State Consumer Disputes Redressal Commission
1. Ansal Lotus Melange Projects Pvt. ... vs 1. Gaurav Raj Prashar on 4 December, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 448 of 2013 Date of Institution : 17.10.2013 Date of Decision 04.12.2013 1.
Ansal Lotus Melange Projects Pvt. Ltd., A-2, Dhawandeep Building, 6 Jantar Mantar Road, New Delhi, through its Managing Director
2. Branch Manager, Ansal Lotus Melange Projects Pvt. Ltd., SCO 183-184, Sector 9-C, Madhya Marg, Above British Library, Chandigarh.
Appellants/Opposite Parties V e r s u s
1. Gaurav Raj Prashar, resident of House No.1191, Progressive Enclave, Sector 50-B, Chandigarh.
2. Ms. Usha Prashar resident of House No.1191, Progressive Enclave, Sector 50-B, Chandigarh ....Respondents/complainants Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
Argued by: Sh. Vaibhav Narang, Advocate for the appellants.
Sh. Shiv Kumar, Advocate for the respondents.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 03.09.2013, 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 the respondents) and directed the Opposite Parties (now the appellants), as under:-
In view of the above discussion, the present complaint deserves to succeed and the same is accordingly allowed. The opposite parties are directed as under :-
i) to refund the total amount deposited i.e. Rs.4,93,000/- to the complainants
ii) to pay Rs.50,000/- as compensation for mental agony and harassment;
iii) to pay Rs.7,000/- as costs of litigation.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) & (ii) above shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.
2. The facts, in brief, are that the complainants, in order to earn their livelihood, by way of self employment, applied for a commercial space, in the proposed Retail and Commercial Cum Office Complex of the Opposite Parties, namely City Centre situated on Kharar-Landran Road, Mohali, Punjab. The complainants were allotted a commercial space, having approximate super area of 53.15 sq. mtrs. (572.09 sq. ft.), bearing Unit No.SH-25 FF, in the said project, vide allotment letter dated 07.01.2009 (Annexure C-1). The total price of the aforesaid commercial space, was to the tune of Rs.19,16,502/-. It was stated that, out of the total sale price, the complainants paid a sum of Rs.4,93,000/-. Subsequently, the complainants received a letter dated 03.10.2011 (Annexure C-2), from the Opposite Parties, whereby they demanded a sum of Rs.5,84,008/- from them (complainants). When the complainants visited the spot, they found the construction work to be stand still. On making enquiry, the complainants came to know that there had been no construction for the last more than 1 years, due to some litigation, pending against the said project. In this view of the matter, the complainants requested the Opposite Parties to withdraw their letter of demand, and resume the construction work. The complainants also served a legal notice dated 18.10.2011, in this regard, but to no avail. It was further stated that since the Opposite Parties neither carried out the construction, as per the construction linked plan, nor could they satisfy the complainants, as to at which stage, the same (construction) had reached, there was no question of payment of the remaining sale consideration, towards the said commercial space, in question. Ultimately, the complainants asked the Opposite Parties, for the refund of amount, deposited with them, alongwith interest and compensation, but they failed to do so. 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 withdraw the demand letter dated 03.10.2011, to the tune of Rs.5,48,008/-; refund the amount, deposited by them, towards the part price of commercial space, in question, alongwith compound interest @18% P.A., in case they failed to start the construction work, at the site; pay compensation, to the tune of Rs.2 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.22,000/-.
3. The Opposite Parties, in their joint written version, pleaded that the complainants are not consumers, as defined under Section 2(i)(d) of the Act, as they booked the commercial space, for commercial purpose. It was further pleaded that the complaint was premature. It was further pleaded that since the complainants approached the District Forum, with unclean hands, as such, the complaint was liable to be dismissed. It was admitted that the complainants applied for the allotment of commercial space aforesaid. It was also admitted that the same was allotted to them. It was also admitted that a sum of Rs.4,93,000/-, out of total sale consideration of Rs.19,16,502/-, was paid by the complainants, to the Opposite Parties. It was stated that, thereafter, the complainants failed to make payment, though demand notices were sent to them, and, as such, the Opposite Parties were entitled to cancel the allotment of commercial space, and forfeit the amount, deposited by them. It was also admitted that the complainants had opted for the construction linked plan, as per which, the amount was to be paid, at different stages, but they did not do so. It was further stated that the commercial space, allotted to the complainants was complete upto the required stage. 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.
4. The Parties led evidence, in support of 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, has been filed by the appellants/Opposite Parties.
7. I 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 complainants did not fall within the definition of consumers, as defined under Section 2 (i)(d) of the Act, as they booked the commercial space, for commercial purpose and, as such, the complaint was not maintainable. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Explanation appended to Section 2(d) makes it clear that commercial purpose does not include the services availed of by a person, exclusively for the purpose of earning his livelihood, by way of self employment. The complainants, in paragraph number 7 of the complaint, categorically stated that the commercial space, was booked by them, exclusively, for the purpose of earning their livelihood, by way of self employment. No evidence, whatsoever, was produced by the Opposite Parties, to prove that the complainants were property dealers, and were dealing in the sale and purchase of the commercial spaces, for the purpose of investment. No evidence was also produced, by the Opposite Parties, that the complainants were already running commercial activities, on a large scale, and earning huge profits. The commercial space, booked by the complainants, and allotted to them, is very small in size. When the complainants, in their complaint, in paragraph number 7, in clear-cut terms, stated that they booked the commercial space, exclusively, for the purpose of earning their livelihood, by way of self employment, and this averment was duly corroborated through the affidavit of complainant no.1, filed by way of evidence, and no evidence, to the contrary, was produced by the Opposite Parties, by no stretch of imagination, it could be said that they (complainants) did not fall within the definition of consumers. The Counsel for the appellants, however, placed reliance on Rajinder Singh Vs. Taneja Development and Infrastructure Ltd., and Anr., Consumer Complaint No.02 of 2010, decided on 27.05.2011, by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh, in support of his contention that since the commercial space was allotted to the complainants, they did not fall within the definition of consumers. The facts of the aforesaid case, are distinguishable, from the facts of the instant case. No help, therefore, could be drawn by the Counsel for the appellants, therefrom. The submission of the Counsel for the appellants, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
9. It was next submitted by the Counsel for the appellants, that the respondents/complainants, opted for the construction linked plan Annexure R/9, but they did not pay the amount, according to the stages of construction, and, as such, they were defaulters. He further submitted that, thus, they were not entitled to the refund of amount deposited by them. The submission of the Counsel for the appellants, in this regard, does not appear to be correct, as would be discussed hereinafter. No doubt, the complainants, opted for the construction linked plan Annexure R/9. According to this plan, at the time of booking of the said commercial space, the complainants were to pay 10% of the basic sale price thereof. This amount of Rs.1,91,650/-, which was due on 30.08.2009, including Rs.1350/-, was paid by the complainants, as is evident, from the document Annexure R/9. Within 45 days of booking/allotment of the said commercial space, the complainants were required to pay a sum of Rs.1 lac and Rs.90,300/-, on or before 15.10.2009, but they paid the same, on 13.09.2010 and 08.07.2011, respectively. The complainants further also paid a sum of Rs.95,825/-, on 08.07.2011, which was due on 12.03.2010, on account of start of excavation of the said commercial space. Upto that date, the amount shown due, against the complainants was nil. The next installment was to be paid, by the complainants, on casting of GF (ground floor) roof slab. When the complainants went to the site, they found that there was no sign of construction there, what to speak of reaching the stage of casting of GF roof slab, as mentioned in Annexure R-9. No doubt, the Counsel for the appellants, submitted that since the respondents/ complainants asserted, in the complaint, that there was no sign of construction, at the site, when they visited the same, it was for them, to prove this fact. This submission of the Counsel, for the appellants, does not seem to be correct. In my considered opinion, the Opposite Parties, being in possession of the best evidence, to prove the factum, as to at which stage, the construction had reached, were required to produce the same, in this regard. The Opposite Parties, being the builders, must have engaged a number of engineers and architects. They could produce in evidence, their reports, to establish, as to at what stage, the construction had reached, when the demand of next installment was raised by them, from the complainants. Annexure C-2 document dated 03.10.2011, is the second reminder, stated to have been sent by the Opposite Parties, to the complainants. In this document, nothing was mentioned, as to at which stage, the construction had reached. Even in Annexure R-5 letter dated 09.09.2011, nothing was mentioned, as to at which stage, the construction had been raised. Even in letter dated 26.03.2012 Annexure R-7 and Annexure R-8 letter dated 27.08.2012, it was not stated by the Opposite Parties, as to at what stage the construction had reached. Had the construction been really raised, at the spot, and reached at a particular stage, as per the construction linked plan, referred to above, the Opposite Parties would have certainly mentioned the same, in these letters. It is well settled principle of law, that a person, in knowledge and possession of the best primary evidence, is required to produce the same, with a view to prove a particular fact. The complainants could not be said to be in possession of any documentary evidence, showing that the construction had reached at the required stage. When a specific stand was taken, by the complainants, in the complaint, that construction had not registered any progress, at the spot, what to speak of reaching the stage, mentioned in the construction linked plan, and the same was denied by the Opposite Parties, the latter, as stated above, being in possession of the best documentary evidence, in the shape of reports of the engineers and architects, were required to produce the same, to prove this factum. The Opposite Parties, having not produced the same, the District Forum was right, in coming to the conclusion, that the assertion made by the complainants, duly corroborated in the affidavit of complainant no.1, that the construction had not reached the required stage, was correct. Reliance, no doubt, was placed by the Counsel for the appellants, on Anil Rishi Vs. Gurbaksh Singh, Civil Appeal No.2413 of 2006= 2006 (5) ALL MR (SC) 95, a case, decided by the Hon`ble Supreme Court, on 02.05.2006 and G. Ramachandiran Vs. Arumugam Son of Chakrapani, Pondicherry-14, 2013 (3) MLJ 607, a case decided by the Madras High Court, in support of his contention that burden was on the complainants, to prove their case. There is, no dispute, with regard to the proposition of law, laid down, in the aforesaid authorities. However, there is an exception to the general rule of onus of proof, contained in Section 106 of the Indian Evidence Act. According to Section 106 of the Indian Evidence Act, a person within special means of knowledge and possession of a particular fact, must prove the same, by producing the primary evidence. No help, therefore, can be drawn by the Counsel for the appellants, from the principle of law, laid down, in the aforesaid cases. Under these circumstances, it could not be said that the complainants were defaulters, and, as such, they could not claim the relief of refund, referred to above. The submission of the Counsel for the appellants, therefore, being devoid of merit, must fail, and the same stands rejected.
10. The next question, that falls for consideration, is, as to whether, in the circumstances, referred to above, in the foregoing paragraphs, the complainants could stop making payment of the remaining installments, as per the construction linked plan, or not. As stated above, the Opposite Parties, failed to prove, on record, through documentary evidence, which was in their possession, that the construction had reached at a particular stage. In my considered opinion, the complainants were not liable to make payment of the remaining amount. They could not risk their hard earned money, by making payment of the remaining installments, without being any progress, in construction, at the spot, as per the construction linked plan. In Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), no development work was carried out, at the site. Thus, the payment of further installments was stopped by the complainants. It was, under these circumstances, held that the builder could not be allowed to take shelter, under the agreement clause, to usurp the money, deposited by the complainants. It was further held that the builder cannot forfeit the money, paid by the complainants, on account of his own fault, in not carrying out the development work. Ultimately, the Honble National Commission, ordered the refund of amount with interest. The principle of law, laid down, in Prasad Homes Private Limited`s case (supra), is fully applicable to the facts of the instant case. The submission of the Counsel for the appellants/Opposite Parties, in this regard, being devoid of merit, must fail, and the same is rejected.
11. The next question, that falls for consideration, is, as to whether, the complaint was premature. In my considered opinion, the complaint was not at all premature. In letters Annexure R-7 dated 26.03.2012 and Annexure R-8 dated 24.08.2012, sent by the Opposite Parties, it was, in clear-cut terms, stated that, with a view to avoid cancellation proceedings against allotment, the complainants should pay the remaining installments. It means that the Opposite Parties threatened the complainants with cancellation of allotment, made in their favour, in case, they failed to make the payment of remaining installments, as per the construction linked plan, though they themselves failed to prove, on record, by producing the best documentary evidence, which was available with them, as to at what stage, the construction had reached. Once, there was a threat of cancellation of allotment, made in favour of the complainants, by the Opposite Parties, on non-payment of the remaining installments, without any progress of construction, at the site, certainly, a cause of action, accrued to the complainants to file the complaint, and the same (complaint), was, thus, not premature. The submission of the Counsel for the appellants, therefore, being devoid of merit, must fail, and the same stands rejected.
12. It was next submitted by the Counsel for the appellants, that the complainants were guilty of suppression of material facts, in as much as, they did not mention, in their complaint, with regard to the number of letters and reminders sent by the Opposite Parties, for payment of the remaining installments. He further submitted that a person, who approached the District Forum, with unclean hands, was liable to be thrown out, at the very threshold. The mere fact that the complainants did not mention, in their complaint, with regard to receipt of some of the letters or reminders, from the Opposite Parties, demanding the remaining installments, did not mean that they concealed the material facts. Suppression must be of a material fact, going to the root of the case, and impacting the decision, and only then, the Consumer Fora could come to the conclusion, as to whether, the complainants were required to be thrown out, at the very threshold. Non-disclosure of receipt of some of the letters and reminders, by the complainants, received from the Opposite Parties, demanding remaining installments, could not be said to be suppression of material facts, and, as such, they could not be thrown out, at the very threshold. The submission of the Counsel for the appellants, therefore, being devoid of merit, must fail, and the same stands rejected.
13. In my considered opinion, the compensation, awarded by the District Forum, to the tune of Rs.50,000/-, is on the higher side. Similarly, interest @18% P.A., awarded by the District Forum, in default of compliance of the order impugned, within 45 days, from the date of receipt of a certified copy thereof, is also on the higher side. Compensation must be commensurate, with the mental and physical harassment, and the injustice caused to the complainants. Keeping in view the mental and physical harassment; injustice caused to the complainants, and escalation of prices of the property, compensation in the sum of Rs.25,000/-, if granted, could meet the ends of justice. Compensation, in the sum of Rs.50,000/-, awarded by the District Forum, is accordingly reduced to Rs.25,000/-. Similarly, interest @18% P.A. is reduced to 9% P.A. The order of the District Forum, to this extent, needs modification.
14. No other point, was urged, by the Counsel for the parties.
15. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, in the following manner:
i. The appellants/Opposite Parties shall refund the amount of Rs.4,93,000/-, deposited by the respondents/complainants, to them.
ii. The appellants/Opposite Parties are directed to pay compensation, in the sum of Rs.25,000/-, for mental agony and physical harassment, instead of Rs.50,000/-, awarded by the District Forum.
iii. The appellants/Opposite Parties shall pay a sum of Rs.7,000/-, as cost of litigation, as awarded by the District Forum.
iv. The amounts mentioned in Clauses (i) and (ii) shall be paid by the appellants/Opposite Parties, to the respondents/complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which the same shall carry interest @9% P.A., till realization v. Any other direction, given by the District Forum, which is contrary to, or in variance of this order, subject to the modification, aforesaid, shall stand set aside
16. Certified copies of this order, be sent to the parties, free of charge.
17. The file be consigned to Record Room, after completion Pronounced.
December 4, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Rg