State Consumer Disputes Redressal Commission
Rajender Singh vs Tdi on 27 May, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
Consumer Complaint No.2 of 2010
Date of institution: 01.01.2010
Date of decision : 27.05.2011
Rajender Singh s/o Late Sh.Ami Lal r/o H.No.3014, Sector 27D, Chandigarh.
.....Compainant
Versus
1. Taneja Development and Infrastructure Ltd., 9 Kasturba Gandhi Marg,
New Delhi.
2. Regional Office, Taneja Development and Infrastructure Ltd., SCO 1098-
1099, Ist Floor, Sector 22-B, Chandigarh.
.....Respondents
Consumer Complaint under the Consumer
Protection Act, 1986.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
Mr.Baldev Singh Sekhon, Member Present:-
For the complainant : Sh.P.K.Kataria, Advocate
For the respondents : Sh.S.K.Monga, Advocate with
Sh.Sanyam Dudeja, Chief
Operating Officer.
JUSTICE S.N.AGGARWAL, PRESIDENT
This order will dispose of the following 12 consumer complaints as the questions of law and facts involved in all these complaints are identical :-
1. Consumer Complaint No.17 of 2009 (Pawan Gulati and another v.
Taneja Development and Infrastructure Limited and another)
2. Consumer Complaint No.68 of 2009 (Parveen K. Kataria and another v.
Taneja Development and Infrastructure Ltd and others)
3. Consumer Complaint No.69 of 2009 (Karandeep Singh Gulati and another v.
Taneja Development and Infrastructure Limited and another)
4. Consumer Complaint No.1 of 2010 (Uttam Singh v.
Taneja Development and Infrastructure Limited and another) Consumer Complaint No.02 of 2010 2
5. Consumer Complaint No.02 of 2010 (Rajender Singh v.
Taneja Development and Infrastructure Limited and another)
6. Consumer Complaint No.3 of 2010 (Mrs.Anju Gupta v.
Taneja Development and Infrastructure Limited and another)
7. Consumer Complaint No.4 of 2010 (Mr.Ravi Gupta v.
Taneja Development and Infrastructure Ltd., and another)
8. Consumer Complaint No.5 of 2010 (Mrs.Gurjeet Kaur v.
Taneja Development and Infrastructure Limited and another)
9. Consumer Complaint No.6 of 2010 (Inderpreet Kaur v.
Taneja Development and Infrastructure Limited and another)
10. Consumer Complaint No.64 of 2010 (Jagjeet Kaur Kahlon v.
M/s Taneja Developers and Infrastructure Limited and others)
11. Consumer Complaint No.65 of 2010 (Manjit Kaur v.
M/s Taneja Developers and Infrastructure Limited and others)
12. Consumer Complaint No.77 of 2010 (Jagjeet Kaur v.
M/s Taneja Developers and Infrastructure Limited and others) The facts are taken from Consumer Complaint No.2 of 2010 and the parties would be referred by their status in this appeal
2. The respondents through their agents and property dealer induced the general public to invest in commercial plots measuring 204 square yards each on Mohali-Kharar NH-21 @ Rs.24,500/- per square yard for total amount of Rs.49,98,000/-. It was named as TDI City. The respondents demanded a sum of Rs.10 lacs as advance booking.
3. It was further pleaded that Sunil Kumar Ravniyar and Rohit Gupta (in short "the allottees") deposited a sum of Rs.10 lacs for a plot with the respondents on 4.4.2006 and they were registered at No.M/P/COMM 57 and MCP-10106. They further deposited a sum of Rs.5 lacs with the respondents on Consumer Complaint No.02 of 2010 3 4.1.2008. The respondents had assured the allotttees that the allotment letter would be issued. The schedule of payment was given and as per the schedule, the respondents were to issue the allotment letter after accepting the second instalment of Rs.5 lacs. Instead of issuing the allotment letter, the respondents gave priority No.60 and they were told that the allotment would be made very soon as per priority number.
4. It was further pleaded that the complainant had purchased the booking from the allottees. He applied to the respondents for transferring the nomination in his favour. The respondents charged an amount of Rs.1 lacs from the complainant as transfer charges on 4.7.2008 and transferred the said priority number in favour of the complainant on the backside of the original receipt. The complainant was also assured by the respondents that the allotment letter of 204 square yards plot in TDI City will be sent in a few days.
5. It was further pleaded that in the month of November, 2008, the complainant was informed by the respondents telephonically that they have started issuing allotment letters of commercial sites. Therefore, the complainant was asked to come to the office of the respondents and collect the allotment letter. He was also asked to make the payment of another amount of Rs.8 lacs on the date of allotment. Accordingly, the complainant went to the office of the respondents. Instead of issuing the allotment letter of 204 square yards commercial site, the complainant was told that GMADA has approved the commercial sites only for 120 square yards. Therefore, the respondents have no option but to offer the plot for 120 square yards only.
6. The complainant was also asked to sign on the blank documents and he was assured that the rate of plot will be accordingly adjusted. Believing the assurance of the respondents, the complainant deposited the amount in the office of the respondents on 21.11.2008 against 4 separate receipts. Even then the respondents failed to issue the allotment letter.
Consumer Complaint No.02 of 2010 4
7. However, on that day, the respondents gave one receipt that plot No.14 was allotted to the complainant subject to the realisation of the cheque. About 2 months after on 22.1.2009, the complainant was issued allotment letter dated 24.12.2008 for an area measuring 120 square yards without any further details. Later on, the complainant came to know from the newspaper that it was totally wrong if the GMADA had declined to clear the commercial plots of 204 square yards each. In fact, the respondents had not even applied to the GMADA for approval of commercial plots measuring 204 square yards each. The respondents had applied only for the clearance of commercial plots measuring 120 square yards each and it was approved by GMADA.
8. It was further pleaded that the complainant sent letter dated 16.2.2009 by registered post to the respondents complaining against the misrepresentation made by them. He further enquired from the respondents to give details of the plot regarding length, width, balance dues, mode of payment and likely date of possession but no reply was received from the respondents. Thereafter, the complainant again sent reminder dated 16.4.2009. Instead of furnishing replies to those letters, the respondents sent letter dated 21.5.2009 asking the complainant to make the payment of another amount of Rs.4,99,600/- on account of 50% of the basic sale price plus 50% EDC plus 100% PLC. The letter was again silent regarding the price of the plot, details of EDC although no PLC was payable. After receiving this letter, the complainant sent letter dated 29.5.2009 to the respondents seeking reply to his earlier letters. Still no reply was received by the complainant.
9. Thereafter, the complainant sent his complaint dated 20.7.2009 to the Chief Administrator, GMADA and GMADA forwarded the same to the respondents for redressal of his grievance. Inspite of that, the respondents failed to reply. Rather they sent reminder dated 15.7.2009 and 4.9.2009 asking the complainant to pay the balance amount. No information was given to the complainant about the details of the allotment of commercial sites. As per the Consumer Complaint No.02 of 2010 5 original contract, the respondents were to allot commercial plot measuring 204 square yards @ Rs.24,500/- per square yard for total amount of Rs.49,98,000/-, out of which, they had already paid a sum of Rs.23 lacs to the respondents but the respondents were playing fraud with the complainant. At the rate of Rs.24,500/- per square yard, the total amount for a plot measuring 120 square yard comes only to Rs.29,40,000/- but the respondents vide their aforesaid letters were demanding a sum of Rs.13,20,261/- but thereafter the respondents sent the final reminder dated 21.12.2009 to the complainant demanding an amount of Rs.18,95,875/- with the threat that if the complainant failed to make the payment, his plot would be cancelled.
10. It was further pleaded that the respondents were making false claims that the development work was in full swing, construction of parking area was in process and offer of possession will be made without delay. The complainant himself visited the spot and found that except for a main gate, there was no development in the entire area as it was lying vacant and not even levelled. There were no internal roads, no sewerage, no water system and no electrification was done. Therefore, the respondents played unfair trade practice by failing to stand up to their commitment even after receiving the payment from the complainant. Hence, the complaint seeking direction against the respondents for allotting him a plot measuring 204 square yards, issuance of the allotment letter, allotting the plot @ Rs.24,500/- square yards, quashing the demand of PLC, making time bound development and offer possession. Compensation and costs were also prayed.
11. The respondents filed the written reply. It was not denied that the respondents had purchased agricultural land on Mohali-Kharar NH21 for developing TDI city but it was denied if the respondents had induced the general public either through their agents or property dealers. In fact, Sunil Kumar Ravniyar and Rohit Gupta had submitted their application dated 18.1.2006 with the respondents for getting themselves registered for allotment of a commercial plot measuring 204 square yards. They had also deposited an amount of Rs.10 lacs Consumer Complaint No.02 of 2010 6 as registration deposit. Certain conditions were imposed and one of the conditions was that if the respondents were not in a position to make offer for allotment of a commercial plot within the period of 6 months from the date of their application, the allottees will have the right to withdraw the money with interest @ 15% p.a. The other condition was that the prices, EDC charges and PLC were subject to the changes and availability.
12. It was further pleaded that this application was entertained by the respondents. Uptill December, 2006, the respondents could purchase only 115 acres of land. Some other land owners had executed agreement of sale in favour of the respondents. The respondents had applied to the Chief Town Planner, Punjab for CLU of 131 acres on 6.12.2006. The CLU was granted to the respondents on 22.12.2006 for which the respondents were to deposit an amount of Rs.42.38 crores to the authorities. Thereafter, the respondents had submitted lay out plans with the Chief Town Planner, Punjab regarding 106 acres of land. Since the litigation was pending in the Hon'ble High Court Punjab and Haryana High Court, Chandigarh (CWP No.18632 of 2005), therefore, the grant of CLU was suspended for about one year. The CLU was granted to the respondents in December, 2007 and the lay out plan was approved on 25.3.2008. Some more land was purchased by the respondents and the revised lay out plan of 159 acres was submitted. It was approved by the Competent Authority on 4.12.2008.
13. It was further pleaded that out of 159 acres of land, the area measuring 26.24 acres was left for proposed sector roads and only an area of 3.5 acres could be developed as commercial area. In the layout plan, 3 different pockets were approved as commercial area to cater to the day to day needs of the inhabitants in TDI City. Out of these 3 pockets area, one pocket over an area of 1.25 acres was for shopping mal. The remaining two pockets consisted of an area of 2.229 acres of land from which 90 plots measuring 120 square yards each were approved by the Chief Town Planner in the lay out plan. In each 120 square yards plot, 180 square yards was to be kept as open for private parking slots and other Consumer Complaint No.02 of 2010 7 public utility services. Therefore, for 90 commercial plots in the aforesaid two pockets, an area of 3.34 acres was left open for parking slots and other public utility services.
14. It was further pleaded that the allottees submitted an application on 15.1.2008 to the effect that the name of Rohit Gupta may be deleted from the records as he had relinquished his rights in favour of the other applicant namely Sunil Kumar Ravniyar. This request was accepted by the respondents and Sunil Kumar Ravniyar alone got the registration deposit rights with regard to commercial plot in question. It was admitted that the complainant had purchased the registration deposit from the allottee on 4.7.2008 and the application was received by the respondents for substitution of his name in place of the name of Sunil Kumar Ravniyar alongwith indemnity bond. It was accepted by the respondents and the name of the complainant was recorded as a transferee. Therefore, the complaint was not maintainable for not impleading Sunil Kumar Ravniyar original applicant.
15. It was also pleaded that the complainant had made the registration deposit for commercial plot for commercial purposes. On 21.11.2008, the complainant had submitted an affidavit to the respondents accepting the allotment of a commercial plot measuring 120 square yards for a sum of Rs.49,98,000/- and by this affidavit, all previous communications were superseded. On its basis, the respondents had issued the allotment letter dated 24.12.2008 to the complainant. Therefore, the complainant was barred by his own act and conduct from filing the present complaint. The complainant had also failed to follow the payment schedule and failed to deposit the balance amount. He was reminded from time to time but he caused delay in making the payment. As on today, he was in arrears of Rs.26,64,549/-. It was denied if there was any deficiency in service on the part of the respondents. Dismissal of the complaint was prayed.
16. The complainant filed his affidavit dated 1.1.2010. He also proved documents Annexure C-1 to Annexure C-20. He also produced photographs. The Consumer Complaint No.02 of 2010 8 complainant also produced documents Annexure C21 to C22. He also produced the additional affidavit to the effect that the complainant had purchased this plot for earning his livelihood by way of self employment and not for any commercial purposes. On the other hand, the respondents filed the affidavit of Sanyam Dudeja, authorised signatory of the respondents dated 8.6.2010. They also produced documents Annexure R-1 to Annexure R-12. They also produced the photograph Annexure R-13.
Consumer Complaint No.17 of 2009 (Pawan Gulati and another v.
Taneja Development and Infrastructure Limited and another)
17. Ms.Sangeeta Dhingra and Ajay Dhingra had deposited an amount of Rs.10 lacs with the respondents against receipt dated 4.4.2006 for a plot measuring 204 square yards in TDI City @ Rs.24,500/- per square yard. The complainants purchased their booking and the transfer was accepted by the respondents on 9.5.2008 after charging a sum of Rs.1 lac from the complainants as transfer fee. The endorsement of transfer was made on the backside of the original receipt. The complainants again deposited an amount of Rs.5 lacs with the respondents on 9.5.2008. The allotment letter was not issued. The complainants received telephonic message and also the letter threatening the depositors to accept the plot measuring 120 square yards for the same amount in place of plot measuring 204 square yards, failing which, the registration booking would be cancelled and the amount would be forfeited. This letter was received on 28.1.2009. Hence, the complaint. The same relief was prayed as in CC No.2 of 2010.
18. The respondents filed the written reply and pleaded almost identical facts as in CC No.2 of 2010.
Consumer Complaint No.68 of 2009 (Parveen K. Kataria and another v.
Taneja Development and Infrastructure Ltd and others)
19. Sudesh Gambhir had deposited a sum of Rs.10 lacs with the respondents on 19.1.2006 for purchasing a plot measuring 204 square yards in TDI City @ Rs.24,500/- per square yard. The respondents offered plot vide letter dated Consumer Complaint No.02 of 2010 9 18.1.2007 and 11.12.2007 measuring 204 square yards and demanded an amount of Rs.49,98,000/-. Sudesh Gambhir sold his booking to Kapil Sain Goel. He applied for transfer of this booking on 31.12.2007. It was accepted by the respondents after charging Rs.20,000/- as transfer fee. Kapil Sain Goel further deposited an amount of Rs.5 lacs with the respondents on 31.12.2007. He was given priority No.55. The schedule of payment was also issued by the respondents. Bhoomi Poojan and foundation stone ceremony was got done by the respondents on 22.1.2008 from Hon'ble Chief Minister of Punjab. Both the complainants purchased the booking from Kapil Sain Goel and the respondents sanctioned the transfer in favour of the complainants on 29.7.2008 after charging a sum of Rs.1 lac from the complainant as transfer fee. The complainants came to know that the respondents had started allotting 120 square yards for an amount of Rs.49,98,000/- instead of giving 204 square yards plots for that amount. The complainants refused to accept this plot of 120 square yards for the same amount of Rs.49,98,000/- and also refused to sign the blank documents in favour of the respondents. Hence, the complaint. The same relief was prayed as in CC No.2 of 2010.
20. The respondents filed the written reply and pleaded almost identical facts as in CC No.2 of 2010.
Consumer Complaint No.69 of 2009 (Karandeep Singh Gulati and another v.
Taneja Development and Infrastructure Limited and another)
21. M/s Twenty First Century Textile Private Limited (original applicant) had deposited a sum of Rs.10 lacs with the respondents vide bank draft dated 19.1.2006 against receipt dated 31.7.2006 for purchasing a commercial plot measuring 204 square yards in TDI City @ Rs.24,500/- square yards. The complainant had purchased the booking from the original applicant and the respondents accepted the transfer vide letter dated 22.5.2008 after accepting the transfer fee of Rs.1 lac. Thereafter, the complainant deposited 2nd instalment of Rs.2,49,700/- against receipt dated 22.5.2008. The payment of schedule was given by the respondents and the endorsement of transfer was made on the backside of Consumer Complaint No.02 of 2010 10 the original certificate. The respondents asked the complainant to accept the commercial plot for an area measuring 120 square yards for the same amount of Rs.49,98,000/- in place of 204 square yards area and asked them to sign the blank documents. They also received letter dated 13.1.2009 asking the complainants to accept the plot and deposit the amount. Hence, the complaint. The same relief was prayed as in CC No.2 of 2010.
22. The respondents filed the written reply and pleaded almost identical facts as in CC No.2 of 2010.
Consumer Complaint No.1 of 2010 (Uttam Singh v.
Taneja Development and Infrastructure Limited and another)
23. The original applicant was Mr.Nirmal Deep Singh Benipal who had deposited an amount of Rs.10 lacs with the respondents on 4.4.2006 for a plot measuring 204 square yards in TDI City @ Rs.24,500/- per square yard. The complainant had purchased the booking from the original applicant and it was accepted by the respondents after charging a sum of Rs.1 lac on 28.5.2008 as transfer charges. The complainant had deposited the second instalment of Rs.5 lacs with the respondents on 22.11.2008. She had also accepted the offer of 120 square yards plot and her signatures were obtained by the respondents on some blank papers. Hence, the complaint. The same relief was prayed as in CC No.2 of 2010.
24. The respondents filed the written reply and pleaded almost identical facts as in CC No.2 of 2010.
Consumer Complaint No.3 of 2010 (Mrs.Anju Gupta v.
Taneja Development and Infrastructure Limited and another)
25. The original applicant was Om Parkash who had deposited an amount of Rs.10 lacs with the respondents on 4.4.2006 for purchasing a commercial plot measuring 204 square yards @ Rs.24,500/- per square yard. He had deposited another amount of Rs.5 lacs on 21.4.2008. He had sold his booking Consumer Complaint No.02 of 2010 11 jointly to the complainant and Sunil Dutt which was accepted by the respondents after accepting transfer fee of Rs.1 lac on 25.10.2008. She had not executed any affidavit in favour of the respondents. Hence, the complaint. The same relief was prayed as in CC No.2 of 2010.
26. The respondents filed the written reply and pleaded almost identical facts as in CC No.2 of 2010.
Consumer Complaint No.4 of 2010 (Mr.Ravi Gupta v.
Taneja Development and Infrastructure Ltd., and another)
27. The original applicant was Camel Foods Private Limited who had deposited an amount of Rs.10 lacs with the respondents on 4.4.2006 for purchasing a commercial plot measuring 204 square yards @ Rs.24,500/- per square yard. He had depsited another amount of Rs.4,99,400/- on 8.1.2008. They had sold their booking to the complainant which was accepted by the respondents after accepting the transfer fee of Rs.1 lac on 28.8.2008. Hence, the complaint. The same relief was prayed as in CC No.2 of 2010.
28. The respondents filed the written reply and pleaded almost identical facts as in CC No.2 of 2010.
Consumer Complaint No.5 of 2010 (Mrs.Gurjeet Kaur v.
Taneja Development and Infrastructure Limited and another)
29. The original applicant was Rakesh Gupta who had deposited an amount of Rs.10 lacs with the respondents on 4.9.2006 for a plot measuring 204 square yards @ Rs.24,500/- per square yard. He had deposited further amount of Rs.4,99,800/- on 5.12.2006. He was given priority No.7. He had sold his booking to the complainant and the respondents had accepted it on 14.2.2008 after accepting Rs.1 lac as transfer charges. The complainant had signed the affidavit. The complainant had received a telephonic message in November, 2008 on which she visited the office of the respondents and had accepted the offer of 120 square yards plot and her signatures were obtained on some blank papers by the Consumer Complaint No.02 of 2010 12 respondents. Hence, the complaint. The same relief was prayed as in CC No.2 of 2010.
30. The respondents filed the written reply and pleaded almost identical facts as in CC No.2 of 2010.
Consumer Complaint No.6 of 2010 (Inderpreet Kaur v.
Taneja Development and Infrastructure Limited and another)
31. The original applicant was Honey Money Associate Private Limited who had deposited an amount of Rs.10 lacs with the respondents on 4.4.2006 for a plot measuring 204 square yards in TDI City @ Rs.24,500/- per square yard. The complainant had purchased the booking from the original applicant and it was accepted by the respondents after charging a sum of Rs.20,000/- on 6.12.2007 as transfer charges. The complainant had deposited the second instalment of Rs.5 lacs with the respondents on 6.12.2007. She had also accepted the offer of 120 square yards plot and her signatures were obtained by the respondents on some blank papers. Hence, the complaint. The same relief was prayed as in CC No.2 of 2010.
32. The respondents filed the written reply and pleaded almost identical facts as in CC No.2 of 2010.
Consumer Complaint No.64 of 2010 (Jagjeet Kaur Kahlon v.
M/s Taneja Developers and Infrastructure Limited and others)
33. Original applicant Madhurma Gupta had deposited a sum of Rs.10 lacs with the respondents against receipt dated 4.4.2006 for the purchase of plot measuring 204 square yards in TDI City @ Rs.24,500/- for total amount of Rs.49,98,000/-. She had also deposited further amount of Rs.2,50,000/- as second instalment against receipt dated 10.1.2008. The complainant purchased the booking from the original applicant. It was accepted by the respondents on 5.7.2008 after charging a sum of Rs.1 lac from the complainant and the transfer endorsement was made on the backside of the original receipt. The complainant also deposited further instalment/EDC charges with the respondents on Consumer Complaint No.02 of 2010 13 21.11.2008. She was assured of the allotment letter in the near future. In November, 2008, the complainant received information for the allotment of commercial site telephonically. The complainant was also asked to reach the office of the respondents and also demanded an amount of Rs.5 lacs. The complainant visited the office of the respondents and they offered a plot of 120 square yards and asked the complainant to sign on some blank documents. The complainant had no other option but to accept the same. She deposited another amount of Rs.5 lacs with the respondents against receipt dated 27.11.2008. She was allotted plot No.39 measuring 120 square yards vide allotment letter dated 24.12.2008 without giving payment schedule. The respondents demanded more amount for which the reminder dated 21.5.2009 was sent to the complainant demanding an amount of Rs.97,600/-. The plot of 120 square yards was offered for an amount of Rs.49,98,000/- which was the price of 204 square yards plot. Hence, the complaint. The same relief was prayed as in CC No.2 of 2010.
34. The respondents filed the written reply and pleaded almost identical facts as in CC No.2 of 2010.
Consumer Complaint No.65 of 2010 (Manjit Kaur v.
M/s Taneja Developers and Infrastructure Limited and others)
35. Harish Tejwani was the original applicant who had deposited an amount of Rs.10 lacs with the respondents against receipt dated 31.1.2007 for purchasing a plot measuring 204 square yards in TDI City @ Rs.24,500/- per square yard. The complainant had purchased the booking from Harish Tejwani which was accepted by the respondents on 21.7.2008 after receiving a sum of Rs.1 lac as transfer fee. Separate receipt was given by the respondents after making endorsement of transfer in her name. Thereafter, the complainant had deposited the second instalment of Rs.5 lacs with the respondents on 21.7.2008 and the allotment was assured to her. The respondents started making allotment telephonically in November, 2008. The complainant was also asked to reach the office of the respondents. She was offered plot measuring 120 square yards only. Consumer Complaint No.02 of 2010 14 The complainant had no option but to accept this offer. Her signatures were also obtained by the respondents on some blank papers. She had also deposited the demanded amount of Rs.10 lacs with the respondents on 6.2.2009. She also deposited another amount of Rs.50,000/- on the same day as PLC charges but no allotment letter was issued to her. The respondents continued demanding money instead of allotting plot measuring 120 square yards @ Rs.24,500/- per square yards. Hence, the complaint. The same relief was prayed as in CC No.2 of 2010.
36. The respondents filed the written reply and pleaded almost identical facts as in CC No.2 of 2010.
Consumer Complaint No.77 of 2010 (Jagjeet Kaur v.
M/s Taneja Developers and Infrastructure Limited and others)
37. Original applicant V.P.Sharma and Pawan Kumar had deposited an amount of Rs.12 lacs with the respondents for the purchase of a commercial plot measuring 204 square yards in TDI City @ Rs.29,500/- for total amount of Rs.60,18,000/-. The complainant purchased the booking from the original applicant and it was accepted by the respondents on 4.7.2008 after charging a sum of Rs.1 lac from the complainant as transfer fee. Necessary transfer entry was made by the respondents on the backside of the original booking. The complainant also deposited further instalment of Rs.6,05,400/- with the respondents on 19.7.2008. Still further instalment/EDC charges were also deposited with the respondents on 21.11.2008. The complainant also deposited another amount of Rs.8 lacs with the respondents against receipt dated 21.11.2008. She was assured of allotment letter. She was given priority No.136 but the allotment letter was not issued. The complainant, later on, came to know from the newspaper that the respondents were allotting plots measuring 120 square yards instead of 204 square yards and the details/possession of the plot were not being given. The respondents sent letter dated 21.5.2009 to the complainant demanding another amount of Rs.1,03,600/- as 50% of the basic sale price plus 50% EDC plus 100% PLC. The complainant contacted the office of the respondents but no allotment letter was Consumer Complaint No.02 of 2010 15 issued. The respondents continued demanding the money. Another amount was demanded by the respondents vide letter dated 15.7.2009 to the tune of Rs.4,03,600/-. The complainant under the misrepresentation made by the respondents had accepted the allotment of a plot measuring 120 square yards believing it to be @ Rs.29,500/- per square yard but the respondents offered the allottee a plot measuring 120 square yards for an amount of Rs.60,18,000/- instead of accepting the proportionate price of Rs.35,40,000/-. Hence, the complaint. The same relief was prayed as in CC No.2 of 2010.
38. The respondents filed the written reply and pleaded almost identical facts as in CC No.2 of 2010.
Consumer Complaint No.02 of 2010
39. The submission of the learned counsel for the complainant was that the respondents were accepting the amount from the complainant after representing that they were selling the commercial plot measuring 204 square yards @ Rs.24,500/- per square yard. They not only caused delay in offering the allotment letter but they also offered the plot measuring 120 square yards for an amount of Rs.49,98,000/- in place of plot measuring 204 square yards. It was not only deficiency in service but it was also unfair trade practice. Hence, it was prayed that the complaint be accepted.
40. On the other hand, the submission of the learned counsel for the respondents was that it was not a concluded contract for 204 square yards as no allotment letter was issued to the complainant for 204 square yards. Moreover, in some of the complaints, the complainant had accepted the plot measuring 120 square yards for the same price of Rs.49,98,000/- by furnishing an affidavit in favour of the respondents. It was also submitted that since it was a commercial plot, therefore, the complainant had purchased it for commercial purposes and, therefore, the complainant was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act (in short "the Act"). It was also submitted Consumer Complaint No.02 of 2010 16 by the learned counsel for the respondents that the complainant was being given the following options : -
1. To accept plot measuring 120 square yards for an amount of Rs.49,98,000/-;
2. To accept the plot measuring 82 square yards for an amount of Rs.49,98,000/-;
3. Wait for plot in future projects;
4. To get refund of this amount with interest @ 15% per annum from the date of deposit till the date of payment;
41. It was also submitted that there was no deficiency in service on the part of the respondents and dismissal of the complaint was prayed.
42. Record has been perused. Submissions have been considered.
43. The allegations of the complainant were that the respondents were prompting the general public through their agents and property dealers to invest in their future projects. Although these facts were denied by the respondents but the respondents themselves have admitted in the written statement that they had been accepting the amount of Rs.10 lacs from the original applicant in January, 2006 onwards. They themselves have also pleaded that upto December, 2006, they could purchase only 115 acres of land, they had applied for change of land use (CLU) on 6.12.2006 which was granted to them in December, 2006. Thereafter, the respondents submitted the lay out plan to the Chief Town Planner, Punjab which was granted to them in December, 2007. The revised lay out plan was approved by the Competent Authority in December, 2008. This conduct of the respondents clearly reveals that they had been collecting the money from the general public even before the land was purchased by them for developing TDI city and even before they had obtained the CLU and had got approved the lay out plan from the Competent Authority. It, therefore, clearly reveals that the respondents were exploiting the general public for illegal gains. Consumer Complaint No.02 of 2010 17
44. The submission of the learned counsel for the respondents was that there was no contract between the parties for allotment of a plot measuring 204 square yards in TDI City @ Rs.24,500/- per square yard is also totally false. In this case, the respondents had issued booking slip Annexure C-1 to the original applicant after accepting the amount of Rs.10 lacs on 4.4.2006. In the receipt, it was mentioned that it was an advance against the present and future project for commercial area. After one of the original applicants transferred his rights in favour of the other applicant, an endorsement was made on the backside of the booking slip Annexure C1 clearly specifying that the area of the plot was 204 square yards. The transfer was effected on 23.1.2008. Thereafter, it was purchased by the complainant in July, 2008 from the original applicant who had become the exclusive owner. It was again mentioned in the transfer endorsement that this amount was for plot measuring 204 square yards. In a similar case (Complaint No.68 of 2009), the respondents had issued letter dated 18.1.2007 in which the approximate area of the plot measuring 204 square yards was specifically mentioned and the rate of the plot per square yard was shown as Rs.24,500/-.
45. It is, therefore, clearly proved that the respondents had been representing to the complainant/applicant all the time that they would get the commercial plot measuring 204 square yards @ Rs.24,500/- per square yard in TDI City and had been accepting the money from the complainant/applicant. Now the respondents were offering plot measuring 120 square yards. The plea taken by the respondents was that GMADA/Chief Town Planner, Punjab have approved the plots measuring 120 square yards only and, therefore, they could not offer the plot measuring 204 square yards. If this plea of the respondents had been correct and if the respondents had offered the plot measuring 120 square yards at the same rate of Rs.24,500/- per square yard, the things would have been different. The total amount of the plot measuring 204 square yards @ Rs.24,500/- per square yard comes to Rs.49,98,000/- but the respondents want to handover a plot measuring Consumer Complaint No.02 of 2010 18 120 square yards to the complainant/applicant for an amount of Rs.49,98,000/-. It is a totally unfair trade practice, cheating and deficiency in service.
46. The respondents have not placed on the file any document to show if they had applied for the plots measuring 204 square yards to the Competent Authority or if the Competent Authority had refused to accept the proposal of the respondents for demarcating the plots measuring 204 square yards each. Rather it appears that the respondents had applied only for the plots measuring 120 square yards each which proposal was accepted by the Competent Authority. It was, therefore, a mal-intention of the respondents to have mis-represented to the public that they were selling the plots measuring 204 square yards each and had been accepting the amount from the complainants/applicants on its basis while the real intention of the respondents was only to have the plots measuring 120 square yards each. Not only that they had also the mal-intention of selling plots measuring 120 square yards for the same amount for which they had promised or represented to offer an plot measuring 204 square yards.
47. The submission of the learned counsel for the respondents was that since some area was left for parking and some area was being consumed by the roads and some area is meant for public utility services, therefore, that area has also to be considered alongwith the plot measuring 120 square yards to assess the total area of the plot. Therefore, the complainants/applicants should not have any grievance.
48. This submission has been considered.
49. This submission has no legs to stand. The respondents are private builders for the last so many years. They knew that some area has to be left for parking, some area for roads, some area for parking and some area for public utility services but the land consumed by these factors cannot be added in the area of a plot to make it 204 square yards plot. In fact it was only 120 square yards plot which is delivered to the complainants. It was unworthy of a reputed builder to misrepresent to the public that they would get a plot of 204 square yards @ Consumer Complaint No.02 of 2010 19 Rs.24,500/- per square yard for total amount of Rs.49,98,000/- whereas the hidden truth in the hearts of the respondents was that they would hand over only plot measuring 120 square yards for total amount of Rs.49,98,000/-. It is not only civil offence committed by the respondents but this also amounts to a criminal offence of cheating for which the respondents deserve to be prosecuted.
50. The submission of the learned counsel for the respondents was that in some of the cases, the complainants had accepted the plots measuring 120 square yards for the total amount of Rs.49,98,000/- and have given affidavits to that effect for which reference was made to the affidavit given by the complainant on 21.11.2008, copy of which has been proved as Annexure R-7. The respondents have also pleaded that they have issued the allotment letter of plot No.14 to the complainant vide allotment letter dated 24.12.2008 (Annexure R-8).
51. This submission on the face of it appears to be plausible and acceptable but when both these documents are read carefully, the submission of the learned counsel for the respondents falls to the ground. The affidavit Annexure R7 is dated 21.11.2008. The first para of this affidavit reads "That I accept the allotment of commercial Plot No.14 measuring 120 sq yards (17' x 63'6") in TDI City Phase 1, Mohali for a sum of Rs.49,98,000/- (rupees forthy nine lacs ninety eight thousands only) being the basic allotment price". The allotment letter is dated 24.12.2008 Annexure R-8 by which the respondents have informed the complainant that they were pleased to allot a commercial plot in their forthcoming fully integrated township TDI CITY at Mohali Kharar Road, Punjab bearing plot No.14.
52. It is really surprising that the allotment letter was issued on 14.12.2008 for the first time while it is alleged by the respondents that the complainant had accepted plot No.14 one month earlier i.e. on 21.11.2008 by filing an affidavit Annexure R-7. This makes the version of the complainant to be true that this affidavit was got signed by the respondents from the complainant by getting his/her signatures on the blank document and by misrepresenting the facts. Consumer Complaint No.02 of 2010 20 Not only the affidavit dated 21.11.2008 is proved to be false as the plot has been allotted to the complainant on a subsequent date but it is also proved to be absolutely false as no person would accept a plot of 120 square yards for the same amount which was the price of a plot measuring 204 square yards.
53. The last argument of the learned counsel for the respondents was that the complainant was not a consumer as the complaint relates to a commercial plot and obviously, it was for commercial purpose.
54. On the other hand, the submission of the learned counsel for the complainant was that he had purchased this plot for earning his livelihood by means of self-employment and, therefore, he was the consumer of the respondents.
55. This submission has been considered.
56. In this context, reference may be made to the definition of the word 'consumer' as provided in Section 2(1)(d) of the Act. It reads as under : -
".....'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 services 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 Consumer Complaint No.02 of 2010 21 beneficiary of such services 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 services for any commercial purposes]"
57. So far as Section 2(1)(d)(i) is concerned, it relates to purchase of goods. The word 'goods' has not been defined in the Act.
58. This aspect was considered by the Hon'ble Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in the judgment reported as "Omshankar Gupta v. Dr.Baba Saheb Ambedkar Grih Nirman Sahakari Samiti Maryadit and another, III (2008) CPJ 426" in which it was held that a residential plot did not fall in the definition of goods as defined in Section 2(1)(d)(i) of the Act ibid but the residential plot was covered by the words hiring or availing of any service as defined in Section 2(1)(d)(ii) of the Act ibid. The Hon'ble National Commission has also considered this matter in the judgment reported as "Ghaison Expotech, Ludhiana v. Punjab Small Industries and Export Corpn. Ltd., III (2010) CPJ 248 (NC)" in which it was held in para 13 as under : -
"13. To start with, we shall deal with the contention raised by the learned Counsel for the OP that the complainant cannot be considered to be a consumer since he had availed the services for commercial purpose, in this respect, we would like to point out that it is not a case of purchase of goods inasmuch as allotment of plot being an immovable property does not fall within the definition of 'goods' in Section Consumer Complaint No.02 of 2010 22 2(1)(i) of the C.P.Act where the terms 'goods' has been assigned the meaning as contained in the Sale of Goods Act, 1930. As per Section 2(7) of the Sale of Goods Act, immovable property; namely, plot would not fall within the definition of goods, which reads as under :
Goods--'Goods' means every kind of moveable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale"
59. On the same analogy, it is held that the purchase of a commercial plot did not fall in the category of purchase of goods under Section 2(1)(d)(i) of the Act ibid.
60. So far as the word 'service' is concerned, the word 'service' has been defined in Section 2(1)(o) of the Act as under : -
"2(1)(o) 'service' means service of any description which is made available 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"
61. No doubt that a person who hires or avails of any service as defined in the Act ibid is a consumer but he will not be a consumer if he has availed such service for any commercial purpose with effect from 15.3.2003 when the Consumer Complaint No.02 of 2010 23 explanation to Section 2(1)(d) was substituted and even availing of service for commercial purpose was applied to Sub-Section 2(1)(d)(ii) also. Still if a person has availed the service exclusively for the purpose of earning his livelihood by means of self-employment, still he would be a consumer. The point to be determined, therefore, is whether the commercial plot was purchased by the complainant from the respondents for a commercial purpose or not.
62. The word 'commercial purpose' came to be considered by the Hon'ble Supreme Court in the judgment reported as "Laxmi Engineering Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)". It was held by the Hon'ble Supreme Court in para 10 of the judgment as under : -
"10. Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred, (ii) a person who uses such goods with the approval of the person who buys such goods for consideration, (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression 'resale' is clear enough. Controversy has, however, arisen with respect to meaning of the expression 'commercial purpose. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning.
'Commercial' denotes 'pertaining to commerce' (Chamber's Twentieth Century Dictionary); it means 'connected with, or engaged in commerce; mercantile; Consumer Complaint No.02 of 2010 24 having profit as the main aim' (Colins English Dictionary) whereas the word 'commerce' means 'financial transactions especially buying and selling of merchandise, on a large scale' (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods 'with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit' he will not be a 'consumer' within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion - the expression 'large- scale' is not a very precise expression - the Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression 'commercial purpose' a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for 'commercial purpose would not yet take the purchaser out of the definition of expression 'consumer'. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, Consumer Complaint No.02 of 2010 25 such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a 'commercial purpose', to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., 'uses them by himself', 'exclusively for the purpose of earning his livelihood' and 'by means of self- employment' make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not Consumer Complaint No.02 of 2010 26 cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions 'used by him', and 'by means of self-employment' in the explanation. The ambiguity in the meaning of the words 'for the purpose of earning his livelihood' is explained and clarified by the other two sets of words."
63. It was a case under Section 2(1)(d)(i). The Hon'ble Supreme Court concluded as under : -
"19. So far as the present case is concerned, we must hold (in agreement with the National Commission), having regard to the nature and character of the machine and the material on record that it is not goods which the appellant purchased for use by himself exclusively for the purpose of earning his livelihood by means of self-employment, as explained hereinabove."
64. It was, thereafter, considered by the Hon'ble National Commission in the judgment reported as "Harsolia Motors v. National Insurance Co. Ltd., 2005 CTJ 141 (CP) (NCDRC)". It was a case relating to insurance policy taken by a commercial unit and the Hon'ble National Commission was to decide whether the availing of services was for commercial purpose or not. Defining the words 'commercial purpose, it was held by the Hon'ble National Commission in para 8 as under : -
"The word 'commercial' is defined in Concise Oxford Dictionary, New Edition of the 1990, at page 227, the word 'commercial' is defined as 'having profit as a primary aim rather than artistic etc. value' (vide Dena Consumer Complaint No.02 of 2010 27 Bank, Ahmednagar v. Parkash Birbhan Katariya, AIR 1994 Bom 343 at 345)"
65. It was held by the Hon'ble National Commission in Harsolia Motors's case (supra) as under : -
11. At the outset, it is to be stated that an insured who takes the insurance policy cannot trade or carry on any commercial activity with regard to the insurance policy taken by him. Under Section 3 of the Insurance Act, 1938, no person is permitted to carry on business of insurance unless he obtains a certificate of registration from the Insurance Recovery and Development Authority.
12. Further, hiring of services of the Insurance Company by taking insurance policy by Complainants who are carrying on commercial activities cannot be held to be a commercial purpose. The policy is taken for reimbursement or for indemnity for the loss which may be suffered due to various perils. There is no question of trading or carrying on commerce in insurance policies by the insured. May be that insurance coverage is taken for commercial activity carried out by the insured."
66. The Hon'ble National Commission considered the judgment of Hon'ble Apex Court in Laxmi Engineering Works (supra) and it was concluded by the Hon'ble National Commission as under : -
25. Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words 'for any commercial purpose' it would mean that goods purchased or services hired should be used in Consumer Complaint No.02 of 2010 28 any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose."
67. In the present case, the complainant had purchased a commercial plot. Obviously, it was for generating profit. The complainant has intended to invest an amount of Rs.49,98,000/- for a commercial plot. Merely by saying that the complainant had purchased this plot for earning his livelihood by self- employment, the complainant cannot escape from the consequences and implications of the words 'commercial purpose'. There is no description as to how the purchase of a commercial plot would amount to availing of services exclusively for the purpose of earning his livelihood by means of self- employment, whether he intended to construct and open the shop of a general merchant or of a cloth vendor or of a drug store.
68. This aspect had come up for consideration before the Hon'ble National Commission in the judgment reported as " Monstera Estate Pvt. Ltd. v. Ardee Infrastructure Pvt. Ltd., 2011 CTJ 38 (CP) (NCDRC)" where a person had purchased space in a showroom and it was held by the Hon'ble National Commission in para 5 as under : -
"5. Complainant alleges that it has availed of the services of the opposite party for providing space in the Mall and paid Rs.33,01,740/- towards sale consideration. Even if the complainant, a private limited company, is treated as a 'person' the purchase of space can not be for earning its livelihood by means of self-employment within the meaning of the Explanation nor such a case has been specifically pleaded in the complaint. Purchase of space was for Consumer Complaint No.02 of 2010 29 commercial purpose. Complaint, therefore, deserves to be dismissed being not maintainable under the Act. Dismissed as such."
69. The same view was taken by the Hon'ble National Commission in the judgment reported as "Yogesh Yadav v. Ansal Housing and Consruction Ltd. and another, 2011 CTJ 377 (CP) (NCDRC)", In this case, the property was taken on lease by the complainant from the respondents in a shopping mall and the Hon'ble National Commission had reached the conclusion that it was for commercial purpose and the complaint was dismissed summarily and it was held that lease was taken for a commercial purpose. This view was also taken by the Hon'ble Delhi State Commission in the judgment reported as "Rakesh Kumar and another v. Parsavnath Developers Ltd. & anr., I (2011) CPJ 224". In this case, the complainant had booked two shops in Mall and the consideration was paid but it was held by Hon'ble Delhi State Commission that booking of shops/commercial space in the mall in Ghaziabad by no stretch of imagination can be believed to be for purpose of earning their own livelihood by self-employment.
70. No doubt it is totally a case of deceiving the complainants. The respondents by mis-representation extracted the money from the complainant/applicant and used that money for enhancing their business but since the complainant had invested the money with the respondents for purchase of a commercial site, therefore, it clearly proves that the transaction was for commercial purpose. Therefore, the complainant was not a consumer within the meaning of Section 2(1)(d)(ii) of the Act.
71. In view of the above discussions, this complaint alongwith other connected complaints are dismissed as not maintainable.
72. However, the complainants in all the complaints would be at liberty to avail the option of seeking refund of the amount deposited by them with the respondents with interest @ 15% p.a. from the date of deposit till the date of Consumer Complaint No.02 of 2010 30 payment. The complainants in all the complaints will also be at liberty to resort to any other remedy available to them in accordance with law.
73. The time spent by the complainants in all the complaints from the date of filing of complaints in this Commission till today would not be counted towards limitation in view of the judgment of the Hon'ble Supreme Court reported as "Trai Foods Ltd. v. National Insurance Co. and others" (2004) 13 SCC 656.
74. The arguments in CCs No.68 of 2009, 1 of 2010, 2 of 2010, 3 of 2010, 4 of 2010, 5 of 2010, 6 of 2010 were heard on 10.5.2011 and the arguments in CCs No.17 of 2009, 69 of 2009, 64 of 2010, 65 of 2010, 77 of 2010 were heard on 11.5.2011 and the orders were reserved. Now the orders be communicated to the parties.
75. The complaints could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL) PRESIDENT (AMARPREET SHARMA) MEMBER (BALDEV SINGH SEKHON) MEMBER May 27, 2011.
Paritosh