State Consumer Disputes Redressal Commission
Ansal Lotus Melange Projects Pvt. Ltd. ... vs Ashok Khera And Anr. on 16 July, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 327 of 2013
Date of institution: 22.3.2013
Date of Decision: 16.7.2015
1. Ansal Lotus Melange Projects Pvt. Ltd., SCO 183-184, Sector 9-C,
Chandigarh through its Authorised Signatory.
2. Ansal Lotus Melange Projects Pvt. Ltd., Regd. Office at A-1/18 B,
Asaf Ali Road, New Delhi - 110002 through its authorised signatory.
Appellants/OPs
Versus
1. Ashok Khera son of Late Sh. Jagjit Rai Khera,
2. Suchi Khera daughter of Sh. Ashok Khera,
Both residents of Flat No. 5, Block-1, Mohali Employee Society, Sector
68, Mohali.
Respondents/Complainants
First Appeal against the order dated 21.1.2013
passed by the District Consumer Disputes
Redressal Forum, SAS Nagar (Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellants : Sh. Vaibhav Narang, Advocate
For the respondents : None.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
First Appeal No. 327 of 2013 2 The appellants/OPs(hereinafter referred as "OPs") have filed the present appeal against the order dated 21.1.2013 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (hereinafter referred as the District Forum) in consumer complaint No.448 dated 5.10.2012 vide which the complaint filed by the respondents/complainants(hereinafter referred as the complainants) was allowed with a direction to the OPs to refund to the complainants a sum of Rs. 5,02,908/- alongwith interest @ 9% p.a. w.e.f. 8.2.2011 till the date of actual payment and also pay Rs. 5,000/- as cost of litigation.
2. A consumer complaint was filed by the complainants under the Consumer Protection Act, 1986 (in short 'the Act') against the OPs on the allegations that in the year 2010, OPs launched a total commercial project in Sector 115, Mohali at Kharar-Landran Road. Complainant No. 1 had retired in the year 2003 whereas complainant No. 2 is his daughter. Therefore, they with a view to start their business to earn their livelihood they approached the Ops and booked one space of 556.35 sq. ft. bearing No. 7 at First Floor at a total consideration of Rs. 19,61,134/- on 23.11.2010. The complainants had paid a sum of Rs. 19,61,134/- on 23.11.2010 and on 20.1.2011, OPs had issued an allotment letter. On 8.2.2011, the complainants had deposited a sum of Rs. 3,05,908/-. There were two payment plans, one was down payment and other was construction linked instalment plan. They opted for construction link plan, however, upto 8.2.2011, the ops did not start any construction. They started the construction in July, 2012 but they started it with a new project Ansal First Appeal No. 327 of 2013 3 Celebrity Suits. In that project, the Ops converted retail-cum- commercial office complex into residential-cum-shopping complex. In place of business hotel, the ops changed the plan to construct 1 BHK luxury accommodation, which directly affected their livelihood plans. The change of the project was beyond the terms of the contract and plans approved and sanctioned by the Punjab Government and its approval from the competent authority. Due to change of the plan, the complainant requested the Ops for the refund of Rs. 5,02,908/- deposited with the Ops. On 25.8.2012, e-mail was sent and written representation sent on 31.8.2012 instead of refunding the amount, the Ops demanded additional amount of Rs. 6,06,520/-. The act of the Ops amounted to unfair trade practice and deficiency in services. Hence, the complaint with a direction to the Ops for the refund of Rs. 5,02,908/- alongwith interest @ 9% p.a. till actual payment and also pay compensation of Rs. 2 lacs.
3. The complaint was contested by the Ops taking preliminary objections that the complaint was not maintainable; the complainants had applied for the allotment of commercial space for commercial purposes, therefore, the complainants does not fall within the definition of the consumer; complainants had concealed the material facts from the Forum. In fact the complainants had booked a commercial space No. 7-FF with an approximately super area 51.70 sq. meters vide application dated 23.11.2010 in City Centre, Mohali and opted for construction link instalment plan but they had paid just a sum of Rs. 5,02,908/- and failed to pay the remaining payment as per the schedule. Despite endeavour of the Ops, the complainants First Appeal No. 327 of 2013 4 did not turn up to clear the dues and filed this pre-mature complaint. The relief asked for by the complainants cannot be granted as per the terms and conditions of the allotment letter; the complaint was false, frivolous and vexatious, therefore, liable to be dismissed with special costs. The concern of the complainants was based upon assumptions and presumptions that the project was not as per the sanctioned plan. The nature of the project was still commercial, therefore, no re- sanction of the plan was required from any authority and the changes do not affect the basic structure of the project. The single room apartments can be solely for hotel project or for any commercial or residential purposes or shop cum office. On merits, the legal objections taken above were reiterated. It was denied for want of knowledge that complainant No. 1 had retired from Ministry of Finance. In case he had retired then he must be getting pension necessary for livelihood, therefore, it cannot be said that the business was to run to earn the livelihood. Other averments of the complaint were denied and it was submitted that the complainant was not entitled to any refund of the amount as requested according to the terms and conditions of the allotment.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. CW-1/1, brochure Ex. C-1, receipt Ex. C-2, allotment letter Ex. C-3, receipt Ex. C-4, description Ex. C-5, complaint Ex. C-6, email Ex. C-7. On the other hand, the OPs had tendered into evidence affidavit of Amit Rana Ex. RW-1/1, First Appeal No. 327 of 2013 5 allotment letter Ex. R-1, reminder Ex. R-2, letter of OPs Exs. R-3 to 8, allotment of service apartment Ex. R-9.
6. After going through the allegations in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the complaint was allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appellants/OPs have filed the present appeal.
8. We have heard the learned counsel for the appellants.
9. In the appeal, the first point taken by the counsel for the appellants is that the complainants had booked commercial space, therefore, the complainants does not come within the definition of the consumer. In the complaint, it has been simply mentioned that they were to start the business to earn the livelihood. But the word self employment is not raised and it has not been stated what type of business they wanted to run. Certainly, under Section 2(1)(d)(ii) in case any goods or services has been purchased for commercial purposes then these are not covered under the Act but under the explanation in case those goods and services have been purchased to earn their livelihood for self employment then they are covered under the definition of the consumer. Complainants in their complaint has specifically stated that complainant No. 1 had retired from the Ministry of Finance in the year 2003 and complainant No. 2 is his daughter and with a view to start the business to earn their livelihood with the help of his daughter, they booked this space in City Centre, Mohali launched by the Ops. Then in para No. 5 it has been stated that the Ops changed the nature of the complex from the retail-cum- First Appeal No. 327 of 2013 6 office, they turned into residential-cum-shopping complex, which directly affect the livelihood plans of the complainants. It is not necessary that in case the word 'self employment' has not been specifically mentioned then it should be assumed that the complainants do not come within the definition of the consumer. The entire complaint is to be taken into consideration and pleadings are to be interpreted in the manner these have been pleaded. In case they are stating that were to run their own business to earn their livelihood they booked the space, it clearly gives and inference that the space was booked for self employment to earn their livelihood. Complainant No. 1 is a retiree and in case complainant No. 1 getting pension, it does not mean that the retiree could not do any business to enhance the income of his family, therefore, merely because of the fact that complainant No. 1 is a pensioner, therefore, he has his own source of income, therefore, he could not run the business to earn his livelihood. Nothing has been stated regarding income and business of complainant No. 2.
10. An other plea taken by the counsel for the Ops is that it has not been mentioned what type of business is to be run by the complainants and has relied upon the order passed in CC No. 123 of 2013, decided on 2.2.2015 by the Principal Bench of this Commission. In case we go through that judgment, seven complaints were disposed of. In the complaints of Mammohan Singh, he had booked two spaces i.e. Units Nos. 111 and 112 situated on First Floor of the Complex known as "AERODROME", Amritsar with super area of 795 sq. feet each. In the second complaint, Asha Thakur had First Appeal No. 327 of 2013 7 booked the space of Unit No. 114 in the same area but it was not pleaded that she was independent of her husband. Fourth complaint was filed by Aarti Singh in respect of unit No. 118. Fifth complaint was filed by Sehdev Singh in respect of Unit No. 115. In sixth complaint Ranvijay Singh booked Unit No. 006 and in last complaint Raghuvir Singh booked Unit No. 117. In other case, he was an Agriculturist, then he was earning his livelihood from the agriculture and in those circumstances, it was held that they do not come within the definition of the 'consumer'. It is clear from the abovesaid judgment that each case is to be appreciated from the facts of its own case. Since the project was to come up, the nature of business can be decided according to the requirement of the area. It is not necessary that in case the complainant had not mentioned what type of business he was to run because it depends upon the circumstances and location type of business can be fruitful in that space, therefore, merely absence of referring the nature of business in the complaint not assuming that they were not to run any business to earn livelihood by way of self employment. Therefore, we are of the opinion that the findings so recorded by the District Forum that the complainants come within the definition of the 'consumer' are correct and we affirm these findings.
11. The second question raised by the counsel for the appellants is that there was no basic change in the structure and according to the terms and conditions, OPs have a right to forfeit 20% of the amount of the unit i.e. booking amount and the complainants will be entitled only the remaining amount. However, the concern of First Appeal No. 327 of 2013 8 the complainants is that earlier the Ops had launched the project for exclusively commercial purpose i.e. in the nature of City Centre to provide local brand Outlets, Food Courts, Restaurants, Bars, Entertainment and Business Centres, there was no space for residential purposes and now they have changed it to commercial- cum-residential floor. They are going to construct 1 BHK flats. We do not agree with the plea taken by the OPs that there is no basic change in the complex. In case OPs from the City Centre, changed into shop-cum-residential, certainly, there is a change in the nature of the building. Moreover, this has not been got approved from the competent authority. Therefore, without approving these changes from the competent authority, the Ops were not competent to change it and in case they have changed it then it will amount to unfair trade practice on the part of the Ops and in that eventuality the complainants reserve their right to call back their amount spent in that project.
12. It was also argued by the counsel for the Ops that the complainants had defaulted to make the payment. A sum of Rs. 5,02,908/- has been paid by him. His payment plan was construction link, which is as under:-
"Construction linked instalment plan (Rs.)
i. At the time of booking 10% 1,96,113/-
ii. Within 45 days of Booking or 10% 1,96,113/-
allotment whichever is earlier
iii. On Start of Excavation 5% 98,057/-
iv. On casting lower ground floor
roof slab 10% 1,96,113/-
First Appeal No. 327 of 2013 9
v. On casting of ground floor
roof slab 10% 1,96,113/-
vi. On casting of upper ground floor
roof slab 10% 1,96,113/-
vii. On casting of first floor
roof slab 10% 1,96,113/-
viii. On start of internal plastering 10% 1,96,113/-
ix. On start of common area flooring 10% 1,96,113/-
x. On completion of all services 10% 1,96,113/-
xi. At the time of offer of possession 5% 98,057/-
+ stamp duty
+ any other charges as applicable
TOTAL Rs. 19,61,134/-"
13. Upto excavation the complainant had already deposited the approximately 20% of the remaining amount was to be deposited, firstly, on casting lower ground floor goods slab. The counsel for the Op during the course of arguments, referred to the letters Ex. R-2 to R-8 in which payment has been asked for but it does not disclose what was the stage of the construction. In the complaint, it has been specifically stated by the complainants that apart from the excavation no construction has been raised. The Ops have not placed on the record any photograph showing the stage of the construction. In case no construction was raised then according to the construction link plan, the complainants were not required to make the payment. In the absence of any evidence on the part of the Ops that they had started the construction, the complainants cannot be said to be a defaulter.
14. In view of the above discussion, we are of the opinion that the order so passed by the District Forum is justified. We affirm the same.
First Appeal No. 327 of 2013 10
15. We do not find any merit in the appeal and the same is hereby dismissed.
16. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 2,76,000/- in compliance with the order dated 5.4.2013. These amounts with interest accrued thereon, if any, be remitted by the registry to the respondents/complainants in equal share by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
17. Remaining amount, if any due, shall be paid by the appellants to the respondents/complainants within 30 days from the receipt of the copy of the order.
18. The arguments in this appeal were heard on 13.7.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
19. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member July 16, 2015. (Surinder Pal Kaur) as Member