State Consumer Disputes Redressal Commission
1. M/S Chandigarh Overseas Private ... vs Anuj Walia on 2 April, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U
STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal Case No.
:
62 of 2012
Date of Institution
:
21.02.2012
Date of Decision
:
02.04.2012
1.
M/s Chandigarh
Overseas Private Limited, SCO 196-197, Top Floor, Sector 34-A, Chandigarh, through its
Director.
2.
Green Field Sites,
Management Private Limited, SCO 196-197, Top Floor, Sector 34-A, Chandigarh, through its
Director.
Appellants
V E
R S U S
Anuj Walia S/o Col.Madan Mohan, R/o
H.No.1056, Sector-11, Panchkula
....Respondent.
Appeal U/s 15 of
Consumer Protection Act, 1986
BEFORE: MR.
JUSTICE SHAM SUNDER, PRESIDENT.
MRS. NEENA SANDHU,
MEMBER.
Present: Sh. K. S. Lang, Advocate for the appellants Sh. Gaurav Bhardwaj, Advocate for the respondent PER MR. JUSTICE SHAM SUNDER, PRESIDENT This appeal is directed against the order dated 17.1.2012, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint and directed the Opposite Parties(now appellants) as under ;
It is held that the Complainant had a right to exercise the Buy- Back Option. So, the OPs are directed to pay, jointly and severally, Rs.7,50,000/- to the complainant alongwith Rs.50,000/- as compensation for mental agony and harassment. The OPs shall also pay to the complainant a sum of Rs.10,000/- as costs of litigation. This order be complied within one month from the date of receipt of the certified copy of this order, failing which the OPs shall liable to pay interest @ 12% p.a. on the entire amount from the date of filing of the complaint i.e. 13.09.2011 till its realization besides costs of litigation.
2.. The facts, in brief, are that the Opposites Parties floated a scheme known as Small Investor Scheme under the name and style of Industrial Knowledge (Fashion Technology) Park, Sector 90, Mohali. The complainant deposited a sum of Rs.3,75,000/- vide receipts No.343, 952 and 1024 dated 22.8.2006, 13.11.2006 and 12.12.2006 respectively of Rs.1,25,000/- each. He also deposited Rs.1,00,000/- vide receipt No. 1574 dated 19.2.2007. It was stated that on 18.2.2007, the parties entered into Developer Buyer Agreement and Lease Agreement. As per the terms and conditions of the Lease Agreement, the complainant was eligible for buy back option. It was further stated that the complainant paid a total amount of Rs.4,75,000/- and an amount of Rs.25,000/- was to be paid at the time of delivery of possession. It was further stated that, as per Clause No.18 of the Agreement, the unit was to be handed over after 30 months of the start of construction. It was further stated that since the complainant was having a buy back option, so he had the right to get Rs.7,50,000/-, after exercising the said option. Accordingly, the complainant exercised the buy back option on 25.3.2009. Thereafter, he received a letter dated 22.6.2009 from Opposite Party No.2, stating therein that according to Clause 4.1, he was entitled to a minimum lease rent of Rs.30,000/- p.a. per unit. It was further stated that in case, the complainant intended to exercise the buy back option, he could exercise the same from the date of start of construction. It was further stated that as the construction started on 19.7.2007, the period of 30 months expired on 18.1.2010. It was further stated that the complainant received a cheque of Rs.12,097/- as compensation for the period from 19.1.2010 to 31.3.2010 and another cheque of Rs.15,000/- as compensation for the period from 1.4.2010 to 30.6.2010. It was further stated that as per Clause 28 of the Developer Buyer Agreement, the Opposite Parties were required to pay compensation of Rs.50/- Sq.ft./month for delay in the construction w.e.f. 18.1.2010. According to Clause 4.1 of the Lease Agreement, the Opposite Parties, were required to pay Rs.30,000/- p.a. as minimum assured lease money. It was further stated that the complainant neither received the compensation, nor the buy back amount from the Opposite Parties. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by him.
3. The Opposite Parties, in their written version, pleaded that the complainant was not a consumer, and, as such, the complaint was not maintainable.
It was further pleaded that, as per the Developer Buyer Agreement, in case of any dispute, between the parties, the matter was to be referred to the Arbitrator, and, as such, the complaint was not maintainable. It was stated that the buy back option was not applicable because the complainant had not got the possession of the unit, and the full amount of the unit, was not paid to Opposite Party No.1. It was further stated that the complainant was entitled to exercise the buy back option and also to get lease amount, only after the delivery of possession. It was further stated that Opposite Party No.1 had issued cheque No.463647 dated 7.10.2011 in the sum of Rs.45,000/-. It was further stated that Opposite Party No.1 had also paid the compensation from time to time to the complainant. It was further stated that the delay in construction, at the site, was due to global recession during the year 2007-2009. It was further stated that had there been no global recession, the construction work would have been completed, within the stipulated period. It was denied that the Opposite Parties were deficient, in rendering service or indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The parties led evidence, in support their case.
5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, was filed by the appellants/ Opposite Parties.
7. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
8. The Counsel for the appellants , submitted that the Unit was purchased by the complainant, for running a commercial activity, to earn profits. He further submitted that even in the complaint, it was not averred that the unit was purchased for supplementing income, by way of self employment. He further submitted that even in R1 Application Form, moved by the respondent/complainant, he described himself as a doctor. He further submitted that, under these circumstances, it could not be said that the Studio/Unit was purchased by him, for the purpose of earning his livelihood, by way of self employment, and, as such, his Consumer Complaint was not maintainable. It is evident from the Developer Buyer Agreement C5 , that the total area of the unit was 100 sq. feet and the total price thereof was Rs.5 lacs. Keeping in view the area of the unit, it could be said that it was a small one. From the mere fact that the respondent/complainant, was a doctor, by profession, did not mean that he wanted to run a commercial venture, on a large scale, by employing a number of persons, with the sole motive of earning profits. The complainant purchased the Studio/Unit of a small size, referred to above, for supplementing his income, by way of self employment, under the Small Investors Scheme. Therefore, by no stretch of imagination, it could be said that the complainant had purchased the unit for running commercial venture, on a large scale, with a view to earn profits. Under these circumstances, it could not be said that the complainant did not fall under the definition of a consumer , and, as such, the Consumer Complaint was not maintainable. The submission of the Counsel for the appellants, in this regard, being devoid of merit, must fail, and the same stands rejected.
9. The Counsel for the appellants, however, placed reliance on Rakesh Kumar & Anr. Vs Parsavnath Developers Ltd. & Anr I(2011)CPJ 224, Ishwar Singh Vs Dakshin Haryana Vidyut Prasaran Nigam Ltd 2011(3) CLT 37 and Nijjar Cold Storage, Kapurthala and another Vs Jarnail Singh 2009(1)CLT 462, in support of his contention that since the Unit was purchased by the complainant, for running a commercial venture, on a large scale, he did not fall within the definition of a consumer, and, as such, the Consumer Complaint was not maintainable. In Rakesh Kumars case (supra), decided by the Delhi State Consumer Disputes Redressal Commission, the complainants booked two shops, in the Mall, by depositing Rs.15,03,500/- and 15,09,514/- respectively, the total consideration being Rs.28,62,363/-.
The complainants, in that case, were practicing advocate and his wife. There was, no averment, in the complaint, that the shops were purchased for running business for earning livelihood, by way of self employment. Later on, an application was moved for the amendment of complaint, for incorporating the averment, that the same were purchased for earning livelihood, by way of self employment, but the same was rejected. It was, under these circumstances, that the Delhi State Consumer Disputes Redressal Commission held in Rakesh Kumars case(supra) that since the shops were purchased for running commercial activities, on large scale, and not for earning livelihood, by way of self employment, by the complainants, they did not fall within the definition of consumers. In Ishwar Singhs case (supra), an electricity connection, for atta chakki (flour mill), was obtained by the complainant, in his house. In the complaint, it was nowhere pleaded that the atta chakki was being installed for his own use, or it was meant for earning his livelihood. Under these circumstances, it was held, in this case, that since the atta chakki was installed for commercial purpose, to gain profits, the complainant did not fall within the definition of a consumer, and, as such, the Consumer Complaint, was not maintainable. In Nijjar Cold Storages case (supra), the complainant was having a cold storage, wherein, he was keeping potatoes of so many persons, on a large scale, for earning profits. Even, no averment, was made in the complaint, that the Cold Storage was being run by the complainant for earning his livelihood, by way of self employment. Under these circumstances, this Commission, held, in the aforesaid case that the complainant did not fall within the definition of a consumer and the Consumer Complaint was not maintainable. The facts of the aforesaid cases, referred to in this paragraph, are completely distinguishable, from the facts of the instant case. In these circumstances, no help, can be drawn, by the Counsel for the appellants therefrom.
The submission of the Counsel for the appellants, being devoid of merit, must fail and the same stands rejected.
10. There is letter dated 22.6.2009 annexure C-9, which was written by the appellants, to the complainant, wherein, they stated that they had already made a buy back offer of the unit for Rs.7.50 lacs, which was to be exercised by the complainant within 30 months from the start of construction and, such option was to expire on 18.1.2010. Vide letter dated 25.3.2009 Annexure C8, copy whereof is at page 55 of the District Forum file, the complainant had already exercised the buy-back option. Once the offer was made by Opposite Party no.2, to buy-back the unit, from the complainant for Rs.7.50 lacs, and that offer was accepted, by the complainant, within the stipulated period, they were bound to pay the amount of Rs.7.50 lacs, but they failed to so. This act, on the part of the Opposite Parties, amounted to deficiency, in rendering service and indulgence into unfair trade practice. The District Forum was also right, in holding so.
11. The next question, that arises for consideration, is, as to whether, the complainant was entitled to compensation for mental agony and physical harassment or not. It may be stated here, that way back on 18.2.2007, the unit was allotted to the complainant. He deposited Rs.4,75,000/- against the sale consideration of Rs.5.00 lacs. He was not handed over possession of the unit within 30 months from the date of start of construction. Even no construction was started, as stated by the Opposite Parties, as according to them, there was global recession. The complainant, throughout, was hopeful to get possession of the unit, for supplementing his income by running some activity, in the unit, by way of self employment, but his hopes were dashed to the ground. The amount deposited by the complainant was illegally and improperly withheld by the Opposite Parties for a long period. The complainant, thus, underwent a tremendous mental agony, and physical harassment, on account of the aforesaid acts of the Opposite Parties. The District Forum was, thus, right in awarding compensation in the sum of Rs.50,000/- to the complainant. The findings of the District Forum, in this regard, being correct, are affirmed.
12. Coming to the submission of the Counsel for the appellants , that since the remedy for settlement of disputes, by way of arbitration, was provided as per Clause 22 of the Developer Buyer Agreement, aforesaid, executed between the parties, the Consumer Complaint was not maintainable, it may be stated here, that the same does not merit acceptance.
With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection Act,1986, is required to be made, which reads as under ;
3.Act not in derogation of any other law.
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Section 3 of the Act, is worded, in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere fact that the remedy of arbitration, has been provided, in the Agreement dated 29.12.2006, that would not oust the jurisdiction of the Consumer Fora, in view of Section 3 of the Act. Similar principle of law, was laid down in Fair Engg. Pvt. Ltd. & another Vs N.K.Modi (1996)6 SCC385 and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC233. In this view of the matter, the submission of the Counsel for the appellants, being devoid of merit, must fail, and same stands rejected.
13. No other point, was urged, by the Counsel for the parties.
14. In view of the discussion above, it is held that the order impugned does not suffer from any illegality or perversity, warranting the interference of this Commission and the same deserves to be upheld.
15. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
16. Certified Copies of this order be sent to the parties, free of charge.
17. The file be consigned to the Record Room, after completion Pronounced.
April 02 ,2012 Sd/-
[JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] *Js MEMBER