid the amount of Rs.15,20,200/- to OP, as per their receipts placed on record. The OP has questioned the competence of pecuniary jurisdiction of this Commission to try the complaint. The disputed property is a commercial space, which was allotted to complainants and they are not consumers of OP, as they purchased it for commercial purposes to earn profits only. Due to slump in the real estate market, they are now seeking to back out of their investments. There is no time fixed for mandatory completion of construction of the project in the allotment letter Annexure C-2 by OP. The OP began construction and developed substantial part of the project in question. The OP had to stop the construction in the month of January 2010 to make necessary changes on multiple times until 04.04.2011, when the revised plan, designs were finally approved and various revised plan designs were prepared for approval and each time, some changes were to be directed effected in the same by the Government and GMADA. Due to torrential rainfall in the intervening night on 6th & 7th September, 2011, some constructed portion of tower C of OP was collapsed, which further caused set back to the construction process. There was non-availability of raw material and Consumer Complaint No.288 of 2018 10 construction material due to governmental ban imposed on sand mining in Punjab in the year 2012. 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.

7. The complainants tendered in evidence copies of documents Ex.C-1 to Ex.C-11 and affidavit of Ranjit Singh complainant no.2 Ex.C-A and closed the evidence. As against it, OPs tendered in evidence affidavit of Arunav Pankaj, authorized signatory Ex.OP-A alongwith copies of documents Ex.OP-1 to Ex.OP-21 and closed the evidence.

Main Order:

8. 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 OP is that this Commission has no pecuniary jurisdiction to try the complaint, because complainants deposited the less amount than alleged amounts, hence the value of the subject matter in these cases is less than Rs.20,00,000/-. We find no force in this submission, as raised by counsel for OP. The total cost of the units are Rs.29,65,000/- and Rs.76,01,000/- Consumer Complaint No.288 of 2018 11 respectively, which is in far excess of Rs.Twenty Lakh. The contention of OP is not accepted and this point is ruled in favour of complainants by holding that this Commission has necessary pecuniary jurisdiction to try the complaints.

9. The next point as strongly agitated by counsel for OP is that complainants are not proved to be consumers in this case of OP, in as much as they have invested the amounts in commercial project just to generate profits solely. The OP has failed to adduced on record any evidence to the effect that complainants are either property dealers or they are doing business of sale purchase of real estate for generating profits only. The emphasis has been laid on this point by counsel for OP, 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 argued that complainants specifically pleaded in complaints that they purchased the units in question for the purpose of earning their source of livelihood by means of self employment. The complainants further pleaded and deposed above averments in their respective affidavits as well on the record. It is settled principle of law that a person can either do the work himself or with the assistance of his family members and it Consumer Complaint No.288 of 2018 12 would certainly be covered within the definition of self employment, as given in the explanation under Section 2(1)(d) of the C.P. Act. Undoubtedly, it is a commercial project, but complainants specifically pleaded and proved in their respective affidavits on record that they purchased the units for their self employment to earn their livelihood. The OP failed to rebut this evidence of complainants and OP has also failed to prove on record that they deal in sale and purchase of real property and other properties also and traded it for the sake of generating profits. The OP has also failed to rebut on record by leading any cogent evidence to the effect that complainants purchased some other properties in other projects as well for generating profits. Herein, the explanation of Section 2(1)(d) of the C.P. Act permits the purchase of commercial goods or hiring of commercial services, if they are required by the purchaser or hirer exclusively for the purpose of exclusively earning the livelihood by means of self employment. The counsel for OP relied upon judgments of this Commission in C.C. No.360 of 2018, titled as "Paramjit Kaur & another Vs. C&C Towers Limited & others", decided on 19.11.2018 and C.C. No.355 of 2018 titled as "Mr. Ramanjeet Singh Vs. C&C Towers Limited & others", decided on 15.11.2018, Consumer Complaint No.288 of 2018 13 wherein the complaints of the complainants were dismissed, as the complainants therein were already gainfully employed. These authorities are not applicable in these complaints due to different facts, as OP failed to prove that complainants are gainfully employed with sufficient income or they are property dealers dealing in sale and purchase of properties and they purchased the spaces for speculative purposes. In this view of the matter, the complainants are held to be consumers of OP in both the above referred complaints.

10. The next controversy involved in the cases is whether the complainants are entitled to refund of the amounts on account of deficiency in service and unfair trade practice of OP in its failure to deliver the possession of the allotted units on time. Ex.C-1 is the copy of demand notice dated 21.08.2010 issued by OP to complainant raising the demand of Rs.5,37,750/- payable on 15.09.210. In this demand notice, OP admitted the receipt of payment of Rs.Five Lakh from complainant. Ex.C-2 is the copy of allotment letter dated 24.11.2010 allotting unit no.19, 9th floor, super area of 593 square feet, type office space to complainant. The OP undertook to complete the construction of the unit within 30 months from the date of start of its lease period, as per clause Consumer Complaint No.288 of 2018 14 1.3.5 of allotment letter Ex.C-2 in main complaint. The complainant alleged that OP has not completed the construction of the unit nor developed the project in question. No force majeure circumstances have been established beyond any shadow of doubt by OP on its part in this case, justifying the extension of time in completion of the project. Ex.C-3 (colly) are the copy of the provisional receipt of Rs.Five Lakh paid by complainant to OP issued by OP on 23.07.2010, Rs.40,000/- dated 06.05.2014. Ex.C-4 is the copy of payment detail of the commercial office space, Ex.C-5 is the copy of payment plan A-construction linked plan. Ex.C-6 is copy of letter dated 13.09.2017 issued by OP to complainant for obtaining his consent in writing to execute addendum. Ex.C-7 is the copy of representation by some of the allottees dated 07.10.2017 regarding refund of their deposited amounts due to non compliance of agreement executed between OP and Government of Punjab for executing the Mohali Junction ISBT Project under Public-Private Partnership Mode. Ex.C-8 (colly) are the copies of complaints moved against OP to S.S.P., Mohali by other allottees. Ex.C-9 and C-10 are copies of emails addressed to DGP Punjab regarding cheating and fraud committed by OP with innocent buyers/people. To rebut the Consumer Complaint No.288 of 2018 15 evidence of complainant, OP relied upon affidavit of Arunav Pankaj authorized signatory of OP in support of its case. This witness has denied any deficiency in service and unfair trade practice on the part of OP. Ex.OP-1 is the copy of resolution passed by the Board of Directors of OP company in favour of Arunav Pankaj, AGM Legal to pursue the case in defence. Ex.OP- 1/2 is the of application form of complainant regarding allotting the above unit. Ex.OP-1/3 is the copy of notice of award sent by PIDB to OP company regarding development of Bus Terminal-cum- Commercial Complex at Mohali under PPP format. Ex.OP-1/4 is the copy of concession agreement for development of bus terminal-cum-commercial complex at Mohali executed between GMADA, OP company, State Transport Government of Punjab and Punjab Infrastructure Development Board on 15.04.2009. Ex.OP1/5 is the copy of project site lease deed executed on 13.08.2009 for 90 years. Ex.OP1/6 is the copy of approval of proposal plan/revised plan of above project dated 27.01.2010. Ex.OP-1/7 is the copy of NOC from NHAI to OP company dated 29.12.2010. Ex.OP-1/8 is the copy of approval for starting the construction of above project from GMADA to OP dated 04.04.2011. Ex.OP-1/9 is the copy of weather report dated Consumer Complaint No.288 of 2018 16 3.9.2011, 6.9.2011, 7.9.2011 and 8.9.2011. Ex.OP-1/10 is the copy of Status Report of DBTCC Mohali. Mark OP-A and OP-B are the copies of news paper cuttings regarding clearing the auction of mines in five Punjab Districts by High Court and imposing fine on company for delay of five years. Ex.OP-1/11 is the copy of certificate issued by OP company regarding compliance of above. Ex.OP-1/12 is the copy of environment clearance dated 29.10.2009 by State Level Environment Impact Assessment Authority, Punjab to OP. Ex.OP-1/13 is the copy of No Objection Certificate by Pollution Control Board Punjab to OP company regarding above project with terms and conditions forming part of it. Ex.OP-1/14 is the copy of no objection for withdrawal of ground water issued by Central Ground Water Authority, Ministry of Water Resources, Government of India to OP dated 06.07.2009. Ex.OP-1/15 is the copy of NOC issued by PSPCL to OP company. Ex.OP-1/16 is the copy of certification regarding licence of construction. Ex.OP-1/17 is the copy of partial occupation certificate by GMADA to OP company for block A, basement-1, basement-2, lower ground floor, ground floor and first floor only. Ex.OP-1/18 is the copy of ledger report. The OPs relied upon above referred evidence regarding delay in the project Consumer Complaint No.288 of 2018 17 and in completing the construction work by them in scheduled time.

11. The OP received the payment of Rs.Five Lakh from complainant vide Ex.C-3 dated 23.07.2010 without having permissions/approvals from the competent authority regarding development of the above project in question, which fact is evident from Ex.OP-1/7, the copy of letter from GMADA to OP with direction to submit the revised plan as well as complete drawings. Vide Ex.OP-1/8 GMADA passed the revised plan of OP on 04.04.2011, which is unfair trade practice on the part of OP. The OP relied upon Ex.OP-10, 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 OP further relied upon weather report Ex.OP-9 for the dates 06.09.2011, 07.09.2011 and 08.09.2011. These are for just for three days and above documents are not sufficient to explain the delay in construction/development on the part of OP. The OP relied upon Ex.OP-17, 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 Section 14 of PAPRA Act, 1995. Consumer Complaint No.288 of 2018 18 The OP failed to produce on record any photographs regarding development of the project made by it. We are of the view that OP failed to comply with clause 1.3.5 of allotment letter C-2. 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 scheduled time and receiving the payments from complainants without holding permissions and approvals from the competent authorities.

12. The counsel of OP further contended that complainant in complaint no.289 of 2018 prayed for refund of exaggerated amount of Rs.26,60,350/- with interest, which has not been deposited by them with it. We have perused the receipts Ex.C-3 (colly) i.e. receipt dated 06.05.2014 of Rs.5,20,200/-, receipt of Rs.Four lakh and receipts of Rs.Six Lakh dated 19.07.2010 and total sum of these receipts comes to Rs.15,20,200. The counsel for the complainant contended that the amount of Rs.11,40,150/- has been paid by complainants to OP in cash, but we find no receipt on record with regard to deposit of this particular amount with OP. Similarly, in complaint no.288 of 2018, the complainant prayed for refund of deposited amount of Rs.10,37,750/- with interest and the counsel for OP contended that he actually Consumer Complaint No.288 of 2018 19 deposited only Rs.5,57,750/-, as per his receipts. We have perused receipts Ex.C-3(colly) placed on record by complainant i.e. for Rs.Five Lakh dated 23.07.2010 and receipt dated 06.05.2014 for deposit of Rs.40,000/- and Rs.17,750/- and total amount of these receipts comes to Rs.5,57,750/- only. The counsel for complainant contended that complainant paid the amount of Rs.4,80,000/- to OP in cash. But no receipt is placed on record by complainant with regard to deposit of this amount with OP nor it has been shown to us at the time of arguments of the case.

Complaint No.288 of 2018

13. As a result of our above discussion, we accept the complaint of the complainant with following directions to OPs:

(i) OP is directed to refund the entire deposited amounts to complainant with interest @12% per annum from the date of their respective deposits till actual payment.
(ii) The complainant is also held entitled to composite amount of compensation of Rs.50,000/- for mental harassment and litigation expenses payable by OP to him.

The above amounts shall be payable by OP to complainant within 45 days from the date of receipt of copies of this order. Consumer Complaint No.288 of 2018 20 Complaint No.289 of 2018

14. As a result of our above discussion, we accept this complaint of the complainants with following directions to OP:

(i) OP is directed to refund the entire deposited amounts to the complainants with interest @12% per annum from the date of their respective deposits till actual payment.
(ii) The complainant is also held entitled to composite amount of compensation of Rs.50,000/- for mental harassment and litigation expenses payable by OP.

The above amounts shall be payable by OP to complainants within 45 days from the date of receipt of copies of this order.

15. Arguments in these complaints were heard on 27.03.2019 and the orders were reserved. The certified copies of the orders be communicated to the parties, as per rules.

16. The complaints 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 03, 2019.

(MM)