State Consumer Disputes Redressal Commission
Rajeev Sagar Mehta vs C And C Towers Ltd. on 21 February, 2019
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
1) Consumer Complaint No.942 of 2017
Date of Institution: 31.10.2017
Order reserved on: 15.02.2019
Date of Decision : 21.02.2019
Rajeev Sagar Mehta S/o Sh. Shanti Sawroop Mehta R/o House
No.206-C, Type IV, West Colony, R.C.F., Husainpur, District
Kapurthala-144602(Pb.)
.....Complainant
Versus
1. C & C Towers Limited, Site Office :- C & C Towers, ISBT cum
Commercial Complex, opposite Verka Milk Plant, Gate No.5
Phase-6, (Sector 57) Mohali, through its Chairman/ Director/
Managing Director/ Manager/ Authorized Representative.
2. C & C Towers Limited, Corporate Office, Plot No.70, Sector 32,
Gurgaon, Haryana through its Chairman/ Director/ Managing
Director/ Manager/ Authorized Representative.
3. G.S. Johar, Chairman, C & C Towers Limited, Corporate
Office, Plot No.70, Sector 32, Gurgaon, Haryana.
.....Opposite Parties
Complaint U/s 17(1)(a) of the Consumer
Protection Act, 1986 (as amended up to
date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Sh. Rajinder Kumar Goyal, Member.
Present:-
For the complainants : Sh. Sandeep Bhardwaj, Advocate For the opposite parties : Sh. Rohit Mittal, Advocate ..................................................................................
AND
2) Consumer Complaint No.1038 of 2017 Date of Institution: 29.11.2017 Order reserved on: 15.02.2019 Date of Decision : 21.02.2019 Dhananjay Singh S/o Late Sh. Shivdhari Singh R/o House No.1900, Nirwana Co-operative Society, Sector 49-B, Chandigarh.
.....Complainant Versus Consumer Complaint No.942 of 2017 2
1. C & C Towers Limited, Site Office :- C & C Towers, ISBT cum Commercial Complex, opposite Verka Milk Plant, Gate No.5 Phase-6, (Sector 57) Mohali, through its Chairman/ Director/ Managing Director/ Manager/ Authorized Representative.
2. C & C Towers Limited, Corporate Office, Plot No.70, Sector 32, Gurgaon, Haryana through its Chairman/ Director/ Managing Director/ Manager/ Authorized Representative.
3. G.S. Johar, Chairman, C & C Towers Limited, Corporate Office, Plot No.70, Sector 32, Gurgaon, Haryana.
.....Opposite Parties Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member. Sh. Rajinder Kumar Goyal, Member.
Present:-
For the complainant : Sh. Sandeep Bhardwaj, Advocate For the opposite parties : Sh. Rohit Mittal, Advocate .................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
By this common judgment, we intend to dispose of above referred two complaints together, as they have arisen out of common controversy. The order shall be pronounced by us in main complaint no.942 of 2017 titled as "Rajeev Sagar Mehta Vs. C & C Towers Limited & others".
Brief facts of Complaint No.942 of 2017:
2. Rajeev Sagar Mehta complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments that latter made a number of assurances through news papers, marketing, emails and telemarketing with regard to launch of their integrated project under the name and styles of C & C Towers and the tower C & C Capitals with salient features in the brochure. The complainant Consumer Complaint No.942 of 2017 3 is a government employee and to secure his future after retirement and to secure the future of his wards, who are unemployed, he agreed to purchase a unit from OPs by submitting an application form with OP nos.1 and 2 for earning his livelihood by means of his self-employment. He paid Rs.6,66,400/- to OPs with application form, as booking amount. The OPs received the consideration amount from him without holding the requisite permissions for the development of the project in sheer violation of PAPRA Act, 1995.
The OPs acknowledged receipt of payment of 35% of price of the unit, vide Annexure-C3 dated 21.03.2012. The OPs also received an amount of Rs.59,500/- towards facilitation charges and further an amount of Rs.65,137/- as first installment, vide cheques Annexure C-4 and 5 dated 02.06.2012 and 07.10.2012. The OPs agreed to complete the construction in the project within 60 months from the date of compliance i.e. 16.12.2009 as per condition no.1.3.3 and to handover the possession after completing the commercial complex and after obtaining the requisite approvals. The date of compliance was 22.10.2012 and the possession become due on 21.10.2015, but OPs failed to disclose the reason for not completing the construction in time. The OPs started received the installments as per payment plan D, vide Annexure C-7 to Annexure C-14. The OPs sold the unit at price @Rs.8000/- per square feet and the total area was 238 square feet. The total basic sale price was Rs.19,04,000/-. The OPs levied an amount of Rs.250/- per square feet towards the facilitation charges, as such the total cost of the unit was Rs.19,63,500/-. The Consumer Complaint No.942 of 2017 4 OPs received the total amount of Rs.14,43,470/- towards the cost of above unit from complainant. It is further averred that OP nos.1 and 2 did not start the construction in the project. Even GMADA issued notice to OPs for cancellation of agreement for non-compliance of construction and it was also published in the papers dated 31.03.2013, 20.04.2015 and 24.06.2015 vide Annexure C-16 and C-18. The complainant served legal notice dated 10.08.2015 upon OPs, but to no effect. The OPs issued a letter dated 07.05.2015 to one of the allottees informing that bankers, GMADA and other stake holders were committed to extend their financial support and they would restart the construction by July 2015 and would complete it by mid-2017. One of the allottees also obtained information from GMADA under Right to Information Act, to the effect that no license has been granted to OPs and no agreement was entered by the OPs with the Government to develop the above project, vide Annexure C-22. The complainant wrote a letter dated 09.07.2017 for refund of the amount, but the OPs remained silent about the status of the project as well as refund of the deposited amounts by him. He has alleged deficiency in service and unfair trade practice on the part of OPs for not completing the project and not obtaining the approvals from competent authorities for the development of the project. The complainant has prayed for below noted reliefs against OPs:
(i) To refund the entire deposited amount of Rs.14,43,470/-
with interest @18% per annum from the dates of deposits till realization.
Consumer Complaint No.942 of 2017 5
(ii) to pay compensation of Rs.2 Lakh for mental harassment and unfair trade practice.
(iii) to pay Rs.One Lakh as litigation expenses.
3. Upon notice, OPs appeared and filed written reply by raising preliminary objections that disputed property is a commercial space, which was allotted to complainant and he is not consumer of OPs, as he purchased it for commercial purposes to earn profits only. The complainant opted for construction linked payment plan with OPs and he has been clearing the installments in irregular manner , which were linked to various stages of construction. The OPs received only 35% of payment as admitted by complainant also. In case, the complainant wishes to surrender the commercial space to OPs, he shall be governed by clause 1.2.2 and 1.3.3 of allotment letter and the deposited amounts shall automatically stand forfeited, as per the contract of allotment. The complainant admitted in his application form that he is in service at the time of allotment and failed to establish as to why he booked commercial space. It is denied that complainant purchased this unit for self employment for the purpose of exclusively earning his livelihood. The OPs controverted the averments of complainant even on merits in the written reply on the above referred grounds and prayed for dismissal of the complaint.
4. The complainant tendered in evidence copies of documents Ex.C-1 to Ex.C-27 alongwith his affidavit Ex.C-A and closed the evidence. As against it, OPs failed to tender in evidence Consumer Complaint No.942 of 2017 6 and further failed to deposit the cost of Rs.20,000/- and principal amount as per order of the National Commission passed in F.A. No.1241 of 2018. The conditional order of the National Commission shall not operate on account of non-compliance thereof by OPs. Facts of Complaint No.1038 of 2017
5. The complainant Dhananjay Singh has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments that the latter made a number of assurances through news papers, marketing, emails and telemarketing with regard to launch of their integrated project under the name and styles of C & C towers and C & C Capitals with salient features in the brochure. It is further averred that he was looking for an office space for his self employment, so that he can earn his livelihood by means of self employment. OP nos.1 and 2 made number assurances about the project and assured holdings of permissions and approvals with handing over the possession of the allotted space to allottee in time. The complainant is not property dealer and does not deal with sale and purchase of property business either. He moved an application form dated 08.07.2010 with OP nos.1 and 2 alongwith booking amount of Rs.5,50,000/- for allotment of commercial space to him. The OPs received total amount of Rs.9,60,750/- from him till 15.09.2010. The OPs issued an allotment letter dated 18.09.2010 agreeing to complete the construction within a period of 30 months from the date of start of lease period as per condition no.1.3.5 and to Consumer Complaint No.942 of 2017 7 handover the possession after completing the commercial complex and after obtaining the requisite approvals. The date of start of lease period was 15.12.2009 and as such the construction was to be completed on or before 14.06.2012 and the possession for delivery become due on 14.06.2012, but OPs failed to disclose the reason for not completing the construction in time. The OPs allotted unit no.20 in Tower C at 7th floor to complainant of total area 549 square feet. The total price of the unit was Rs.31,59,700/- including cover car parking, IFMS, power back up charges, external electrification charges and fire fighting equipment charges and one time lease administration fees and OPs received 35% of the total amount i.e. Rs.9,60,750/- from him without receiving prior permissions and approvals for development of the project and thereby violated the provisions of PAPRA Act, 1995. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs and prayed for below noted reliefs against OPs:
(i) To refund the entire deposited amount of Rs.9,60,750/- with interest @18% per annum from the date of deposits till realization.
(ii) to pay compensation of Rs.Two Lakh for mental harassment and unfair trade practice and so on.
(iii) to pay Rs.One Lakh as litigation expenses
6. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant. It is averred that award of interest @18%, compensation etc. are beyond the scope of Consumer Complaint No.942 of 2017 8 speciic terms and conditions of the allotment. The complicated questions of facts and law are involved in this case, which cannot be adjudicated by Consumer Forum in summary manner without recording elaborate evidence. As per allotment entered into by complainant, he has option of the surrender of the commercial space subject to terms and conditions qua forfeiture. As per clause 1.2.2 and 1.3.3 of allotment letter the deposited amounts shall automatically stand forfeited as per the contract of allotment in case of surrender of the space by complainant. The complainant has not intentionally disclosed the list of properties owned and occupied by him just to mislead the Commission showing him as consumer. The complainant has purchased it for investment purposes, which is not liable to be adjudicated under the Consumer Protection Act, being commercial services. The OPs do not require a license from GMADA as it has executed a concession agreement dated 15.04.2009 with it. The project site lease period is for a period of 90 years. The OPs controverted the other averments of the complainant regarding any deficiency in service or unfair trade practice on their part and hence prayed for dismissal of their complaint.
7. The complainant tendered in evidence copies of documents Ex.C-1 to Ex.C-15 and his affidavit and closed the evidence. As against it, OPs tendered in evidence affidavit of Arunav Pankaj, authorized signatory Ex.OP-A alongwith copies of documents Ex.OP-1 to Ex.OP-17 and closed the evidence. Consumer Complaint No.942 of 2017 9 Main Order:
8. We have heard the learned counsel for the parties and have also examined the record of the case. The first submission raised by counsel for OPs is that this Commission has no pecuniary jurisdiction to try the complaint, because the value of the subject matter in this case is less than Rs.20,00,000/-. We find no force in this submission, as raised by counsel for OPs. The total cost of the units are Rs.19,63,500/- and Rs.31,59,700/- respectively. In main complaint no.942 of 2017, the cost of the unit is Rs.19,63,500/- as set out in it and by including interest and compensation for mental harassment, the value exceeds Rs.20,00,000/- in this case. The contention of OPs is not accepted and this point is ruled in favour of complainants by holding that this Commission has necessary pecuniary jurisdiction to try the complaints.
9. The next point as strongly agitated by counsel for OPs is that complainants are not proved to be consumers in this case of OPs in as much as they have invested the amounts in commercial project just to generate profits solely. The OPs have failed to produce on record any evidence to the effect that complainants are property dealers or they are doing this business of sale purchase of real estate for generating profits only. The emphasis has been laid on this point by counsel for OPs, that it is a commercial unit and complainants have invested in it just for the sake of generating profits. On the other hand, counsel for complainants argued that complainant specifically pleaded in complaint no.942 of 2017 in para Consumer Complaint No.942 of 2017 10 no.1 of the complaint that he purchased the unit in question for the purpose of earning source of livelihood by means of self employment and for the personal use of his wards. In complaint no.1038 of 2017, complainant pleaded in para no.1 of it that he purchased the unit in question exclusively for the purpose of earning source of livelihood by self-employing himself. The complainant further pleaded and deposed above averments in their affidavits as well on the record. It is settled principle of law that a person can either do the work himself or with the assistance of his family members and it would cover within the definition of self employment, as given in the explanation under Section 2(1)(d) of the Act. Undoubtedly, it is a commercial project, but complainants specifically pleaded and proved in their affidavits on record that they purchased for their self employment to earn their livelihood and of his wards, in the main complaint. It has also appeared in evidence and pleading on record that they do not deal in sale and purchase of the real estate. The OPs also obtained declaration from them to the effect that office space would be used by them for the purpose, for which it was sub-leased to them only. The declaration furnished by complainants to OPs are on the record. The OPs failed to rebut this evidence of complainants and OPs have also failed to prove on record that they deals in sale and purchase of real property and other properties also and purchased it for the sake of generating profits. In this view of the matter, the contention of OPs is not accepted and reliance of OPs on law laid down in C.C. No.1924 of 2016 decided on 20.01.2017 by the National Consumer Complaint No.942 of 2017 11 Commission is not applicable in this case on the point that complainant was already earning sufficient source of his livelihood and hence, he cannot be said to be consumer. The facts of these complaints are different from the cited authority. The reliance of counsel for OPs on law laid down in "Rajneesh Malik Vs. BPTPLtd. and others" 2016(II)CPR-299 to the effect that complainant has substantial income and owns two commercial properties at a time of third commercial property as booked by him is held for generating profits. The observation of this authority is not applicable to the given facts of the cases in hand. The reliance of counsel of OPs on law laid down in "Rishi Malhotra Vs. M/s Blue Coast Infrastructure Development Pvt. Ltd." 2017(1)CPJ-541 by the National Commission has also been found not applicable in this case. The OPs have also failed to proved on record by leading any cogent evidence to the effect that complainants purchased the other properties in other projects for generating profits. Herein the explanation of Section 2(1)(d) of the Act permits the purchase of commercial goods or commercial services, if they are required by the purchaser exclusively for the purpose of exclusively earning his livelihood by means of self employment. In this view of the matter the complainants are held to be consumers of OPs.
10. The next controversy involved in the cases is whether the complainants are entitled to refund of the amounts on account of deficiency in service and unfair trade practice of OPs. The OPs published brochure Ex.C-1 for subleasing the project to various Consumer Complaint No.942 of 2017 12 allottees who apply for it. The brochure contains salient features of this project to be developed by OPs. The complainant applied for allotment of office space on sublease basis for 90 years and paid the amounts to OPs. Ex.C-2 is the copy of cheque of Rs.Two Lakh issued by complainant in the name of C & C Towers Limited OPs. Ex.C-3 is the copy of letter by complainant to OPs to the effect that he has paid 35% of total payment of unit to OPs, but he would not be liable for any interest or liability on account of delay of balance payments and this letter has been received by OPs on 21.03.2012. Ex.C-4 is the copy of cheque of Rs.59,500/- issued by complainant to OPs dated 02.06.2012 and Ex.C-5 is the copy of another cheque of Rs.65,137/- dated 07.10.2012. The OPs issued letter of allotment dated 22.10.2012 to complainant for subleasing the office space for a long period. The OPs undertook to complete the construction of the unit within 60 months from the compliance date 16.12.2009, as per clause 1.3.3 of allotment letter Ex.C-6 in main complaint. The compliance date in this case is stated to be in the above referred clause of the allotment letter as 16.12.2009. The period of five years fixed for completion of the construction by OPs of this project comes to an end on 16.12.2014 in the main complaint. Similarly, the period prescribed for completion in the consolidated complaint came to end also. No force majeure circumstances have been established beyond any shadow of doubt by OPs on their part in this case, justifying the extension of time in completion of the project. The complainant has paid the amounts to OPs, vide different cheques Consumer Complaint No.942 of 2017 13 Ex.C-7 to Ex.C-14 on the record. The statement of account is Ex.C-15 of complainant showing payments of the amounts, which were debited from his account from time to time. One Sharanjeet Kaur obtained information under Right to Information Act about this project from OPs to the effect that construction would restart by July 2015 and the project would be completed by mid of the year 2017, vide Ex.C-20. Vide Ex.C-22 GMADA supplied the information to Sharanjeet Kaur under Right to Information Act about this project of OPs on 29.09.2016 stating that no license for construction was granted to OPs by GMADA. No agreement was executed with government by OPs for development of project. It is, thus, evident from this information supplied by Public Information Officer GMADA under RTI Act to Sharanjeet Kaur that no license was granted to OPs for development of the project. The complainant sought refund of his deposited amount vide letter dated 09.07.2017 Ex.C-23 on the record. The OPs wrote letter Ex.C-24 to complainant for payment of interest. Ex.C-25 is the letter written by OPs to GMADA regarding initiation of proceedings by GMADA for termination of contract with OP company. Vide Ex.C-26 dated 28.06.2016, OPs issued letter to Sharanjit Kaur to restart the project with effect from February 2016 on daily basis. Ex.C-27 is the copy of letter by Sub-Divisional Engineer (C-2), GMADA to Superintendent-cum-APIO, office of GMADA for giving information under RTI Act to the effect that the proceedings for cancellation of agreement with OPs have been started by GMADA for not completing the work in time by OPs. The Consumer Complaint No.942 of 2017 14 complainant also reiterated the above averments in his affidavit Ex.C-A on the record. The OPs have not tendered any documents in evidence in complaint no.942 of 2017, but the OPs tendered in evidence documents in complaint no.1038 of 2017 i.e. copy of resolution Ex.OP-1. Ex.OP-2 is the copy of application for allotment for commercial office by complainant Dhananjay Singh. Ex.OP-3 is the copy of notice of award by PIDB regarding development of bus terminal-cum-commercial complex at Mohali under PPP format. Ex.OP-4 is the copy of concession agreement. Ex.OP-5 is the copy of project site lease deed of the project in question. Ex.OP-6 is the copy of letter from GMADA to OPs dated 27.01.2010 to the effect that the GMADA passed the revised plan of OPs and granted the permission for construction of the project as per terms and conditions, as mentioned therein. Ex.OP-7 is the copy of letter dated 29.12.2010 from GMADA to OPs regarding NOC from NHAI. Ex.OP-8 letter dated 04.04.2011 from GMADA to OPs regarding granting permission for construction of buildings. Ex.OP-9 is the copy of weather report of 03.09.2011, 07.09.2011 and 08.09.2011. Ex.OP-10 is the copy of status report DBTCC Mohali dated 03.10.2011. Ex.OP-11 is the copy of certificate given of CC towers regarding concession agreement. Ex.OP-12 is the copy of environment clearance for establishment of bus terminal-cum- commercial complex. Ex.OP-13 is the copy of no objection certificate dated 09.04.2010 by Punjab Pollution Control Board Vatavaran Bhawan, Patiala to OPs. Ex.OP-16 is the copy of letter from GMADA Consumer Complaint No.942 of 2017 15 to OPs regarding supplying the information to Sharanjit Kaur under RTI Act. Ex.OP-17 is the copy of permission for occupancy or use of the building. The OPs relied upon above referred evidence regarding delay in the project and in completing the construction work by them.
11. The OPs received the payments from complainant without entering in agreement with government as proved on record, vide Ex.OP-16 (Ex.C-22 in complaint no.942 of 2017), the information provided by GMADA to one Sharanjit Kaur, the co- allottee in this project on 29.09.2016. It is violation of mandate of Section 3 of PAPRA Act, 1995. Not entering into agreement with government for the development of the project by OPs, which is sine qua non for this lease project, as provided under RTI Act to one Sharanjit Kaur and without holding any such approvals regarding above project by OPs, is deficiency in service and unfair trade practice. Even GMADA proceeded to cancel the agreement with OP vide Ex.C-27 dated 11.03.2016 for non-development of the project by OPs. Even OPs undertook to complete the construction of the unit within 60 months from the compliance date 16.12.2009, as per clause 1.3.3 of allotment letter Ex.C-6 and the period of five years fixed for completion of the construction by OPs of this project comes to an end on 16.12.2014 in the main complaint and thereby delayed the construction/development of the project. In consumer complaint no.1038 of 2017, the OPs relied upon Ex.OP-10, the status report of DBTCC Mohali by Mehro Consultants dated 03.10.2011 with copies of newpapers report, but these newspaper reports are without any Consumer Complaint No.942 of 2017 16 date and the status report is for the year 2011 only. The OPs further relied upon weather report Ex.OP-9 for the dates 06.09.2011, 07.09.2011 and 08.09.2011. These are for just for three days and this document is not sufficient to explain the delay in construction/development. The OPs relied upon Ex.OP-17, the partial completion certificate dated 15.12.2016. It is the only partial completion certificate, which is not the completion certificate as per the mandate of law. The OPs failed to produce on record any photographs regarding development of the project by them. We are of the view that OPs failed to comply with clause 1.3.3 of allotment letter dated 22.10.2012 Ex.C-6. The OPs are, thus, found to be deficient in service and guilty of unfair trade practice by violating the mandate of PAPRA Act, 1995 in not developing the project in the schedule time.
Complaint No.942 of 2017
12. As a result of our above discussion, we accept the complaint of the complainant with following directions to OPs:
(i) OPs are directed to refund the entire deposited amounts to complainant with interest @12% per annum from the date of their respective deposits till actual payment.
(ii) The complainant is also held entitled to composite compensation of Rs.40,000/- as compensation for mental harassment and litigation expenses payable by OPs to him.Consumer Complaint No.942 of 2017 17
The above amounts shall be payable by OPs to complainant within 45 days from the date of receipt of copies of this order. Complaint No.1038 of 2017
13. As a result of our above discussion, we accept this complaint of the complainant with following directions to OPs:
(i) OPs are directed to refund the entire deposited amounts to the complainant with interest @12% per annum from the date of their respective deposits till actual payment.
(ii) The complainant is also held entitled to composite compensation of Rs.40,000/- as compensation for mental harassment and litigation expenses payable by OPs to him.
The above amounts shall be payable by OPs to complainant within 45 days from the date of receipt of copies of this order.
14. Arguments in these complaints were heard on 15.02.2019 and the orders were reserved. The certified copies of the orders be communicated to the parties, as per rules.
15. The complaints could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER February 21, 2019.
(MM)