State Consumer Disputes Redressal Commission
G.J.Singh vs Ansal Properties And Infrastructure ... on 8 June, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Consumer Complaint No.169 of 2015
Date of institution : 14.07.2015
Reserved on : 25.05.2017
Date of decision : 08.06.2017
1. G.J. Singh son of Shri Kartar Singh, resident of 14, Dee Ess
Estates, Dhakoli-Zirakpur, Punjab.
2. Charan G.J. Singh s/o Shri G.J. Singh, Permanent Resident of
14, Dee Ess Estates, Dhakoli-Zirakpur, Punjab, presently
residing at 100-2729, 158 Str. Surrey BC, Canada through his
father Shri G.J. Singh, being the Special Power of Attorney
holder.
......Complainants
Versus
1. ANSAL PROPERTIES & INFRASTRUCTURE LTD. through its
Managing Director, 1202-04, Antriksh Bhawan 22, Kasturba
Gandhi Marg, New Delhi-110 001.
2. ANSAL PROPERTIES & INFRASTRUCTURE LTD., Branch
Office at SCO 183-184, Sector 9-C, Madhya Marg,
Chandigarh-160 009.
3. CONCORD HOSPITALITY PRIVATE LIMITED through its
Managing Director Shri Harpinder Singh Gill, Registered Office
at 1, VPO Bal Sachander, Airport Road, Ajnala Road, Amritsar-
143 101.
4. CONCORD HOSPITALITY PRIVATE LIMITED having its office
at 38, Court Road, Amritsar-143 001.
5. AMRITSAR WORLD TRADE CO. PRIVATE LIMITED through
its Managing Director, Registered Office at RADISSON BLU
HOTEL (Blessings Project Office), AIRPORT ROAD,
AMRITSAR-143 001.
........Opposite Parties
Consumer Complaint No.169 of 2015 2
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Shri Harcharan Singh Guram, Member
Present:-
For the complainants : Shri Ashim Aggarwal, Advocate For opposite party No.1 : None.
For opposite party No.2&5 : Ex parte.
For opposite party No.3&4 : Shri Gunjan Rishi, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The complainants, G.J. Singh and Charan G.J. Singh, have filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short "the C.P. Act") for the issuance of following directions to the opposite parties:-
i) to hand over possession of space applied, vide application dated 21.1.2008, bearing No.AG-10, Aerodrome Business & Shopping Centre, Amritsar after completing all development and after obtaining completion certificate from the competent authority as per clause 23;
ii) to pay interest @ 18% per annum on the amount of ₹56,11,000/- for the period from August 2012 till the date of handing over of possession;
or in the alternative to pay ₹65/- per square foot i.e. ₹51,675/- per month for the period from August 2012 till date of possession as per clause 4(a) together with interest @ 12% per annum from the respective dates of accrual till realization;
Consumer Complaint No.169 of 2015 3
iii) to pay ₹10,00,000/-, as compensation for deficiency in service, unfair trade practice, mental agony and physical harassment suffered by them; and
iv) to pay ₹55,000/- towards litigation expenses.
2. Brief facts of the case are that the present complaint has been filed by complainant No.1 on his behalf and on behalf of his son, complainant No.2; being his Special Power of Attorney holder. It has been averred in the complaint that the complainants being father and son were desirous of starting a small business together for purposes of earning their livelihood by means of self-employment. Complainant No.1 has retired from the Indian Army as a Brigadier on 31.1.2005 and is having Degree of B.A. and Post Graduate Diploma in Business Management, whereas complainant No.2 completed his B.Com in the year 2005. As retirement dues of complainant No.1 were inadequate to maintain the family, he took up post-retirement job with Government of Punjab and was appointed as Director- General C-PYTE (Youth Affairs) for a period of 3 years till April 2008, which was extended later till July 2011. It has further been averred that complainant No.1 being due to retire in April 2008 and having no other income apart from pension planned to start a consultancy business to provide advice etc. in the field of setting up of security agency/other security related service providers. As the complainants had requisite knowledge and qualifications to start consultancy and earn livelihood by means of self-employment, they decided to take up a commercial/office space in Amritsar to start the venture. It was intended to open office at said site from where the complainants Consumer Complaint No.169 of 2015 4 could set up and start consultancy services wherein advice, assistance and consultancy could be provided to persons interested in setting up a security agency or other service industry related to field of security. It is further averred that the wife of complainant No.1 owns a family house in Amritsar and Amritsar having good business potential, the complainants were keen to start the new venture in Amritsar. Accordingly they saw various options and ultimately on being assured by opposite party No.1 of project being developed by them under the name and style of "Aerodrome" located on Airport Road, Amritsar, the complainants chose to apply for office space in the said project. To raise funds for the space, complainant No.1 sold his ancestral property at Kapurthala on 15.1.2008 for a sum of ₹37 lakhs. On 21.1.2008 the complainants signed and filled an application form at office of opposite party No.1 in Sector 42, Chandigarh for allotment of 795 square feet area in the said project at Amritsar for a total sale consideration of ₹56,44,500/- payable by 31.3.2008. Opposite party No.1 allotted Unit AG-10 measuring 795 square feet on the Atrium Ground Floor in the Aerodrome Complex @ ₹7,100/- per square foot to the complainants, vide Allotment letter bearing reference to application form dated 21.1.2008 and the complainants made all payments as per the agreed Payment Plan and total of ₹56,11,000/- was paid to opposite party No.1 before 31.3.2008. It has been further averred that as per clause 11 of the allotment letter, possession of the Unit was to be delivered in three years from the date of booking/allotment. The booking was made on 21.1.2008, hence, the possession ought to have been delivered by Consumer Complaint No.169 of 2015 5 20.1.2011. However, the possession of the same has not been delivered till the date of filing of the complaint. It has further been averred that as per clause 4(a) of the allotment letter, a committed return/interest @ ₹65/- per square foot per month amounting to ₹10,33,500/- was to be paid by opposite party No.1 for the period 21.01.2008 to 20.8.2010. An amount of ₹14,13,561/- was paid by opposite party No.1 during the Financial Year 2010-11, another amount of ₹6,20,100/- was paid during Financial Year 2011-12 and another amount of ₹1,55,025/- was paid during Financial Year 2012- 13 implying that compensation @ ₹51,675/- per month was paid by opposite party No.1 till July 2012 by crediting into the bank account of the complainant in Chandigarh. It also implies that opposite party No.1 acknowledged delay and continued to make payment of ₹65/- per square foot per month till July 2012. It has further been averred that as per clause 4(b) of the allotment letter, opposite party No.1 assured that upon completion of project, the space would be let out by the Developer (opposite party No.1) and minimum lease rent of ₹65/- per square foot amounting to ₹51,675/- per month would be payable by the Developer and that since the space was bought by the complainants for self-occupation to earn their livelihood by means of self-employment, the said lease money may not have been payable, however, it is being mentioned to gauge the minimum compensation that the opposite parties are liable to pay to the complainants for delay in handing over the possession beyond 20.1.2011. In any event the opposite parties are liable to pay ₹65/- per square foot per month in terms of clause 4(a) till handing over of Consumer Complaint No.169 of 2015 6 possession. Complainant No.1 made various visits to the project site since January 2011 onwards and met the officials of opposite party No.1. However, no response was forthcoming regarding the date of delivery of possession. The term of complainant No.1 as Director General C-PYTE (Youth Affairs) came to an end on 31.7.2011, which was set to coincide with the handing over of possession. However, due to uncertainty of possession complainant No.1 was forced to take another job with another Business Group w.e.f. May 2013 and complainant No.2 also started work with ICICI Bank in 2008 and was constrained to shift to Canada in 2013 in search of more lucrative employment opportunities. Thus, the delay in possession caused great mental agony and physical harassment to the complainants. It has been further averred that vide letter dated 15.10.2013 sent by opposite party No.2 the complainants were informed that Concord Hospitality Pvt. Ltd. (CHPL) had undertaken to perform the role of opposite party No.1 and all monies paid to opposite party No.1 were transferred to CHPL. The complainants were surprised to receive another letter dated 23.10.2013 from opposite party No.3 i.e. Amritsar World Trade Co. Private Limited (AWTC) informing that the Project "Aerodrome by Ansal's stood rechristened as "Amritsar World Trade Centrum" and that 'Blessings' group had taken over the said project and would be responsible for the same. It has been further averred that it is clear from the sudden and multiple transfers of Project that said transfers have been done in clandestine manner without reference to complainants or other stake-holders and without providing them any Consumer Complaint No.169 of 2015 7 opportunity to exit the project. It is also not clear whether the project has been legally transferred to opposite party No.2 and 3 by opposite party No.1 as no document evidencing such transfer has been sent to the complainants. As such, as on date all the opposite parties are jointly and severally responsible for the delayed possession and for payment of compensation to the complainants for such delay. This act of the opposite parties not only amounts to deficiency in service but also adoption of unfair trade practice by them.
3. The opposite parties failed to file reply to the complaint despite opportunity.
4. In support of their case the complainants tendered into evidence affidavit of G.J. Singh, complainant No.1, as Ex.CA and documents Ex.C-1 to Ex.C-9. On the other hand, opposite party No.1 tendered in evidence affidavit of Raghunath Sharma, Sr. Manager, Sales and Marketing as Ex.R-1/A and documents Ex.R-1/1 to Ex.R-1/4, whereas opposite parties Nos.3 and 4 tendered in evidence the affidavit of Harpinder Singh Gill, Managing Director of M/s Concord Hospitality as Ex.OP3&4/A.
5. We have heard learned counsel for the complainants and learned counsel for opposite parties Nos.3 and 4 as none appeared on behalf of opposite party No.1 and opposite parties Nos.2 and 5 were proceeded against ex parte. We have carefully gone through the averments of the parties and the evidence produced in support of their respective averments.
Consumer Complaint No.169 of 2015 8
6. It was argued by the learned counsel for the complainants that it is made out from the allegations made in the complaint that the complainants fall under the definition of 'consumer' as they agreed to purchase the Unit for the purpose of earning their livelihood by way of self-employment. It has been specifically mentioned by the complainants that this space/Unit was purchased by them to earn their livelihood by way of self-employment and it has been specifically pleaded in para No.4 of the complaint. Cogent and convincing evidence has been produced in support of the allegations made in the complaint. Therefore, the complaint is very much maintainable before this Commission and cannot be dismissed on the ground that the Unit in question is commercial in nature. The complainants made the entire payment of the Unit in question as per the Payment Plan agreed and a total of ₹56,11,000/- was paid to opposite party No.1 before 31.3.2008 as per demands. As per clause 11 of the allotment letter Ex.C-3, possession of the Unit was to be delivered in three years from the date of booking/allotment. The booking was made on 21.1.2008 and, as such, the possession of the Unit in question was to be delivered by the opposite parties to the complainant by 20.1.2011. However, till date the possession has not been offered and this act of the opposite parties not only amounts to deficiency in service but also adoption of unfair trade practice on their part. In support of his arguments, he relied upon the judgment of Hon'ble National Commission passed in Consumer Complaint No.88 of 2012 decided on 9.9.2014 (Kushal K. Rana v. M/s DLF Commercial Complexes Ltd.) and judgment of 2nd Consumer Complaint No.169 of 2015 9 Additional Bench of this Commission passed in Consumer Complaint No.79 of 2013 decided on 4.4.2016 (Nirmaljit Kaur v. M/s Ansal Properties & Infrastructure Ltd. and others). He also relied upon the judgment of U.T. State Commission passed in Consumer Complaint No.688 of 2016 decided on 27.2.2017 (Arvind Batra and Ors. v. Emaar MGF Land Limited and Ors.).
7. On the other hand, it was argued by the learned counsel for opposite parties No.3 and 4 that the complainants are not consumers as defined under the Act as the property in question, which was booked by the complainants with the opposite parties was commercial in nature and as such, this Commission was not competent to entertain this complaint. It is very much clear from the allotment letter Ex.C-3 that Space No.AG-10 is a commercial property, which is not covered under Section 2(1)(d)(ii) of the Act. They have wrongly alleged in their complaint that they wanted this Unit for their self-employment. It was further argued that since the investment made by the complainants in the project launched and sought to be developed by the opposite parties was purely for commercial purpose and was in fact a speculative investment as a consequence whereof, as per the settled proposition of law applicable to the facts and circumstances arising for consideration in the present complaint, the same is liable to be dismissed as being not maintainable. He relied upon the judgment passed by earlier Bench of this Commission in CC No.123 of 2013 decided on 12.2.2015 (Manmohan Singh v. M/s Ansal Properties and Infrastructure Ltd. and others), vide which 7 Consumer Consumer Complaint No.169 of 2015 10 Complaints were decided. He also relied upon the judgment of Hon'ble National Commission reported in 2016(1) CPJ 430 (Shameen Jahan v. State Bank of India and Anr.)
8. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties.
9. The only question which needs to be decided by this Commission is, whether the Unit in question is a commercial unit or the same was purchased by the complainants for earning their livelihood by means of self-employment? For ready reference, Section 2(1)(d)(ii) of the CP Act is reproduced hereunder:-
"consumer" means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred Consumer Complaint No.169 of 2015 11 payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment;
A perusal of the above reproduced definition of 'consumer' clearly reveals that the commercial aspect of any transaction is not covered under the definition of the 'consumer' except in case it is to earn livelihood for self-employment, which has been specifically pleaded by the complainants in para no.4 of their complaint. Reference was made by learned counsel for opposite parties Nos.3 and 4 to clause 24 of the Allotment Letter, Ex.C-3, which reads as under:-
"That the developer shall have exclusive rights on behalf of the allottee to let out the allotted Shop to any tenant for the decided and agreed purpose Consumer Complaint No.169 of 2015 12 and in furtherance thereof the developer shall have all the rights regarding negotiation of rent and execution of the necessary documents in respect thereof in order to ensure that 'Aerodrome" Commercial Complex at Amritsar becomes fully and effectively operational. This right is reserved by the developer to ensure that best of the brands are brought to the complex as tenants. Good tenants suggested by the allottee may also be considered, but the final right shall always be exercised by the developer to ensure optimum brand mix for the Mall. The allottee assures and undertakes not to object to this arrangement in future also. The developer shall have the sole right to induct the tenant in the said premises for all intents and purposes."
A perusal of the above reproduced clause reveals that under this clause the developer shall have the sole right to induct the tenant in the said premises for all intents and purposes, therefore, if according to this clause, the tenant is to be inducted at the sole discretion of the developer, then the element of self-employment is not covered as alleged by the complainants. However, in the present case the entire payment has been made by the complainants within the agreed period by 31.3.2008 to the opposite parties. Although the opposite parties may have right to negotiate the tenants but in case the complainants themselves agree to the proposal of the opposite Consumer Complaint No.169 of 2015 13 parties to run the shop of any specific brand, then they can also run the said shop to earn their livelihood and being owners of the shop, they have every right to run the brand as approved by the opposite parties. Therefore, merely because there is clause No.24 in the allotment letter to negotiate the tenants does not exclude the complainants that they cannot run the shop with the consent of the opposite parties. Similar view was taken by the 2nd Additional Bench of this Commission in Nirmaljit Kaur's case (supra).
10. In Arvind Batra's case (supra) similar objection was raised by the opposite parties that the complainants are not consumers as the unit, in question, has been purchased for commercial/investment purpose. It has been observed by the U.T. State Commission that the complainants have specifically averred in the opening para of the complaint that since the complainants were willing to own a commercial unit in Mohali for the purpose of earning livelihood by means of self-employment, they applied for a commercial unit in the project of the opposite parties. This averment of the complainants has also been supported by their respective affidavits. It has been held that it may be stated here that there is nothing on record to show that the complainants are property dealer(s), and are indulged in sale and purchase of property on regular basis. Moreover, in the rejoinder, the complainants have stated that the unit, in question, was purchased by them for the purpose of self-employment and the complainants are still seeking possession and are only aggrieved qua the compensation for delay in offering possession of the said unit. Thus, in the absence of any cogent evidence, in support of the Consumer Complaint No.169 of 2015 14 objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration.
11. In Kushal K. Rana's case (supra) the submission made by the counsel for the opposite party was that the complainant is not a consumer. He contended that the complainant is a businessman and he has got another office space. It was submitted by the OP that the complainant had admitted that he was a Director of a Company, namely, M/s Kushal Infraproject Industries (India) Ltd. The address of the Company had been suppressed. It has been held by the Hon'ble National Commission in para no.22 as under:-
"This argument is berefit of merit. The allegation that the complainant is owner of another space is merely an assertion which is not supported by any cogent or plausible evidence. At the time of arguments, the complainant was present and he informed this Commission that he did not have any other office space. The complainant also explained that he is a resident of Uday Park, New Delhi, which is exclusively a residential accommodation. It must be borne in mind that the case was filed in the name of an individual and not by any company. An individual proprietor can run the business for his own and his family benefits or he can earn his livelihood by transacting any business, as per explanation appended to Section 2(1)(d)(ii) of the C.P. Act, 1986. There lies no rub. His status as a 'consumer' does not stand clouded. In para no.5 of the complaint, the complainant has mentioned that he requires the said office space for his own personal use and for carrying out Consumer Complaint No.169 of 2015 15 his business work therein. Consequently, the present case falls within the four corners of Section 2(1)(d) of the C.P. Act, 1986. The argument advanced by the counsel for the OP does not deserve any consideration."
12. In Laxmi Engineering Works v. P.S.G. Industrial Institutes reported in 1995(2) CPC 2 (Supreme Court), the Hon'ble Apex Court in Paras 10 and 18, inter-alia, held as under:-
"10. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself, "exclusively for the purpose of earning his livelihood"
and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood."
"18. Whether the purpose for which a person has bought goods is a "commercial purpose" within the meaning of the definition of expression "consumer" in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case."
13. The whole purpose of pleadings is to give fair notice to each party of what the opponent's case is and to ascertain with precision the point(s) on which the parties argue and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a Consumer Complaint No.169 of 2015 16 concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. A party cannot adduce evidence and set case inconsistent to the pleadings. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. When there is no pleading, the party is precluded from adducing evidence. In the present case the complainants want to start consultancy in order to earn their livelihood by means of self- employment and the averments to this effect have been given in para no.4 of the complaint. The same averments have been made by complainant No.1 in his affidavit Ex.CA. It is an admitted fact that when an averment is made by the complainant the same is to be rebutted by the other party by filing reply etc. However, in the present case there is no reply filed by any of the opposite parties. Therefore, the averments made in the complaint by the complainants remain unrebutted.
14. So far as the judgment of Hon'ble National Commission in Shameen Jahan's case (supra) relied upon by the learned counsel for the opposite parties is concerned, the facts of that case are different because in that case the complainant had applied for loan of ₹4.00 Crores with intention to construct a godown with capacity of 15,000 metric ton for giving it on rent to the Food Corporation of India. The same is not applicable to the facts of the present case. The judgment of this Commission in Manmohan Singh's case (supra) is also not applicable to the facts of the present case as Consumer Complaint No.169 of 2015 17 Seven Consumer Complaints in all were decided by that judgment and all of the complainants were well established and were members of the same family.
15. In view of the proposition of law, referred to above, we are of the considered view that the complainants are 'consumers' as defined under Section 2(1)(d) of the C.P. Act, 1986, and this complaint is very much maintainable. No other point has been raised or argued by the learned counsel for opposite parties No.3 and 4.
16. It was averred in the complaint that opposite party No.2, vide letter dated 15.10.2013 informed the complainants that Concord Hospitality Pvt. Ltd. had undertaken to perform the role of opposite party No.1 and all monies paid to opposite party No.1 were transferred to it. It was also averred in the complaint that the complainants received another letter dated 23.10.2013 from opposite party No.3 i.e. Amritsar World Trade Co. Private Limited informing that the Project "Aerodrome" by Ansal's stood rechristened as "Amritsar World Trade Centrum" and it was informed that 'Blessings' group had taken over the said project and would be responsible for the same. Copies of the letters dated 15.10.2013 and 23.10.2013 have been appended on the record of the case as Ex.C6 and Ex.C7. We have gone through these letters carefully and come to the conclusion that all the three opposite parties are liable jointly and severally.
17. In view of the discussion held above, this complaint is allowed and the opposite parties are directed as under:- Consumer Complaint No.169 of 2015 18
i) to handover possession of Space/Unit No.AG-10, Aerodrome, Business & Shopping Centre, Amritsar, complete in all respects within a period of three months from the date of receipt of certified copy of this order;
ii) to pay interest at the rate of 12% per annum on the amount of ₹56,11,000/- with effect from August 2012 till the date of delivery of the Space/Units, as ordered above;
iii) to pay ₹5,00,000/- as compensation for mental agony and physical harassment suffered by the complainants;
and
iv) to pay ₹33,000/- as litigation expenses.
18. The opposite parties shall comply with the order within two months of the receipt of certified copy thereof, failing which the compensation amount shall also carry interest at the rate of 12% per annum from the date of this order till realization.
19. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER June 08, 2017 Bansal Consumer Complaint No.169 of 2015 19