State Consumer Disputes Redressal Commission
Rupy Minhas vs M/S Baba Estates And Colonizers on 30 August, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 258 of 2017 Date of Institution : 27.03.2017 Date of Decision : 30.08.2017 Rupy Minhas wife of Shri Surinder Minhas, resident of House No.757/1, Sector 40-A, Chandigarh. ......Complainant V e r s u s M/s Baba Estates and Colonizers, through its Managing Partner, Regd. Office at SCO No.87, Sector 44-C, Chandigarh. Ravnish Sharma, Partner, M/s Baba Estates and Colonizers, SCO No.87, Sector 44-C, Chandigarh. M/s. Shri Shivjot Developers and Builders Limited, through its Managing Director, Opposite Court Complex, Ropar Road, Tehsil Kharar, District SAS Nagar, Punjab. ....Opposite Parties Argued by: Sh.Vikas Jain, Advocate for the complainant. Sh. Sunil Kumar, Advocate for Opposite Parties. Complaint case No. : 259 of 2017 Date of Institution : 27.03.2017 Date of Decision : 30.08.2017 Rupy Minhas wife of Shri Surinder Minhas, resident of House No.757/1, Sector 40-A, Chandigarh. ......Complainant V e r s u s M/s Baba Estates and Colonizers, through its Managing Partner, Regd. Office at SCO No.87, Sector 44-C, Chandigarh. Ravnish Sharma, Partner, M/s Baba Estates and Colonizers, SCO No.87, Sector 44-C, Chandigarh. M/s. Shri Shivjot Developers and Builders Limited, through its Managing Director, Opposite Court Complex, Ropar Road, Tehsil Kharar, District SAS Nagar, Punjab. ....Opposite Parties Argued by: Sh.Vikas Jain, Advocate for the complainant. Sh. Sunil Kumar, Advocate for Opposite Parties. Complaints under Section 17 of the Consumer Protection Act, 1986. BEFORE: MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER.
PER DEV RAJ, MEMBER.
Vide this common order, we are disposing of aforesaid two consumer complaints bearing Nos.258 and 259 both of 2017.
2. To dictate order, facts are being take from Consumer Complaint bearing No.258 of 2017 titled "Rupy Minhas Vs. M/s. Baba Estates and Colonizers & Ors.'
3. The facts in brief are that the Opposite Parties in a joint venture launched a residential and commercial township project under the name and style of "Shivjot Apartments" at Shiv Jot Enclave, Opposite Kharar Court Complex, Greater Mohali. The husband of the complainant, being a civil work contractor, is engaged in construction business under the name and style of M/s. Unique Enterprises. It was stated that the Opposite Parties had engaged her husband to do civil and construction work of the project in question but the complainant has nothing to do with the construction work. It was further stated that the husband of the complainant had to receive remuneration for his job work and services. It was further stated that since the complainant had planned to book flats in the aforesaid project, Opposite Parties No.1 & 2 offered to sell a flat for Rs.22.50 Lacs. Accordingly, two adjoining Flats bearing Nos.134/1 and 135/1 with two bedrooms each, in Block 6, in Shivjot Apartments were booked, so that both the flats would be amalgamated and converted into four bed room flat for her own residence. The complainant paid Rs.1 Lac in cash as down payment on 09.05.2012 vide receipt (Annexure C-1). It was assured that the buyer's agreement would be executed in due course and there was no risk of allotment of the flats, in question. It was offered that the amount, which was payable to the husband of the complainant by the Opposite Parties in lieu of his services would be adjusted towards additional payments in respect of the flats booked by the complainant and, as such, Rs.3 Lacs, against remuneration, was got adjusted towards the installment of Flat No.134/1 in the account of the complainant vide receipt dated 13.12.2012 (Annexure C-2) and the said amount was further debited in the account of M/s. Unique Enterprises vide receipt dated 18.06.2013 (Annexure C-3).
4. It was further stated that as on 31.03.2014, the complainant had paid a total sum of Rs.4,50,000/- towards Flat No.134/1 to the Opposite Parties. It was further stated that when the Opposite Parties failed to execute Buyer's Agreement till 31.03.2014, the complainant vide letter dated 01.04.2014 (Annexure C-4) requested the Opposite Parties to refund the amount of Rs.4,50,000/-. It was further stated that in response to the aforesaid letter, the Opposite Parties vide letter dated 07.04.2014 (Annexure C-5) had taken illegal stand that there was deficiency in the work carried out by the husband of the complainant and, as such, the amount of Rs.4,50,000/- paid by her would be adjusted towards the bills of M/s Unique Enterprises. It was further stated that the real intention of the Opposite Parties is to grab the hard earned money of the complainant and nothing else.
5. It was further stated that earlier, the complainant had filed consumer complaint bearing No.299 of 2014 in the District Forum against these very Opposite Parties, wherein Opposite Parties No.1 & 2 settled the accounts with the husband of the complainant and also settled the dispute regarding the flats booked by the complainant. It was further stated that an amount of Rs.18 Lac was adjusted towards full and final balance payment in respect of Flat No.134/1 out of the amount due to be paid by the Opposite Parties to the husband of the complainant vide receipt dated 30.07.2014 (Annexure C-6). It was further stated that since Opposite Parties No.1 & 2 showed their inability to allot Flat No.134/1, the complainant accepted allotment of Flat No.96, 2nd Floor in Block 4 of the said Shivjot Apartments vide allotment letter dated 30.07.2014 (Annexure C-7). Buyer's Agreement/ Agreement to Sell was also executed on 30.07.2014 acknowledging receipt of full and final sale consideration of Rs.22.50 Lacs (Annexure C-8). It was further stated that the previously instituted complaint bearing No.299 of 2014 was dismissed as withdrawn on 03.09.2014 by the complainant after execution of necessary document by the Opposite Parties in her favour and in terms of assurance given that possession of the flats would be handed over before 30.09.2015.
6. It was further stated that Opposite Parties No.1 & 2 vide letter dated 23.03.2015 (Annexure C-9) illegally demanded Rs.69,525/- on account of service tax on total sale consideration of Rs.22.50 Lacs. It was further stated that the housing project has been delayed beyond a reasonable time frame and the state of affairs of the Opposite Parties is so dismal that the complainant was left with no other option except to seek refund of the amounts already paid/adjusted as full and final payment from time to time in respect of bookings of the flats, in question. It was further stated that the project, in question, is still incomplete and the construction of the flats is also incomplete without having any basic amenities or infrastructure. It was further stated that even the occupation/completion certificate has not been obtained by the Opposite Parties. It was further stated that the present complaint has been filed in respect of Flat No.96 (2 BHK), 2nd Floor, Block 4 in Shivjot Apartments @ Baba Apartments.
7. Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties to refund the amount of Rs.22,50,000/- alongwith interest @18% p.a. from the date of respective deposits/adjustments till date of actual payment; pay Rs.1,00,000/- as damages on account of unfair trade practice, misappropriation, breach of trust and loss suffered on account of payment of rent paid; Rs.2,00,000/- as damages and compensation on account of mental agony/torture and physical harassment suffered on account of deficiency in services and making false assurances and Rs.55,000/- towards litigation/counsel fee and any other relief, which this Commission deems fit in the facts and circumstances of the case.
8. Opposite Parties No.1 & 2, in their joint written statement, took-up certain preliminary objections, to the effect, that the complainant has not approached the Commission with clean hands and concealed the material facts and no cause of action arose to the complainant to file the instant complaint. On merits, it was stated that Opposite Parties No.1 & 2 are partnership concern having a project of construction of flats in Village Aujla, Opp. District Court Kharar, under the name and style of M/s Baba Estate and Colonizers, duly approved by Govt. of Punjab. It was further stated that initially the contract was given to one M/s Engineers and Constructions, however, subsequently, the work was allotted to M/s Unique Enterprises Construction whose proprietor is Sh. Surinder Minhas, husband of the complainant, vide work agreement dated 14.06.2012. It was further stated that it was agreed that husband of the complainant would construct 22 flats in Block No.5 and would complete interior civil work in remaining 50 flats in Block No.5 and he was also awarded contract to construct 72 flats in Block No.4. It was further stated that the rate were agreed upon between the parties @Rs.900/- per sq. ft. for Block No.4 and Rs.875/- per sq. ft. for Block No.5 including constructing foundation, RCC, Pillars, Brick walls, internal walls, fixing window, Chokats, laying roof slabs, providing tile terracing, bitumen coating making elevations as per drawing, laying of shelf etc. It was further stated that Opposite Parties No.1 & 2 had already constructed a sample flat bearing No.109, Ground Floor, Block No.5 and it was mutually agreed that construction and civil work undertaken by the husband of the complainant shall be as per the specifications and at par with sample flat.
9. It was further stated that an advance of Rs.20 Lacs was given to the husband of the complainant for getting the work done within the stipulated period i.e. by December 2012 but there was enormous delay on the part of her husband and he stretched the work upto December 2013. It was further stated that the work was not being conducted as per specifications given and there was deficiency in execution of the civil work. It was further stated that the material being used was of sub-standard quality. It was further stated that vide notice dated 14.05.2014, the husband of the complainant was requested to supply the bills of all the material purchased by him from the date of inception of the work contract agreement till he left the same voluntarily. It was further stated that the husband of the complainant and his proprietorship concern enormously delayed the execution of the work and, as such, Opposite Parties No.1 & 2 suffered monetarily on account of delay on his part.
10. It was further stated that Block No.5 as agreed was to be completed by December 2012 and Block No.4 was to be completed within a period of 18 months, however, Block No.5 was left incomplete by the husband of the complainant and out of 72 flats of Block No.4, only 16 roofs were completed by him and he opted to leave the work in middle. It was further stated that despite repeated requests to complete Block No.4, the husband of the complainant did not start work and, as such, the same was being got completed from another contract.
11. It was stated that the husband of the complainant got allotted two flats @Rs.22,50,000/- per flat in the name of his wife, with an understanding that the amount due against the bills supplied by him shall be adjusted towards the payment in respect of flats, in question. It was stated that first allotment letter was issued on 20.06.2014 for Flat No.135, 1st Floor, in Block No.6 and another allotment letter was issued for Flat No.96, 2nd Floor, Block No.4. It was further stated that the husband of the complainant stopped the work and had already availed more amount than the work done, as was clear from his last bill dated 21.06.2013, which showed an excess amount of Rs.5,74,241/-. It was further stated that smelling a foul play on the part of husband of the complainant, Opposite Parties No.1 & 2 did not deliver possession of the aforementioned flats and demanded the amount as mentioned in the allotment letters, which had been adjusted towards the bills, failing which, the allotment was to be cancelled. It was further stated that even today, Opposite Parties No.1 & 2 have been restricting their claim to Rs.12,77,965.00 (i.e. Rs.57,77,965.00 minus (-) Rs.45,00,000.00).
12. It was further stated in order to have possession and get executed the sale deed, the husband of the complainant was required to pay Rs.45 Las. It was further stated that Opposite Parties No.1 & 2 also filed a recovery suit of the excess amount of Rs.12,77,965/- against the husband of the complainant, which is pending in the Court of Ms. Jubliee, Civil Judge (Junior Division), Kharar. It was further stated that since no payment was ever made by the complainant against allotment of Flat No.96, the allotment of the flats was cancelled. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 & 2, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
13. Opposite Party No.3, in its written statement, stated that it had entered into joint venture with Opposite Parties No.1 and 2 i.e. M/s Baba Estate and Colonizers through its Managing Partner, namely, Ravnish Sharma and Opposite Party No.3 is also one of the partner with M/s Baba Estate and Colonizers through Sh. Baljit Nain. It was further stated that in lieu of some remaining payment to be made by Baba Estate to Opposite Party No.3, Opposite Partis No.1 and 2 had allotted flat No.105/2 & 105/3 in Block 4 and flat No.139/2, 139/3 & 140/2 and 140/3 in Block 6 in Baba Apartments to Baljit Singh in lieu of full and final payment towards him on account of land cost of Opposite Party No.3. It was further stated that the above stated flats were in addition to 37 flats already allotted to Shivjot Developers on account of profitability as well as land cost in the said project. It was further stated that the terms and conditions set forth as per MOU dated 05.06.2014, were in addition to earlier MOU dated 21.08.2011 and partnership deed dated 03.03.2011 (Annexures OP-3/A to OP-3/C). It was further stated that the dispute was among the complainant and Opposite Parties No.1 & 2 only as the flat falls in the project being developed by them and Opposite Party No.3 has no concern whatsoever. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
14. The complainant filed rejoinder, wherein she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Parties No.1 & 2.
15. The complainant, in support of her case, submitted her affidavit, by way of evidence, alongwith which, a number of documents were attached.
16. Opposite Parties No.1 & 2, in support of their case, submitted the affidavit of Opposite Party No.2, namely, Sh. Ravnish Sharma, Partner, by way of evidence, alongwith which, a number of documents were attached.
17. Opposite Party No.3, in support of its case, submitted the affidavit of its Managing Director, namely, Sh. Baljit Nain, by way of evidence, alongwith which, a number of documents were attached.
18. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
19. It is evident on record that the complainant had booked flat bearing No.134/1, Block 6 in the project of the Opposite Parties, namely, Shivjot Apartments, situated at Kharar, Distt. Mohali (Punjab) and she paid Rs.1,00,000/- by way of cheque No.177712 dated 09.05.2012 as booking amount, acknowledged vide receipt No.274 dated 09.05.2012. Thereafter, the Opposite Parties got adjusted a sum of Rs.3 Lacs, which was to be paid by the Opposite Parties to the husband of the complainant towards installment of the flat, in question. Receipt bearing No.444 dated 13.12.2012 (Annexure C-2) was issued. The complainant also paid a sum of Rs.50,000/- through RTGS, for which receipt dated 18.06.2013 was issued (Annexure C-3). It is on record that in lieu of initially allotted flat, the complainant was allotted Flat No.96, 2BHK, Second Floor measuring 1050 sq. ft. (approx.) including stairs etc in the said project 'Shivjot Apartments, situated at Kharar, Distt. Mohali (Punjab) against a total consideration of Rs.22,50,000/-, vide allotment letter dated 30.07.2014 (Annexure C-7). Agreement to Sell qua the aforesaid flat No.96 was executed on 30.07.2014 (Annexure C-8). Opposite Parties No.1 & 2 alongwith their reply have annexed copies of allotment letter dated 20.06.2014 and Agreement to Sell dated 20.06.2014 (Annexure OP/1-2/M). The documents annexed by the complainant, being later in date, are relevant. In the agreement to sell aforesaid, it was clearly mentioned that the Opposite Parties had received the amount in the following manner:-
Sr. No. Due Date Own Contribution Financial Institution's Construction Total
1.
9/5/12 100000/-
Ch.177712 100000/-
2. 13/12/12 300000/-
Adjustment in bill 400000/-
3. 20/6/14 18,50,000/- (*) Full and Final against Adjustment of bill (unique Enterprises) 22,50,000/-
4. Possession in 15 months Dated 30/9/15 (*) Out of this amount, a sum of Rs.50,000/- was, in fact, paid by the complainant through RTGS.
20. In letter dated 07.04.2014 (Annexure C-5) sent to the complainant (in reply to her notice dated 01.04.2014), the Opposite Parties stated that the husband of the complainant owed more than Rs.12 Lacs to them (Opposite Parties) on account of excess money received by him on account of work undertaken by the Opposite Parties besides using sub-standard material, delaying the project and deficiency in carrying out the civil and other works and delay in completion of Block Nos.4 and 5. The complainant was asked to withdraw the notice dated 01.04.2014. It is noted that vide receipt dated 30.07.2014, which is after the issuance of aforesaid letter dated 07.04.2014, the Opposite Parties adjusted an amount of Rs.18,00,000/- in the account of the complainant, for the work done by her husband in the project of the Opposite Parties, vide receipt dated 30.07.2014 (Annexure C-6). The Opposite Parties, therefore, in all, received an amount of Rs.22,50,000/- from the complainant. Perusal of aforesaid receipt (Annexure C-6) indicates that the Opposite Parties received a sum of Rs.18 Lacs from Ms. Rupy Minhas (complainant) against 2BHK Flat No.96, Second Floor, Block No.4 in the said project, as full and final against adjustment of bill of Unique Enterprises. It is also admitted by Opposite Parties No.1 & 2, in their written statement in Para 13, on merits, that Opposite Parties No.1 & 2 had agreed to adjust the amount of Rs.18 Lacs towards cost of Flat No.134/1. It, therefore, means that the Opposite Parties had no grievance against the husband of the complainant and once they adjusted Rs.18 Lacs, the pleas raised by them in the notice dated 07.04.2014 became redundant. Not only this, on 30.07.2014, the Opposite Parties issued allotment letter (Annexure C-7) and executed agreement to sell (Annexure C-8), wherein they clearly mentioned that they had received the amounts in the manner as tabulated in preceding paragraph. It was also indicated that the possession would be delivered by 30.09.2015. Further vide letter dated 23.03.2015 (Annexure C-9), the Opposite Parties asked the complainant to make payment of Rs.69,525/- before 31.03.2015. The said letter dated 23.03.2015 reads thus:-
"You have booked a flat in name of Rupy Minhas Flat no.96/IInd Block No.4 in 'Shivjot Township', Kharar from us. According to service tax Notification No.36/2010-ST dated 28/6/2010. Service Tax has to be collected on every payment received @3.09%. Therefore you have made the payment amounting to Rs.22.50 Lacs, so kindly make the payment of service tax amounting to Rs.69,525/- before 31st March 2015. Thereafter the rates are going to be enhanced from 1st April 15. Kindly make the payment of service tax before 31st March 15."
Thus even on the date of issuing letter dated 23.03.2015, there was no dispute regarding receipt of Rs.22,50,000/- from the complainant. It is clearly admitted in letter dated 23.03.2015 that the complainant has made payment in the sum of Rs.22,50,000/-. Apparently, the complainant seems to have withdrawn Consumer Complaint bearing No.299 of 2014 when the Opposite Parties had adjusted Rs.18 Lacs and also issued allotment letter and also executed agreement to sell. [In connected complaint No.259 of 2017, the complainant had filed complaint bearing No.390 of 2014 before District Forum-I, U.T., Chandigarh, which was dismissed as withdrawn vide order dated 28.07.2014 with liberty to file a-fresh complaint, if need be.] The possession due on 30.09.2015 was not offered/delivered. The complainant has, thus, continuing cause of action.
21. It is the case of the Opposite Parties that construction work of Block 4, where the complainant was allotted Flat No.96 in lieu of Flat No.134/1 earlier allotted in Block No.6, did not complete due to inter se dispute between the husband of the complainant and the Opposite Parties. The allotment of the flat, in question, as admitted by Opposite Parties No.1 & 2 in their written statement in Para 16 was cancelled on the ground that no payment was ever made by the complainant. There has been change in the stand of the Opposite Parties as is evident, firstly from letter dated 07.04.2014 and thereafter, by way of their action, when they again adjusted a sum of Rs.18 Lacs vide receipt dated 30.07.2014 (Annexure C-6), from the amount payable to the husband of the complainant. When the amount was so adjusted, as already stated above, it meant that the amount was payable to the husband of the complainant. In such a situation, legal notice dated 14.05.2014 (Annexure OP-1-2/L) sent to the husband of the complainant attributing lapses/excess payments is also of no significance. The contention of Opposite Parties No.1 & 2 that as per last bill dated 21.06.2013, excess amount of Rs.5,47,241/- was paid to the husband of the complainant is devoid of force. The question is why Opposite Parties No.1 & 2 are relying upon an old bill. If the amount as above was paid excess to the husband of the complainant, why Opposite Parties No.1 & 2 adjusted much higher amount to the tune of Rs.18 Lacs in the account of the complainant in July, 2014. It means after 21.06.2013, more amount was payable to the husband of the complainant by Opposite Parties No.1 & 2. The fact is that despite acknowledging payment of Rs.22,50,000/-, Opposite Parties No.1 & 2 did not offer possession to the complainant and rather she faced cancellation of the same. It is also borne out from the record that before allotment of Flat No.96, the complainant had earlier sought refund of the amount paid, on 01.04.2014 (Annexure C-4), actually signed by her on 02.04.2014 as is seen from the said letter, on the ground that the project had been delayed abnormally and she was no longer interested to keep the flat.
22. Had the Opposite Parties acted on the request of the complainant dated 01/02.04.2014 and refunded the amount within a reasonable period of a month or so, after receipt of request of the complainant in April 2014, the position would have been different. The complainant in lieu of earlier flat was allotted flat No.96 by the Opposite Parties and possession was to be delivered within 15 months as stated in the Payment Plan/Agreement to Sell. The construction of the Block, wherein the aforesaid flat was allotted, is still not complete, as admitted by the Opposite Parties. Rather, the Opposite Parties arbitrarily cancelled its allotment on totally different concern i.e. inter se dispute between the husband of the complainant and the Opposite Parties, which has no bearing on the rights of the complainant. The Opposite Parties were, thus, clearly deficient in not giving possession of the allotted flat within the period stipulated in the Agreement to Sell. The amount of Rs.22,50,000/- has not been refunded so far. When the Opposite Parties failed to offer possession within the period stipulated in the Agreement i.e. by 30.09.2015, Opposite Parties ought to have refunded the amount of the complainant along with reasonable rate of interest, which they did not do. The Opposite Parties have no right to usurp the hard earned money of the complainant.
It may be stated here that this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon'ble National Commission, held as under:-
"Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-
"I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery".
The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.
It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date.
In the present case also, as stated above, the Opposite Parties committed breach of their obligation, in not offering possession of the flat, in question, by 30.09.2015. By not offering possession of the unit, in question, complete in all respects, within the stipulated period or by not refunding the deposited amount, the Opposite Parties were deficient in rendering service. The complainant is, thus, held entitled to refund of the deposited amount.
23. It is to be further seen, as to whether, interest, on the amount to be refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.22,50,000/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon'ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). The complainant is, therefore, held entitled to interest @12% (simple) on the deposited amount from the respective dates of deposits/adjustments.
24. The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment, and injury caused to her. The complainant deposited hard earned money, in the hope that she would get a unit to live in. On account of non-delivery of possession of the unit, in question, within the stipulated period, the Opposite Parties were deficient in rendering service and the complainant has suffered physical harassment and mental agony on account of the acts of omission and commission of the Opposite Parties, for which, she needs to be suitably compensated. The complainant has claimed Rs.1,00,000/- as damages on account of unfair trade practice, breach of trust and loss suffered on account of payment of rent paid; Rs.2,00,000/- as damages and compensation on account of mental agony/torture and physical harassment, deficiency in services and making false assurances, which is somewhat on the higher side. Compensation in the sum of Rs.1,50,000/-, if granted, would be just and adequate, to serve the ends of justice.
25. At the time of arguments, Counsel for Opposite Parties No.1 & 2 submitted that amalgamation of flats was not permissible and purchase of two flats, in question, by the complainant was for commercial purpose, and, as such, she was not a consumer. It is on record that initially two adjoining flats were allotted to the complainant and even if amalgamation was not allowed, the complainant could use the same for residential purpose. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by Opposite Parties No.1 & 2, mere bald assertion to that effect, cannot be taken into consideration. It may be stated here that in Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Commission that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja's case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as " Aashish Oberai Vs. Emaar MGF Land Limited", Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-
"In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015."
Therefore, in view of law settled by the National Commission in the aforesaid cases, the complainant falls within the definition of 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Parties No.1 & 2, therefore, being devoid of merit, is rejected.
26. Similarly, in connected consumer complaint bearing No.259 of 2017, the complainant paid an amount of Rs.22,50,000/- in respect of Flat No.135/1 allotted to her in Block 6, Shiv Jot Apartments. Despite payment of above amount, allotment was cancelled and possession was not offered. Therefore, for the reasons assigned in Complaint No.258 of 2017, the complainant is entitled to same relief as given in consumer complaint No.258 of 2017.
27. No other point, was urged, by Counsel for the parties.
28. For the reasons recorded above, both the complaints bearing No.258 and 259 of 2017 are partly accepted, with costs. The Opposite Parties, in each of these cases, are jointly and severally, held liable and directed as under:-
(i) To refund the amount of Rs.22,50,000/-, in each case, to the complainant, alongwith interest @12% p.a. simple from the respective dates of deposits/ adjustments, within a period of 45 days, from the date of receipt of a certified copy of this order.
(ii) To pay an amount of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only), in each case, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.33,000/-, in each case, as cost of litigation, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order.
(iii) In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% p.a. simple, from the date of filing the complaint till realization and amount mentioned in Clause (ii) above, with interest @12% p.a. (simple) from the date of filing the complaint till realization.
29. However, it is made clear, that in case, the complainant has availed loan facility from any banking/financial institution(s), it shall have the first charge on the amount payable, to the extent, the same is due to be paid by her(complainant).
30. Certified copies of this order be sent to the parties, free of charge.
31. The file be consigned to Record Room, after completion.
Pronounced.
30.08.2017 (DEV RAJ) MEMBER (PADMA PANDEY) MEMBER Ad