State Consumer Disputes Redressal Commission
Shalimar Estates(Pvt.) Ltd vs Vikas Sethi on 1 October, 2012
STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First
Appeal No.
:
224 of 2012
Date of Institution
:
29.06.2012
Date of Decision
:
01.10.2012
Shalimar
Estates(Pvt.) Ltd. Corporate Office: SCO 110-111, Sector 8-C, Chandigarh.
The Managing
Director, Shalimar Estates (Pvt.) Ltd., Corporate Office: SCO 110-111,
Sector 8-C, Chandigarh.
Appellants/Opposite
Parties
V
e r s u s
1.
Vikas Sethi, son of
Sh. Darshan Lal Sethi, R/o H.No.265, Sector 9, Panchkula.
2.
Sh.Subhash Chander, son of Sh. Chet Ram, R/o H.No. 265,
Sector 9, Panchkula.
....Respondents/complainants
Appeal under Section 15 of the
Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Arun Kumar, Advocate for the appellants.
Sh. Sandeep Punchhi, Advocate for the respondents PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 22.05.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainants (now respondents) and directed the Opposite Parties (now appellants), as under:-
In view of the foregoing discussion, the present complaint is allowed and the OPs are, jointly and severally, directed as under:-
(i) to refund Rs.12,05,000/- to the complainants with interest @9% p.a. from the respective dates of deposit till the date of this order;
(ii) to pay a sum of Rs.10,000/- as costs of litigation.
This order be complied with by OPs jointly and severally within 45 days from the date of receipt of its certified copy, failing which OPs shall be liable to pay the aforesaid amount of Rs.12,05,000/- along with penal interest @18% per annum from the respective dates of deposit till the date of actual payment besides payment of Rs.10,000/- as costs of litigation.
2. The facts, in brief, are that the complainants booked a commercial showroom, having super area of 400 Sq. Feet, in an upcoming shopping mall, to be constructed by the Opposite Parties, in Shalimar Plaza, I.T., City, Mohali. They were allotted a showroom of Category-C, by the Opposite Parties, vide allotment letter dated 28.2.2006. It was stated, by the complainants, that they intended to use the said showroom, for running their business, to earn their livelihood, by way of self employment. They deposited a sum of Rs.3,60,000/-, alongwith the application, which was duly acknowledged by the Opposite Parties, vide acknowledgment slip dated 18.2.2006 (infact 17.02.2006).
In all, the complainants deposited a total sum of Rs.12,05,000/-, with the Opposite Parties, on various dates, vide receipts Annexure P-5 (collectively). It was further stated that the physical possession of the said showroom, was promised to be delivered by the Opposite Parties, within a period of two years, from the date of allotment i.e. 28.2.2006. It was further stated that the complainants, personally visited the office of the Opposite Parties, and sought clarification about the schedule of completion of showroom, in question. It was further stated that, no progress regarding the construction of showroom had been made, by the stipulated date i.e. 28.2.2008. In these circumstances, the complainants apprehended, that the commitment made by the Opposite Parties, regarding handing over the physical possession of the showroom, by due date, lacked bonafides. It was further stated that, in the meanwhile, they also came to know about the new advertisement, issued by the Opposite Parties, about the showrooms of the same shopping mall, according to which, the scheme commenced on 28.11.2006, and closed on 12.12.2006. It was further stated that, vide this advertisement, a new time frame was fixed for handing over the physical possession of the showroom, by December, 2008, instead of February 2008.
3. On 16.12.2008, the complainants sent a letter to the Opposite Parties, to clarify the position, and their commitment, to handover the physical possession, as by that time, they had already deposited a sum of Rs.12,05,000/-. It was further stated that, to the utter surprise of the complainants, another advertisement by the Opposite Parties, regarding the showrooms of the same shopping mall, appeared in a newspaper, in October, 2007. In this advertisement, it was mentioned by the Opposite Parties, that physical possession of the showrooms, would be handed over, within the time period of two years i.e. by October, 2009. Accordingly, the complainants were left with no alternative, but to seek refund of the amount, deposited by them, alongwith interest and compensation. The complainants also sent a notice dated 06.04.2011, to the Opposite Parties, for refund of the amount, but to no avail. It was further stated that neither the possession had been delivered to the complainants, nor the amount had been refunded. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, 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, directing the Opposite Parties, to refund the amount of Rs.12,05,000/- alongwith interest @18% per annum, from the promised date of possession i.e. 28.02.2008 till actual payment; or in the alternative, pay compensation @18% P.A., on the amount of Rs.12,05,000/-, from the promised date of possession i.e. 28.02.2008, till the date of handing over the physical possession of the showroom, in question; pay compensation for mental agony and physical harassment, to the tune of Rs.2 lacs; and pay cost of litigation.
4. The Opposite Parties, in their written version, pleaded that the complaint was not maintainable. It was further pleaded that since the showroom, being a commercial property, was booked by the complainants, for running commercial activities, they did not fall within the definition of consumers, and, as such the Consumer complaint was not maintainable. It was denied that the complainants intended to purchase the showroom, for running their business, to earn their livelihood, by way of self employment. It was stated that as per Clause 49 of the terms and conditions of the application form, all the disputes and differences arising, between the parties, were referable to the Arbitration, and, as such, the District Forum, had no Jurisdiction, to entertain and decide the complaint. It was admitted that the showroom was allotted to the complainants. It was also admitted that the amount, as depicted in the complaint, was paid by the complainants. It was also admitted that the physical possession of the showroom was to be delivered, within a period of two years i.e. by 28.02.2008. It was further stated that the delay, in raising construction was on account of the circumstances, beyond the control of the Opposite Parties. It was also admitted that the Opposite Parties, got published another advertisement, in the newspapers, with regard to the unregistered showrooms, which had not already been allotted to various persons. It was further stated that there was no effect, on the previous scheme, under which the complainants applied for the commercial showroom. It was further stated that the complainants, did not make payment of second, third, fourth and fifth installments, of the price of showroom, and, as such, they breached the terms and conditions of Clauses 46 and 12 of the application form. It was further stated that, thus, the complainants were not entitled to the reliefs, claimed by them. It was further stated that according to Clause 46, aforesaid, the amount already deposited by the complainants, was liable to be forfeited, as they failed to adhere to the payment plan, by not depositing the second, third, fourth and fifth installments, of the price of showroom. It was further stated that on account on non-payment of installments of price, referred to above, the allotment was liable to be cancelled. It was further stated that construction of the entire ten storey building, including two basements, had already been completed. It was further stated that the outer and inner walls, partitions, plasters base floorings etc., had also been completed, and only finishing works and fittings of electrical & air conditioning works were in progress. It was further stated that the construction and development work of the shopping mall, at the site, was in full swing. It was further stated that even then, as a goodwill gesture, to fulfill their part of the obligation, the Opposite Parties were always ready to pay damages @Rs.10/- per sq. feet, per month, in terms of Clause No.12, of the terms and conditions of the application form. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The Parties led evidence, in support of their case.
6. 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.
7. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
8. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
9. The question, that falls for consideration, is, as to whether, the complainants, fell within the definition of consumers or not. Undisputedly, the complainants had booked a commercial unit i.e. showroom, having super area of 400 Sq. Feet, in an upcoming shopping mall, to be constructed by the Opposite Parties, in Shalimar Plaza, I.T., City, Mohali, the total price whereof was Rs.27,30,000/-. It is also, not disputed, that the application of the complainants, was accepted for registration for allotment of a commercial showroom. No doubt, in the complaint in paragraph number 1, it was stated by the complainants, that they intended to purchase the showroom, for running their business, to earn their livelihood, by way of self employment. These allegations were vehemently denied by the Opposite Parties. However, it may be stated here, that, in support of the averments, contained in the complaint, only a short affidavit was filed by Vikas Sethi, one of the complainants, to the effect that the contents of the complaint be read as an integral part of the same (affidavit). No detailed affidavit, in support of the averments, contained in the complaint, despite granting a number of opportunities, to the complainants, by the District Forum, vide orders dated 25.01.2012, 20.03.2012, 30.03.2012, 23.04.2012 and 17.05.2012, was filed by them, by way of evidence. The question arises, as to whether, such a short affidavit can be treated as legally admissible evidence, or not. In S. Kumar Vs. New India Assurance Company Limited & Anr., III (2005) CPJ 642, decided by this Commission and relied upon by the Counsel for the appellants, only a short affidavit, in support of the averments, contained in the complaint was filed. This Commission held that such a short affidavit, could not be treated as legally admissible evidence. Since, a short affidavit, cannot be treated as legally admissible evidence, it means that the averments/allegations, contained in the complaint, simply remained unsubstantiated. It is, no doubt, true that the Consumer Foras are not fettered by technicalities. However, the Consumer Foras cannot shut their eyes, and rely upon the legally inadmissible documents/evidence, and grant relief(s) to the parties. No other legally acceptable evidence, was produced, by the complainants, to support the averments, contained in the complaint, that they intended to purchase the showroom, for running their business, to earn their livelihood, by way of self employment. The allegations, contained in the complaint, cannot be treated as evidence. If the pleadings, in the complaint, are to be treated as a piece of evidence, then there is no requirement of leading evidence, in support of the same. The complainants were required to lead evidence, by way of detailed affidavit(s), to prove the allegations contained in the complaint, but they failed to do so. Under these circumstances, the averments, contained in the complaint, in this regard, without being substantiated, through legally admissible evidence, could not be taken into consideration, especially, when the same were specifically denied by the Opposite Parties, in their written version. On the other hand, they (Opposite Parties), set up the case, that commercial unit, in the shape of showroom, was booked by the complainants, for running commercial activities, and, thus, they did not fall within the definition of consumers. Even, it is evident, from the terms and conditions of Annexure P-1, that the application was for the allotment of a commercial showroom in Shalimar Plaza, I.T., City, Mohali. It was, thus, not proved that the said showroom was booked by the complainants, for running their business, to earn their livelihood, by way of self employment. In Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. IV (2010) CPJ 299 (NC), the complainant, a Private Limited Company, booked a showroom, with the Opposite Parties. When the possession was not given, they filed a complaint, alleging deficiency, in rendering service. It was held that the purchase of space was for commercial purpose and the complainant was not a consumer. In M/s SKG Engineering Pvt. Ltd. Vs. Emaar MGF Land Pvt. Ltd, III (2010) CPJ 260 (NC), the complainant, booked office space, and paid consideration, but the Opposite Parties, cancelled the booking and forfeited the amount. It was held that the space was booked for office purpose and not for earning livelihood, by means of self employment, and, therefore, the complaint was not maintainable. In Rajasthan State Industrial Development and Investment Corporation Ltd. (RIICO) Vs. Diksha Enterprises, III (2010) CPJ 333 (NC), a plot was allotted to the complainant, for setting up a factory, but the same was cancelled subsequently. It was held that the allotment was for a commercial purpose, and, therefore, the complainant was not a consumer, under the Act. In the present case also, a commercial unit i.e. a showroom was allotted to the complainants, as stated above. It was not proved by the complainants, through legally admissible evidence, that they intended to purchase the showroom, for running their business, to earn their livelihood, by way of self employment. Under these circumstances, the complainants were excluded from the definition of consumers, under the Act, and, as such, the Consumer Complaint was not maintainable.
10. No other point, was urged, by the Counsel for the parties.
11. For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside and the complaint stands dismissed.
12. The complainants shall, however, be at liberty, to approach the Civil Court of competent Jurisdiction, if they so desire.
13. Certified copies of this order, be sent to the parties, free of charge.
14. The file be consigned to Record Room, after completion Pronounced.
October 1, 2012 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg