State Consumer Disputes Redressal Commission
A.S. Instant Reservation Network (P) ... vs Vipul Ltd. on 5 February, 2018
Daily Order IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Dates of Arguments: 05.02.18 Date of Decision: 12.02.18 Complaint No.253/2012 In the matter of: M/s A.S.Instant Reservation Networks Pvt. Ltd. 2-4, Ground Floor Gagandeep, 12, Rajendra Place New Delhi-110008. .....Complainant Versus M/s Vipul Ltd. Through its Managing Director Regus Rectangle, Level 4 Rectangle 1, D 4, Commercial Complex Saket, New Delhi- 110017. ....Opposite Party/ Respondent C ORAM Hon'ble Sh. O.P.Gupta, Member(Judicial) Hon'ble Sh. Anil Srivastava, Member
1.Whether reporters of local newspaper be allowed to see the judgment? Yes/No
2. To be referred to the reporter or not? Yes/No SHRI O.P. GUPTA(MEMBER JUDICIAL) JUDGEMENT The complaint is based on the allegation that complainant is a corporate body registered with Registrar of Companies, it is in the business of travel technology. The Board of Directors passed a resolution on 12.07.12 authorising Shri B.Chatterjee, Director to file complaint. It is running office from tenanted premises at 2-4, Ground Floor, Gagandeep 12, Rajendra Place. New Delhi. As the rent was getting costlier day by day, complainant was interested in purchasing office space in the year 2007.
2. Initially M/s Devinder Gupta & Sons Realtors was allotted the office space no. 211, measuring 1588 sq. ft. in Vipul World Commercial, Sohna Road, Gurgaon, Haryana. On 18.09.07 said company agreed to sell the office space to complainant. Complainant paid Rs. 10,00,000/- as advance money, as per agreement to sell the sale value was Rs. 91,24,822/- . The transfer was endorsed on 8 October 2007 by OP in the name of complainant. The OP assured to complete transfer and hand over possession maximum within period of three years. The complainant paid total amount of Rs. 35,25,306/-. On 29.07.09 OP issued letter demanding Rs. 6,36,716/- on account of excavation charges which was paid by the complainant on 26.06.09. Complainant received letter informing that there was undue delay in construction of the project and informed that builder buyer agreement would be dispatched for execution in 3rd week of July 2009. On 20.08.09 the name of the project was changed from Vipul World Commercial to Vipul Business Park in Sector 48, Gurgaon, Haryana. Allotment letter was issued in which area was reduced to 1575 sq. ft. The total sale consideration was Rs. 90,50,123/- .
3. Complainant received letter on 31.03.10 from OP that buyer agreement was enclosed therewith. Complainant signed the same and submitted to OP. The agreement contains recital that OP has received Rs. 41,12,076/- and promised the delivery of possession within 24 months from the date of agreement. Complainant received letter on 14.04.12 informing him that total amount alongwith interest came to Rs. 26,78,919/-. As two years had already passed by that time, complainant wrote letter on 20.04.12 raising certain queries. OP did not send any reply. Rather OP sent letter on 12.06.12 requiring the complainant to pay Rs. 32,04,163/- with interest within 30 days failing which the space was to be cancelled automatically and earnest money would be forfeited. The complainant sent notice dated 18.06.12 asking OPs to refund the amount with interest and rent as damages. It also demanded possession. Hence this complaint for refund of Rs. 41,62,076/- paid by complainant, interest @ 24% per annum amounting to Rs. 39,95,593/- till July 2012 rent @ Rs. 77,648/- from March 2012 to July 2012 and damages for mental and physical torture to the extent of Rs. 10,00,000/- Interest pende lite and future interest has also been claimed.
4. OP filed WS raising preliminary objections that complainant is not a consumer as nature of the property is commercial. This Commission does not have territorial jurisdiction as buyers agreement executed on 14.03.10 states that all disputes arising out of or incidental to the allotment of space shall be referred to and adjudicated in courts of Gurgaon, Haryana only. The size of total construction was changed in view change of layout plans and design of the project. The name of project was changed as a matter of policy and part of business decision. Letter dated 19.08.11 was in terms of payment schedule agreed by the complainant , the installment was due on the casting of third floor. Letter dated 03.01.12 was based on installment due on casting of 5th floor. On merits OP took the same defence.
5. Complainant filed rejoinder and evidence by way of affidavit of Shri Vishawnath Chatterjee, Director.
6. On the other hand OP filed affidavit of Shri Rakesh Sharma, AR in its evidence. Both the parties have filed written arguments. We have gone through the material on record and heard arguments.
7. First we take up the objection of territorial jurisdiction. The counsel for the OP submitted that agreement was executed at Gurgaon which contained specific clause that dispute would be adjudicated by courts at Gurgaon. He relied upon decision of Hon'ble Supreme Court in Swastik Gases P. Ltd. vs. Indian Oil Corporation Ltd. (2013) 9 SCC 32 in which it was held that parties can by agreement confine jurisdiction in one of the several courts which otherwise have jurisdiction.
8. Counsel for complainant submitted that parties cannot confer jurisdiction or take away jurisdiction by agreement. He submitted that decision in Swastik Gas Pvt. Ltd. (supra) has been distinguished by National Commission in FA 1637/16 titled as Exact Developers and Promoters vs. Rahul Jain decided on 14.02.17 by holding that case pertains to cognizance by State Commission. There is no State Commission in Gurgaon, State Commission, Haryana is located in Panchkulla. Thus the agreement confining jurisdiction to Gurgaon court is invalid.
9. We have given our earnest consideration to the rival argument and feel that submissions made by counsel for complainant are germane. Thus this Commission has territorial jurisdiction.
10. On merits the counsel for OP submitted that admittedly the complainant was running his livelihood from his business. He is not entitled to help of section 2 (1) (d) of Consumer Protection Act.
11. We are unable to agree. The complainant has clarified in the first instance in the complaint itself that it was running business from tenanted premises and as rent was getting costlier day by day it was interested in purchasing office space. Intention to shift from tenanted premises to other space owned by complainant is quite legitimate and justified. Intention to avoid rent and particularly increasing rent is again bonafide.
12. Counsel for the OP relied upon decision of National Commission in J.K.Aggrawal vs. Three C Universal Developers (P) Ltd. IV (2011) CPJ 455 in which it was held that if space is booked by individual for and on behalf of company in its capacity as Chairman and Manager, Director of the company and for use of company it amounts to booking for commercial purpose.
13. The above judgement is on different facts. There the booking was made by individual whereas in the present case booking has been made by company. Company is a person and is entitled to invoke Consumer Protection Act as per decision of Hon'ble Supreme Court in Karnataka Power Transmission Corporation III (2009) CPJ 5. Thus we hold that complainant is a consumer.
14. Undisputedly OP could not deliver the possession within time promised. Rather it sent a letter on 31.03.10 which itself was after three years of booking. The same assured delivery of possession within next 24 months. Those 24 months also expired in March 2012 before the complaint was filed. Now we are in 2018. Complainant cannot be compelled to take possession now.
15. It is also true that complainant failed to make the payment demanded in letter dated 11.04.12 pleaded in para 14 and onwards of complaint itself. So complainant is defaulter. Such a person is not entitled to interest in view of decision of Hon'ble Supreme Court in HUDA vs. Raje Ram AIR 2009 SC (2030) and decision of National Commission in FA No. 6/14 titled as Randhir Singh vs. Omaxe decided on 27.11.14.
16. Coming to the plea of forfeiture it may be mentioned that the agreement provides for treating 20% of the amount as earnest money and forfeiting the entire earnest money but the same is contrary to law. This was so held by National Commission in DLF vs. Shipra Estates I (2016) CPJ 31. National Commission went to the extent that if construction was not completed in time, there can be no forfeiture at all.
16. As a result of the above discussion, OP is directed to refund Rs.41,62,076/- within 45 days from the date of receipt of copy of this order failing which the amount will carry interest @ 9% per annum from date of this order till refund.
Copy of the order be sent to both the parties free of cost.
(O.P.GUPTA) MEMBER (JUDICIAL) (ANIL SRIVASTAVA) MEMBER