State Consumer Disputes Redressal Commission
1. M/S Chandigarh Overseas Private ... vs Manish Jakhar on 2 April, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U
STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal Case No.
:
366 of 2011
Date of Institution
:
28.12.2011
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
1.
Manish
Jakhar S/o Mr.Birbal Jakhar R/o H.No.121, Sector-10-A, Chandigarh.
2.
Darshan
Singh S/o S.Shamsher Singh, R/o HIG-2, Sectgor-48-C, Chandigarh.
....Respondents.
Appeal U/s 15 of
Consumer Protection Act, 1986
BEFORE: MR.
JUSTICE SHAM SUNDER, PRESIDENT.
MRS. NEENA SANDHU,
MEMBER.
Present: Sh.Kamaljit Singh Lang,Advocate for the appellants Sh. Subhash Sharma, Advocate for the respondents PER MR. JUSTICE SHAM SUNDER, PRESIDENT This appeal is directed against the order dated 25.11.2011, 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.7.5 lacs to the complainant along with 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. 04.07.2011 till its realization besides costs of litigation.
2. The facts, in brief, are that the complainants(now respondents) purchased a unit measuring 100 sq. feet on 5th floor, Block A-1, for Rs.5 lacs in the Industrial Knowledge (Fashion Technology) Park, which was to be set up by the Opposite Parties on the land measuring 13.74375 acres, situated in Sector 90, SAS Nagar (Mohali). A Developer Buyer Agreement dated 29.12.2006 was executed between the complainants and Opposite Party No.1(now Appellant No.1) in this regard. The complainants paid Rs.4.50 lacs vide receipt No.1170 dated 23.12.06 and Rs.25000/- vide receipt No.1173 dated 26.12.06, against the total sale consideration of Rs.5 lacs as rebate of Rs.25000/- was given to him, on account of lump-sum payment. The project was to be completed within 30 months, from the date of start of construction. It was stated that a Lease Agreement was executed between the complainants and Opposite Party No.2(now appellant No.2, being the subsidiary of Opposite Party No.1). As per clause 4.1 of the Lease Agreement, the complainants were entitled to the assured lease/rental income of Rs.30000/- p.a. subject to maximum of Rs.45000/- p.a. per unit. The lease money was to be paid, on monthly basis, by way of account payee cheque. It was further stated that the Opposite Parties failed to start the construction. Ultimately, vide letter dated 29.12.06, Opposite Party No.2, offered to buy back the said unit, for an amount of Rs.7.50 lacs, from the complainants. The said offer was applicable after 30 months, from the date of start of construction. The complainants exercised the buy-back option on 06.04.2011 i.e. after 30 months, from the date of start of construction. The Opposite Parties did not pay the agreed amount, under the buy-back option. It was further stated that the complainants suffered a lot of mental agony and physical harassment, as they were neither paid the amount of buy back option referred to above, nor the construction of the unit was completed within the stipulated period nor the possession of the unit complete in all respects was handed over to them. 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 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 by them.
3. The Opposite Parties, in their joint written version, stated that according to Clause-22 of Developer Buyer Agreement dated 29.12.2006, in case of any dispute, the matter was to be referred to the Arbitrator, and, as such, the consumer complaint was not maintainable. It was further stated that the unit in question was purchased for running commercial activity for earning profits, and, as such, the complainant did not fall within the purview of Consumers. It was further stated that Opposite Party No.2, had no role to deliver possession of the Unit to the complainants. It was admitted that the total sale consideration of the unit was Rs.5 lacs. It was denied that it was agreed to between the parties that in case the complainants paid a sum of Rs.4,75,000/-, in lump-sum, they would be given discount of Rs.25,000/-. However, it was admitted that an amount of Rs.4,75,000/- against the total sale consideration of the unit, was paid by the complainants, to the Opposite Parties. The execution of the Developer Buyer Agreement between the parties on 29.12.2006, was also admitted.
It was, however, stated that the delay in construction was due to global recession during the year 2008-09. It was further stated that had there been no global recession, the construction would have been completed within the stipulated period. It was further stated that, no doubt, a letter dated 29.12.06,was written by the Opposite Parties to the complainants, to buy-back the unit, allotted in favour of the complainants, but the acceptance of the offer was required to be made, in writing, within 30 months, from the date of start of construction. It was further stated that the Opposite Parties never received acceptance, from the complainants within the stipulated time. 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 complainants for running commercial activity, with a view to earn profits, and not for earning their livelihood, by way of self employment, as they being property dealers, were engaged in the sale and purchase of real estate, and, as such, they were not consumers and, therefore, the consumer complaint was not maintainable. He further submitted that one of the complainants namely Manish Jakhar purchased two units- one in his individual name, and the second in the joint name of himself and Darshan Singh, respondent No.2. It is evident from para No.3 of the complaint, 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. In para No.4 of the complaint, it was in clear-cut terms, stated by the complainants, that they were to run their business, for earning their livelihood, under the Small Investors Scheme, in the unit of 100 sq.feet, which was purchased by them, in the project. In the affidavit, which was filed by the complainants, in support of the averments contained in the complaint, they also stated that they were to run the business for earning their livelihood, in the unit aforesaid. Therefore, by no stretch of imagination, it could be said, that the complainants had purchased the unit for running commercial venture, on a large scale, with a view to earn huge profits. Under these circumstances, it could not be concluded that the complainants did not fall under the definition of consumers , and, as such, their 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. Coming to the submission of the Counsel for the appellants, that the complainants, being property dealers, as is evident from a photocopy of their visiting card R1, it could not be said that the unit was purchased by them, for the purpose of earning their livelihood, by way of self employment, it may be stated here, that this argument is also devoid of merit. R-1 is a photocopy of the visiting card, which cannot be said to be cogent to prove that the complainants were property dealers and dealing in the sale and purchase of property, with a view to gain profits. No supporting evidence was produced by the Opposite Parties, to prove that the complainants, were actually property dealers and dealing in the sale and purchase of property on a large scale. Such a visiting card could be procured by anybody, to defeat the claim of the complainants. Had some tangible independent supporting evidence, been produced, by the Opposite Parties, that the complainants were property dealers and were actually dealing in the sale and purchase of property, on a large scale, the matter would have been different. The District Forum was right in holding, that R1, copy of the visiting card, did not prove the complainants, to be the property dealers. The submission of the Counsel for the appellants, in this regard, being devoid of merit, must fail, and the same stands rejected.
10. 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 complainants, for the purpose of running a commercial venture, on a large scale, they did not fall within the definition of consumers, 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/-. One of complainants, in that case, was a practising Advocate and the other was 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 shops 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 run for earning his livelihood by way of self employment. Under these circumstances, it was held, in this case, that since the atta chakki was being run 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 huge 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, from the principle of law, laid down therein. The submission of the Counsel for the appellants, being , thus, devoid of merit, must fail, and the same stands rejected.
11. Admittedly the letter dated 29.12.2006, was written by the appellants to the complainants, vide which they made an offer to buy back the unit purchased by them for Rs.7.50 lacs. Vide letter dated 6.4.2011, copy whereof is at page 54 of the District Forum file, this offer of the Opposite Parties was accepted by the complainants. No doubt, the acceptance of the offer was not made within 30 months, from the date of start of construction. However, it may be stated here, that the time was not the essence of the offer. Once this offer was accepted vide letter dated 6.4.2011 by the complainants and communicated to the Opposite Parties, and the latter acknowledged the same, without raising any objection, now they cannot turn round to say, that the acceptance was not made within the stipulated time. They accepted this letter written by the complainants to them acknowledging the offer made by them. Once the offer was made by Opposite Party no.2, to buy-back the unit, from the complainants, for Rs.7.50 lacs, and that was accepted by the complainants, 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.
12. The next question, that arises for consideration, is, as to whether, the complainants were entitled to compensation for mental agony and physical harassment or not. It may be stated here, that way back on 29.12.2006, the unit was allotted to the complainants. They deposited Rs.4,75,000/- against the sale consideration of Rs.5.00 lacs. They were not handed over the possession of the unit within 30 months from the date of start of construction. Even no construction was started, as admitted by the Opposite Parties, on account of global recession. The complainants, throughout, were hopeful to get possession of the unit, so as to run business therein, by self employment, for earning their livelihood, but their hopes were dashed to the ground. The amount deposited by the complainants was illegally and improperly withheld by the Opposite Parties, for a long period. The complainants, 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 complainants which can be said to be fair, reasonable and adequate. The findings of the District Forum, in this regard, being correct, are affirmed.
13. 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.
14. No other point, was urged, by the Counsel for the parties.
15. 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.
16. 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.
17. Certified Copies of this order be sent to the parties, free of charge.
18. The file be consigned to the Record Room, after completion Pronounced.
2.4.2012 Sd/-
[JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] *Js MEMBER