State Consumer Disputes Redressal Commission
Ms. Iqbal Begum vs M/D Omaxe Ltd. & Ors. on 30 September, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 30.09.2013 Case No. C- 55/2012 MS IQBAL BEGUM - COMPLAINANT W/o M. Naseem Siddiqui R/o 3165, Kucha Tara Chand, Delhi Gate, Darya Ganj, Delhi 110002. Versus 1. M/S OMAXE LTD. - OPPOSITE PARTY-1 Through its Managing Director, Building No. 7, Kalkaji, New Delhi. 2. M/S NIKE INDIA PVT. LTD. - OPPOSITE PARTY-2 701, Millennia Tower-B, Murphy Road, Ulsoor, Banglore 560008. CORAM : S.A. SIDDIQUI - MEMBER (JUDICIAL) S.C. JAIN - MEMBER 1. Whether reporters of local newspapers be allowed to see the judgment? yes 2. To be referred to the Reporter or not? yes S.A. SIDDIQUI (ORAL) JUDGEMENT
1. This complaint has been filed for the following reliefs:
(i) Rs. 7723843.67 being price of the commercial space with interest @ 15% pa.
(ii) Rs. 15,000/- per day from 5.5.2008 to the date of payment as compensation for the harassment, inconvenience, frustration and mental agony suffered by the complainant.
(iii) Rs. 1,00,000/- towards costs of legal notice and other expenses.
2. It has been alleged by the complainant that M/s Omaxe Ltd., OP-1 is a construction company whereas OP-2 is a manufacturer of various sports products. OP-1 has constructed shopping Mall-cum- multiplex known as Wedding Mall Agra (herein after referred to as Commercial complex) on plot of land admeasuring approx. 11000 sq.yds situated at plot No. 3/26, Bypass Road, Agra (UP). OP-2 provided their brands for the commercial complex of OP-1.
3. Complainant was allotted Commercial Space bearing No. 23, on ground floor having an appox. Super area of 99.815 sq. mt./1074.41 sq. ft. in the said commercial complex as per plans and specifications, inspected seen and agreed for a basic sale price @ Rs.73,097.45 (Rupees Seventy Three Thousand Ninety Seven and Forty Five Paisa Only) per sq. ft. totaling to Rs. 72,96,222.23 (Rupees Seventy Two Lacs Ninety Six Thousand Two Hundred Twenty Two and Twenty Three Paisa Only) plus additional charges and preferential location charges as application to the said unit for the purpose of carrying out business of Footwear and Sports Products under Trade/Brand name of Nike by the OP-1.
OP-1 at the time of allotment had promised to the complainant that once she purchased the above said commercial space in the aforesaid Mall, OP-1 will start paying the complainant rent @ Rs. 70,000/- per month till the time some leading brand take that commercial space on rent. Allotment letter is Annexure A-1 and the records showing payment received by the complainant is Annex. A-2. Letter showing communication between OP-1 & OP-2 is Annexure A-3 (Colly). It was further promised that OP-1 will arrange brands like Nike and Arrow to take complainants commercial space on rent on at least Rs. 70,000/- a month. It is noteworthy that OP-1 for more than 2 years had given false statements for letting out of complainants commercial space to Nike. Later on, all of a sudden, OP-1 told the complainant that it is arranging a new brand for the complainants commercial space known as Arrow. But due to non-satisfactory construction of OP-1, OP-2 broke the contract with OP-1 and did not take commercial space in question on rent. OP-1 again indulged in making false statement by promising to complainant that now Arrow will take the complainants commercial space on rent for at least on Rs. 70,000/- p.m. or more.
But so far none turned up to take the commercial space on rent due to bad construction. Construction is not in accordance with the specifications given at the time of allotment. By now so many new space have been created in the Mall and the construction of commercial space in question is not only bad but incomplete also. Till date, the Mall itself is incomplete. The complainant is still waiting for OP-1 to arrange any leading brand for commercial space to be rented. Ultimately, when no hope was left, complainant decided to send a legal notice dated 3.1.2012 to both the OPs. Despite service of notice, no reply/response has been received from the OPs. Copy of legal notice dated 3.1.2012 is Annexure A-4. Thus OP-1 and OP-2 have failed to fulfill their assurances made to the complainant and acted in a most negligent manner in their dealing with the complainant due to which, complainant has suffered great loss and injury.
OP-1 has not only been deficient in providing service to the complainant but also indulged in unfair trade practice.
This Commission has jurisdiction to entertain and adjudicate the complaint.
4. OP-1 filed their written version wherein it was admitted that the said commercial space/unit was booked in the Mall and multiplex developed by the OP-1 at plot No. 3/26, Bypass Road, Agra (UP), commercial space Unit No. 23 on ground floor admeasuring super area of approx. 1074/41 sq.ft. was allotted to the complainant vide the allotment letter/agreement dated 5.5.2008 (Annexure R-2). As per clause 26(a) of the allotment agreement, the OP-1 had undertaken to complete the construction of the commercial complex within 30 months from the date of signing of the allotment agreement dated 5.5.2008. Thus the time for completion of the project was till December 2010. However, OP-1 completed the construction of the project by February 2010 well before time. The completion certificate dated 10.3.2010 issued by the Agra Development Authority is Annexure R-3 and NOC Certificate from Fire Department is Annexure R-4. The construction was carried out as per plan approved by the Competent Authority (DDA, Agra).
5. The complainant had opted for down payment plan and paid a sum of Rs. 69,31,411/- amounting to 95% of the Basic Sale Price of the Unit in question. The complainant further agreed to pay balance 5% of the Basic Sale Price of the said unit and other additional charges @ Rs. 150/- per sq. ft. and IFMS charges @ 100/- per sq. ft. on offer of possession/fit-out of the said unit. OP-1 offered possession/fit-out of the unit of the complainant and demanded the balance payment from her vide letter dated 22.2.2010, (Annexure R-5). How4ver, the complainant failed to pay the same till date despite several written requests and reminders such as letter date 6.5.2010, copy of which is Annexure R-6. Thus, the complainant has rendered herself liable to pay the holding charges apart from payment of the balance sale consideration and other charges as per the terms of allotment. As on 19.3.2012, a sum of Rs. 11,72,797/- (Eleven lacs seventy two thousand seven hundred and ninety seven only) was due and outstanding against the complainant. The complainant also failed to pay maintenance charges etc. Further, alongside to the allotment agreement dated 5.5.2008, an addendum dated 5.5.2008 was also signed between the complainant and OP-1 (copy is Annexure R-7). As per the said addendum agreement, the OP-1 agreed to pay the assured monthly return of Rs. 776,236.66month to the complainant till the offer of possession or till the offer of fit-out, whichever was earlier, subject to the deduction of TDS. Moreover the payment of said monthly assured return was subject to the condition that the complainant/allottee shall adhere to the conditions of the allotment agreement. In compliance of the said agreement, OP-1 has paid a return amount of Rs. 17,81,506/- and deposited TDS of Rs. 1,92,604/- for the entire period of payments. Copies of the certificates of TDS are collectively enclosed as Annexure R-8 (Colly). It is noteworthy that OP-1 was under
obligation to pay the return amount only till the date of offer of possession/fit-out dated 22.2.2010, however, as a goodwill gesture, OP-1 had made payment till 31.3.2010.
The payment was also subject to the condition that complainant shall adhere to the conditions of the allotment i.e. she shall pay the balance consideration and get the conveyance deed executed in her favour but it appears that complainant turned dishonest and backed out from the commitment made by her. Without being under any obligation, OP-1 tried to facilitate the complainant in finding tenant as a gesture of goodwill being a customer friendly organization. It appears that complainant is an investor and looking to the recession in the real estate market and apprehending not to earn expected profit on the invested amount, she is trying to back out from the commitments. No deficiency has been committed on the part of the OP-1 and the complaint deserves to be dismissed. OP-1 is ready and willing to handover the physical possession of the unit in question to the complainant upon receipt of the balance sale consideration and other charges by executing registered sale deed in favour of the complainant.
6. Certain preliminary objections were also made such as the complaint was time barred. Another objection was that complainant was not a consumer within the provisions of the Consumer Protection Act, 1986 nor there was any deficiency in service.
It was alleged that the property in question was commercial in nature and the complainant had invested in the said project with a view to earn profit by way of renting out the commercial space.
It was not meant for self employment.
It was also alleged that this Commission has no jurisdiction like territorial and pecuniary to try and entertain the complaint in as much as the subject matter of the present complaint was situated at Agra (UP). The amount of compensation claimed was also more than the pecuniary limit of this Honble Commission. On this ground also, the complaint was liable to be dismissed.
7. In reply on merits, it was stated that the name of Nike and the purpose carrying out the business of Footwear and Sports products was mentioned in the allotment agreement dated 5.5.2008 on account of the fact that OP-1 had entered into a term-sheet and agreement to lease dated 16.12.2005 with M/s Nike India Pvt. Ltd. and as per the same unit No. 23 was agreed to be taken on lease by the OP-2. This fact was within the knowledge of the complainant as was apparent from the perusal of the addendum of the allotment agreement dated 5.5.2008 (Annexure R-7). It was further alleged that arrangement of lease with M/s Nike India Pvt. Ltd was merely facilitating act on the part of the OP-1 in connection with the sale and purchase of the unit in question. It did not create any contractual obligation or rights at all between the complainant and the OP-1 much less any rights or obligations affecting the allotment agreement dated 5.5.2008 and the same cannot be the ground to refuse adherence to the allotment agreement. It is noteworthy that as per addendum dated 5.5.2008, it was agreed that OP-1 will pay assured monthly return of Rs. 77,236.66 per month to the complainant till the offer of possession or till the offer of fit-out, whichever was earlier, subject to deduction of TDS.
8. Rest of the plaint allegations were denied. It was specifically denied that OP-1 has failed to perform any of its obligations.
OP-1was neither deficient in providing service nor indulged in any unfair trade practice and the complaint was liable to be dismissed.
9. The OP-2 did not file any written version.
However, Ld. Counsel for the OP-2 stated that OP-2 was unnecessarily arrayed as OP-2 and moved an application for deleting the name of the OP-2 from the array of the parties. It was mentioned in the application that OP-2 was not aware of any assurances given by the OP-1 to the complainant that for purpose of carrying out business of Footwear and Sports products under the trade mark/brand name of Nike, the unit in question shall be taken by the OP-2 on monthly rent of Rs. 70,000/- or more per month. It was stated that OP-2 never entered into a contract with OP-1.
10. Complainant filed replication and refuted the written version of the OP-1. It was maintained that commercial space unit No. 23 on ground floor/shop in question was purchased to have the personal income for the livelihood purposes. Thus, complainant is a consumer within the meaning of the relevant provisions of the Consumer Protection Act 1986. It was denied that OP-1 completed the construction of the projection in or about Feb., 2010 well before stipulated time. OP-1 is a highly influential entity and is a big corporate giant and therefore, it was not difficult to obtain completion certificate from ADA, Agra. Merely because the OP-1 has obtained the completion certificate and NOC from the Fire department cannot be taken for granted that inner portion of the Mall/multiplex was completed. The Mall is still incomplete and no shop has been let out or rented out as assured by the OP-1. It was also maintained that despite various demands and requests by the complainant, OP-1 failed to handover the possession of the shop in question. OP-1 falsely represented that it has made an agreement with the Shoe Company of international Brand name Nike who will take the property in question on rent.
OP-2, M/s Nike India Pvt. Ltd., has stated on oath that no such agreement was ever entered into between the OP-1 & OP-2 with respect to property in question. Clause 9 of the agreement itself shows the misrepresentation, falsity and cheating commitment by OP-1. This clause of the agreement clearly shows that OP-2 shall be the tenant of the property of the complainant in question. The complainant shall pay a sum of Rs. 73 Lacs as a total cost out of which 95% had already been paid by the complainant at the time of agreement dated 5.5.2008. The complainant was also forced to pay an amount of Rs. 30 Lacs in cash after execution of the contract dated 5.5.2008 as OP-2 or any other tenant was not inducted in the property in question by the OP-1. Complainant is suffering loss of Rs. 15,000/- per day from 5.5.2008 and will continue to suffer in future. It was emphasized that OP-1 may call it a commercial deed but as a matter of fact, complainant has purchased the unit from OP-1 for livelihood purposes. The OP-1 has indulged in unfair trade practice and has also committed deficiency in service. This Commission has territorial jurisdiction as well as pecuniary jurisdiction to entertain the complaint.
11. Both the parties also filed evidence through affidavit in support of their cases. They also filed written arguments and relied upon the case law.
12. We have heard Sh. D. Goverdhan, Ld. Counsel for the Complainant, Sh. Mukti Bodh, Counsel for OP-1 and Ms. Ekta Sarin, Counsel for the OP-2 at length and have gone through the record, the arguments and the case law filed.
13. This complaint has been filed by the complainant against M/s Omaxe Ltd., OP-1, the construction Company, claiming damages of Rs. 77,23,843.67p with interest @ 15% p.a. along with payment of Rs. 15,000/- per day from 5.5.2008 till date of actual payment for harassment, frustration, mental pain and agony etc., and Rs. 1 Lakh towards cost of litigation. It was stated in the complaint that OP-1 allotted Unit No. 23 on ground floor admeasuring super area of approx. 1074.41 sq. ft. in Mall-cum-multiplex known as Wedding Mall, Agra for an approx. sale price of Rs. 72,96,222.23 for purpose of carrying out business of Footwear and Sports products under the Trade mark/Brand name of Nike of the OP-2. It has further been stated that OP-1 had promised the complainant that they will arrange brands like Nike and Arrow to take the complainants commercial space on rent on atleast Rs. 70,000/- p.m. or more. It has been alleged that due to bad and unsatisfactory construction by OP-1, OP-2 has terminated the contract with OP-1. Another brand Arrow has also not entered into any contract for carrying out business of Footwear and Sport products due to incomplete, bad and unsatisfactory construction of the shopping complex allotted to the complainant. The construction of the Mall and impugned unit No. 23 and the Mal-cum-Multiplex is still incomplete and promises of letting the unit concerned on a monthly rent of Rs. 70,000/- p.m till the leading brand take the property on rent was broken. OP-1 falsely misrepresented and malafidely induced the complainant to buy the property on false promises.
14. There is no dispute between the parties that complainant was allotted a shop bearing No. 23 on ground floor having approx super area of 99.815 sq. mt./1074.41 sq. ft. in the commercial complex. The basic sale price agreed upon was @ Rs. 73,097.45p (Rupees Seventy Three Thousand Ninety Seven and Forty Five paisa only) per sq. ft totalling to Rs. 72,96,222.23p (Rupees Seventy Two Lacs Ninety Six Thousand Two Hundred Twenty Two and Twenty Three Paisa only) plus additional charges and preferential location charges as applicable to the said unit for the purpose of carrying out business of Footwear and Sports products under Trade/Brand name Nike by OP-1. It was argued on behalf of the complainant that OP-1 had promised the Complainant that once the complainant purchased the above said commercial space in Wedding Mall Agra from that date the OP-1 will start paying the complainant rent @ Rs. 70,000/- per month till the time some leading brand take that commercial space on rent. It was also promised by the OP-1 to the complainant that they will arrange brands like Nike and Arrow to take commercial space of the complainant on rent at least Rs. 70,000/-p.m. or more. It has further been argued that OP-1 had always falsely misrepresented and made false promises that letting out of complainants commercial space to Nike and later on that another branch know as Arrow will take the complainants commercial space on rent at lease for Rs. 70,000/- p.m. or more, however, as the time lapsed, no brand came forward or shown interest with regard to the same due to OP-1s bad construction and unlawful activities. Today no one want to enter or invest in the complainants commercial project. The constructed structure was not as it was shown at the time of selling. Many new spaces have been created in the said mall. Till date Mall is incomplete and cannot be used as such. The complainant served legal notice dated 3.11.12 upon the OPs but no response was given by OP-1 & OP-2. The OP-1 failed to perform its part of agreement given to the complainant at the time of purchase of the above said commercial space and the period given in the notice dated 3.1.12 has expired. It was emphasised that the complainant was a widowed lady/senior citizen having been retired from the Government service as a Teacher. She has purchase the unit in question to have personal income for livelihood purposes. The complainant was deceived by OP-1 and was lured in buying the unit concerned. The complainant had invested her entire life savings and deposited 95% of the total amount in one go i.e. 69 Lacs. Though, she made full and final payment to OP-1 long ago but till date she has not been handed over possession of the shop in question. The commercial space is incomplete in all respect till today and thus the question of payment of additional and other charges does not arise. The question of false misrepresentation and duping by OP-1 for purchasing the commercial space in question is evident and proved beyond doubt through the application dated 8.10.12 moved by the OP-2 for deletion of its name from the array of OPs in the complaint. In Para 4 & Para 11 of the application, it has been stated that no such agreement was ever entered into between OP-1 & OP-2 with respect to said commercial space for taking the commercial space on rent and that the complainant or OP-1 had never contacted Nike for renting out the afore mentioned premises and for other purposes whatsoever. This clearly show the misconduct and cheating attitude of OP-1.
15. On the other hand, it was argued on behalf of the OP-1 that complainant had booked one commercial unit with OP-1 in the commercial project (Mall) to be developed by OP-1 under name and style Omaxe Wedding Mall Agra situated at plot No. 3.26, Bypass Road, Agra. Pursuant to above said booking, the Unit No. 23 on ground floor admeasuring super area approx. 1074.41 sq. ft. was allotted to the complainant through allotment letter/agreement dated 5.5.2008 (Annexure-R-2). According to clause 26-A of the allotment agreement, OP-1 had undertaken to complete the construction of the unit/commercial complex within 30 months from the date of signing of the allotment letter/agreement.
Thus from the date of signing allotment letter/agreement dated 5,5,08, the time of the completion of purchase was till December 2010, however, OP-1 completed the construction of the project prior to the stipulated time It was completed by Feb.2010. The completion certificate dated 10.3.2010 issued by ADA, Agra (UP) was on record at Annexure-R-3. The NOC certificate from Fire Department was also already on record as Annexure-R-4. The construction was carried out as per plans approved by the competent authority.
16. The complainant had opted for down payment plan and had paid a sum of Rs. 69,31,411/- amounting to 95% of the Basic Sale Price of the Unit.
The complainant further agreed to pay the balance 5% of the basic sale price and other additional charges @ Rs. 150/- per sq. ft. and IFMS charges @ 100/- per sq. ft., on offer of possession/fit out of the said unit. After completion of the construction, OP-1 offered the possession/fit out of the unit to the complainant and demanded balance payment from her through letter dated 22.2.2010. Copy of the letter as Annexure-R-5 is on record. Complainant failed to pay the same despite several oral and written requests and reminder letter dated 6.5.2010. Copy of the letter dated 6.5.2010 is Annexure R-6. Thus, complainant has rendered herself liable to pay holding charges apart from paying the balance sale consideration and other charges as per terms and conditions of the allotment. Thus, as on 19.3.2012, a sum of Rs. 11,72,797/- was due. The complainant had also failed to pay the maintenance charges.
17. Side by side to the allotment agreement dated 5.5.2008, there was also signed an addendum dated 5.5.2008 between the complainant and the OP-1 (Annexure-R-7).
As per the addendum agreement, the OP-1 agreed to pay the assured monthly return of Rs.77,236.66p per month to the complainant till the offer of possession or till the offer of fit out, whichever was earlier subject to deduction of TDS. Moreover, the said monthly assured return was subject to the condition that the allottee/complainant shall adhere to the conditions of the Allotment Agreement.
In compliance of the agreement, OP-1 paid return amount of Rs. 17,81,506/- and deposited TDS of Rs. 1,92,604/- for the entire period of payments. Copies of the certificates of TDS are on record as Annexure-R-8(Colly). OP-1 was obliged to pay the return amount only till the offer of possession/fit out dated 22.2.2010. However, as a goodwill gesture, OP-1 had made payment till 31.3.2010. The aforesaid payment was made by the OP-1 subject o the condition that complainant shall adhere to the conditions of allotment. However, it appears that the intentions of the complainant have turned dishonest and she wants to back out from the commitments made by her. It was also maintained that OP-1 tried to facilitate the complainant in finding tenant as gesture of goodwill and being a customer friendly organisation. The complainant is a investor and looking to the recession in the real estate market and apprehending not to earn expected profit on the invested amount, she is trying to back out from the commitments made by her.
The complaint was thus merit-less and there was no deficiency in service committed by the OP-1. It was further maintained that OP-1 was ready and willing to handover the possession of the unit concerned to the complainant upon receipt of balance sale consideration and other charges including holding charges and maintenance charges.
18. In written statement filed by the OP-1, certain preliminary objections were raised:
(a) Present complaint was time barred.
(b) The Commission has no territorial jurisdiction to entertain the complaint.
(c ) The complaint discloses no cause of action
(d) The complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986.
Neither there was any deficiency of service nor any indulgence in unfair trade practice on the part of the OP-1.
19. However, during the course of arguments by the counsel for the parties, only one point was emphasised and argued i.e. whether the complainant was a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. All other preliminary objections were taken to be minor and were not argued. It was argued on behalf of OP-1 that property in question was commercial in nature and the complainant had invested in the said Mall-cum-Multiplex commercial project by purchasing unit No. 23 on the ground floor with a view to earn profit by way of renting out the commercial space and not by way of self employment as alleged by the complainant. The case of the complainant is that she is a widowed lady/senior citizen having been retired from Government service as a School Teacher. She spent her entire life savings in purchasing the unit in question in the Weeding Mall of Agra at sale price of Rs.72,96,222.23p and paid 95% of the basic sale price with a view to have a personal income for livelihood purpose.
But the OP-1 deliberately stopped payment of rent and also trying to grab the property. In support of their arguments, parties have relied upon several decided case law. OP-1 has referred to the ruling of this State Commission in Vasa. Vs. Today Home and Infrastructure Pvt. Ltd and Ors in Complaint Case No. 2008/195 decided on 28.2.2013.
(ii) Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd 2010 (4) CPJ 299 (NCDRC).
(iii) Saavi Gupta & Anr Vs Omaxe Azorim Developers Pvt. Ltd. Reported as IV (2002) CPJ 327 (NC), decided on 1.10.12 by NCDRC, New Delhi.
20. Complainant also relief upon the following rulings:
(i) Laxmi Engineering Works Vs. P.S. G. Industrial Institute AIR 1995 SC 1428.
(ii) Narne Construction Vs. UOI - 2012 (5) SCC 359
(iii) LDA Vs. M.K. Gupta 1994 (1) SCC 243
(iv) GDA Vs. Balbir Singh AIR(2004) SC 2141
21. We have gone through these rulings and principle of Law held. It is well settled law that when a person has bought goods or availed of services within the meaning of the definition of Consumer is a question of fact to be decided in facts and circumstances of each case. A person who buys goods or avails of services himself/herself exclusively for purpose of earning his/her livelihood by means of self employment is within the definition of expression Consumer.
22. A very recent case - R.K. Puri Vs. Standard Chartered Bank in First Appeal No. 2013/239 has been decided on 9.10.2012 by this Commission is directly on this point. In this case, it has been held that the Consumer Protection Act is a beneficial legislation and any restricted interpretation of the commercial clause in the Consumer Protection Act will not be in conformity with the purpose and objects of the Act. Unless, therefore, there is clear cut case that the transaction was commercial. Court must lean in favour of the same. If otherwise, if the consumer courts start placing such transaction in the commercial arena, the very purpose of the Consumer protection Act will be frustrated. It was further held that there was no indication that the complainant/appellant was a limited company and a person who runs cold storage must be deemed to be carrying no such activities for the personal livelihood. In this view of the matter, it would not be appropriate to classify the deal as a commercial transaction.
23. Facts of the present case are peculiar in nature in as much as on the very face of it, the transaction looks commercial in nature, however, we should keep in mind the very purpose of the enactment of the Consumer Protection Act and also purpose for which explanation was added to Section 2 (1) (d)(ii).
The complainant retired as a Government Servant and is a widowed lady and senior citizen. It was stated that through this investment her entire life savings were spent in purchase of this unit for having a personal income for livelihood purposes. She was a petty teacher and not an entrepreneur or any other man engaged in any other big business, therefore, there appears an element of truth in her allegations that the purchase of the unit in Mall-cum-Commercial Multiplex was not of kind of profit motive but to have a personal income for livelihood purpose, so that she could live in peace without any financial difficulties for rest of her life. Therefore, we come to the conclusion that she was a Consumer within the meaning of the Consumer Protection Act, 1986 having been covered under the explanation added w.e.f 15.3.03 to Section 2(1)(d)(ii) of the Consumer Protection Act 1986.
24. The another matter of dispute between the parties was whether OP-1 deliberately stopped the payment of rent promised with the complainant in breach of the agreement and also whether there was any misrepresentation and malafide on the part of the OP-1.
25. Side by side to the allotment agreement dated 5.5.2008, there was also signed an addendum dated 5.5.2008 between the complainant and the OP-1 (Annexure-R-7 and Exhibit RW1/7). As per the addendum agreement, the OP-1 agreed to pay the assured monthly return of Rs.77,236.66p per month to the complainant till the offer of possession or till the offer of fit out, whichever was earlier subject to deduction of TDS. Moreover, the said monthly assured return was subject to the condition that the allottee/complainant shall adhere to the conditions of the Allotment Agreement. In compliance of the agreement, OP-1 paid return amount of Rs. 17,81,506/- and deposited TDS of Rs. 1,92,604/- for the entire period of payments. Copies of the certificates of TDS are on record as Annexure-R-8 (Colly). OP-1 was obliged to pay the return amount only till the offer of possession/fit out dated 22.2.2010. However, as a goodwill gesture, OP-1 had made payment till 31.3.2010.
26. We have carefully considered this aspect of the matter and we find that there has not been any violation or breach of the addendum agreement dated 5.5.2008 but we are constraint to note that an element of misrepresentation and duping was there in shrewd dealing of the builder OP-1 with the complainant. In compliance of the addendum agreement dated 5.5.2008, OP-1 paid return amount of Rs. 17,81,506/- and deposited Rs. 1,92,604/- towards TDS till possession/fit out date 22.2.2010.
Even the return payment of one more month till 31.3.2010 was made but the fact remains that OP-1 made a false representation and malafidely induced the complainant to buy the property on false promises. A promise of payment on rent @ Rs. 70,000/- p.m. or more was made till the leading brand like Nike or Arrow took over the property on rent for carrying of business of Footwear and Sports Products. It was made to appear to the complainant that OP-1 has entered into an agreement with Nike, an international Brand of Sport products for renting out the property in question at a monthly rental of Rs. 70,000/- p.m. or more.
27. During the course of hearing, OP-2, Nike India Pvt. Ltd moved an application dated 8.10.121 for deletion of its name OP-2 from the array of the parties. The application was supporting by an affidavit. IN Para 4 of this application it has been clearly mentioned that OP-2 never entered into any agreement with the OP-1 let alone a contract of the nature mentioned in the complaint. No documents were filed by the OP-1 to show any kind of agreement or contract between OP-1 & OP-2. In para 12 of the application, it has been stated that OP-2 bears no relation with the OP-1 and reserves its right to initiate action against it for falsely representing that its shop would be taken for rent by applicant.
Therefore, the promise of arranging brands like Nike & Arrow to take the complainants commercial space on rent on at least Rs. 70,000/- p.m. or more was a shrewd move on the part of the OP-1, Builder to induce the complainant to purchase the commercial space in shopping mall-cum-multiplex. Due to false promise made out by the OP-1, complainant was induced/duped to purchase the property for having rental income of Rs. 70,000/- p.m. or more.
28. It should be noted that the contracts/agreements are always lengthy and couched in such a way that it always favours or leans towards the builder and it is not easily comprehensible by ordinary customers. It has also to be noted as held in T.G. Abraham Vs. M.D. Kerela SRTC 2004 (3) CPJ 6 that Consumer courts are not expected to go in technicalities of Civil or Criminal Jurisprudence. Evidence Act or CPC are not applicable to proceedings before the Consumer Courts.
Disputes are to be decided on yardstick of reasonableness and probability. Principle of Natural Justice do apply in full force.
29. In view of these facts, circumstances and legal positions, we come to the conclusion that the OP-1 has indulged into unfair trade practice in the entire transaction. We further come to the conclusion that the complainant was a Consumer within the meaning of Section 2(1)(d)(ii) explanation of the Consumer Protection Act 1986.
30. It is admitted by the OP-1 that the complainant opted for down payment plan to purchase the property in question and a sum of Rs. 69,31,411/- amounting to 95% of Basic Sale Price of the selling was paid. The balance 5% was to be paid in future. As noted earlier, OP-1 has indulged into unfair trade practice and was, therefore, liable to compensate the complainant for the financial loss and injury caused to her as held by Honble Apex Court in GDA Vs. Balbir Singh AIR 2004 SC 2141. Therefore, we hold as follows:
(a) OP-1, M/s Omaxe ltd. Shall pay to the complainant a sum of Rs. 69,31,411 along with 9% interest p.a. from 05.05.2008 till the date of actual payment within a period of one month from the date of receipt of copy of the judgement/order.
(b) OP-1 shall further pay a sum of Rs.
25,000/- towards cost of litigation.
(c ) Complaint is dismissed against other reliefs.
31. The complaint is decided accordingly against the OP-1. The complaint is dismissed against OP-2.
32. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
33. Pronounced on 12.11.2013 ( S.A. SIDDIQUI) PRESIDING MEMBER (S.C. JAIN) MEMBER rn