State Consumer Disputes Redressal Commission
Mukul Syngal vs Taneja Developers & Infrastructure ... on 18 February, 2019
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No.698 of 2018
Date of Institution : 29.08.2018
Date of Reserve : 30.01.2019
Date of Decision : 18.02.2019
Mukul Syngal, S/o Om Parkash, resident of House No.110, Arvind
Nagar, Near N.M.College, Mansa, District Mansa, Punjab.
....Complainant
Versus
1. Taneja Developers & Infrastructure Ltd., (TDI Infrastructure Ltd.)
having its registered office at 9, Kasturba Gandhi Marg, New
Delhi.
Present/Second Address : 10, Shaheed Bhagat Singh Marg,
Gole Market, New Delhi, through its Managing Director
/Chairman /Authorized Signatory.
2. TDI Infratech Ltd., having its Regional Office at SCO 51-52,
Sector 118, Chandigarh-Kharar Road (NH-21), TDI City, Mohali.
3. Sh.Ravinder Kumar Taneja, Managing Director, Taneja
Developers & Infrastructure Ltd. (TDI Infrastructure Ltd.), having
its registered office at 9 Kasturba Gandhi Marg, New Delhi,
Present/ Address : 10, Shaheed Bhagat Singh Marg, Gold
Market, New Delhi.
4. Sh.Kamal Taneja, Director, Taneja Developers & Infrastructure
Ltd. (TDI Infrastructure Ltd.) having its registered office at 9
Kasturba Gandhi Marg, New Delhi.
Consumer Complaint No.698 of 2018 2
Present Address : 10, Shaheed Bhagat Singh Marg, Gold
Market, New Delhi.
5. Sh.Devki Nandan Taneja, Director, Taneja Developers &
Infrastructure Ltd. (TDI Infrastructure Ltd.), having its registered
office at 9, Kasturba Gandhi Marg, New Delhi.
Present Address :10, Shaheed Bhagat Singh Marg, Gold
Market, New Delhi;
6. Sh.Ved Prakash, Director, Taneja Developers & Infrastructure
Ltd. (TDI Infrastructure Ltd.) having its registered office at 9
Kasturba Gandhi Marg, New Delhi.
Present Address :- 10, Shaheed Bhagat Singh Marg, Gold
Market, New Delhi.
7. Smt. Renu Taneja, Director, Taneja Developers & Infrastructure
Ltd. (TDI Infrastructure Ltd.) having its registered office at 9
Kasturba Gandhi Marg, New Delhi, Present Address : 10,
Shaheed Bhagat Singh Marg, Gold Market, New Delhi.
.....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Mr. Rajinder Kumar Goyal, Presiding Member
Present:-
For the complainant : Ms.Ruchi Sekhri, Advocate
For the opposite parties : Sh.Puneet Tuli, Advocate
Consumer Complaint No.698 of 2018 3
RAJINDER KUMAR GOYAL, PRESIDING MEMBER
ORDER
The complainant, Mukul Syngal, has filed this complaint, under Section 17(1) (a) (i) of the Consumer Protection Act, 1986 (in short, "C.P. Act"), for issuance of following directions to the opposite parties:
i) To refund `32,72,927/- along with interest at the rate of 18% per annum from various dates of payment till date of actual payment;
ii) To pay `3,00,000/- on account of compensation and causing mental tension, harassment and mental agony;
and
iii) To pay `33,000/- as litigation expenses;
iv) Any other relief which this Forum may deem fit and proper Facts of the Complaint
2. The brief facts as stated in the complaint are that opposite parties No.1 & 2-Company is running a real estate business in the tricity, whereas opposite parties No.3 to 7 are Directors and in the year 2008 opposite parties floated a Commercial Project named "TDI Business Centre, Mohali" and invited applications for the same. The complainant being interested to buy a commercial space for the purpose of earning livelihood by way of self-employment approached the opposite parties for further enquiries. The complainant is in the business of furnishing and is a sole proprietor of Aarti Furnishers situated at Mansa, Punjab and wanted to shift from his native place i.e. Mansa to Tricity to avail the vast business opportunities exclusively for Consumer Complaint No.698 of 2018 4 the purpose of earning livelihood by way of self-employment. The opposite parties assured the complainant that they had all the requisite permissions/approvals/ clearances from the Government and they had all the arrangements to deliver the physical possession of the commercial space within 36 months from the date of execution of the agreement. On this, the complainant applied for a business space and deposited a sum of `3,20,000/- as registration fee vide receipt dated 28.12.2008 against 1000 sq.ft. commercial space. Vide letter dated 15.09.2011, the complainant was informed that as per final building plans the unit from F9-027 on 9th Floor to F11-028 on 11th Floor has been changed, without getting the prior consent of the complainant. On 25.09.2011, the complainant raised objection for changing the unit as allotted to him on 9th floor previously but to no effect. In March, 2012, the complainant paid a sum of `14,35,769/- to the opposite parties. Two copies of Buyer's agreement were sent to the complainant along with letter dated 26.06.2012, which the complainant signed and sent back to the opposite parties. The opposite parties did not return one copy of the buyer's agreement after signing to the complainant. Till the year 2013, the complainant had paid more than `33,00,000/- against the total sale consideration of `39,01,709/-. On 03.09.2013, FAB Realtors also wrote a letter to the opposite parties to adjust their sales commission against the payment due towards TDI from the complainant. The opposite parties failed to deliver the possession of the space as the construction work was at slow pace. On 27.01.2015, the opposite parties further demanded a sum of `5,08,861/- towards Consumer Complaint No.698 of 2018 5 90% of sale consideration and service tax to which the complainant replied vide letter dated 07.02.2015 asking therein the payment status, which the opposite parties did not reply. On 07.04.2015, the opposite parties again sent a letter demanding `5,20,646/-. On 14.04.2015, complainant sent an e-mail to the opposite parties showing his discontent about not perusing his earlier letter. Vide letter dated 05.05.2015, the complainant was intimated that he has not signed the Buyer's Agreement and asked him to visit their office along with all the relevant documents. On this, the complainant informed the opposite parties and asked them to check their records as he had sent the agreement to the opposite parties on 08.07.2012 duly signed. The complainant vide his letter dated 08.07.2015 explaining factual position, told specifically that he had already sent the copy of the agreement which the opposite parties had not returned after signing it. As per Article 4 of the Buyer's Agreement till date the opposite parties have not delivered the possession of the unit. A sum of `5,00,000/- by way of two cheques bearing No.675610 and Cheque No.313017 was also paid to the opposite parties. The opposite parties have not shown the complete payment in the statement of account dated 20.06.2015 supplied to the complainant and also no adjustment of commission has been made by the opposite parties as requested by FAB Realtors. The opposite parties, in the account statement have made an addition of `4 lakhs in selling price of `39,01,709/- as car parking charges, which was not mentioned in the Agreement dated 12.05.2012. Against the total sale consideration, the complainant had made a sum of `32,72,927/- to Consumer Complaint No.698 of 2018 6 the opposite parties from the year 2008 to 2013. As per the information sought under RTI from GMADA, it was informed that GMADA has not issued any licence to TDI Infrastructure, Sector 118 to establish Business Centre at that place. It is alleged that the opposite parties have failed to deliver the possession of the allotted unit even after expiry of 9 years from the date of receiving of first payment, which amounts to deficiency in service and unfair trade practice on the part of the opposite parties. Hence, the present complaint for the reliefs as prayed above.
Defence of the Opposite Parties
3. Upon notice, opposite parties appeared and filed their written statement taking preliminary objections that the complainant does not fall within the definition of consumer as defined under the Act as the unit purchased by the complainant is for commercial purposes and not for residential purpose. The complainant has just stated that he booked the said unit in order to shift his business. The complainant is already earning his livelihood and there is no occasion for him to book the present unit for the purpose of earning his livelihood. In this regard, the opposite parties placed reliance on a judgment passed Sahil Chaudhary V. Bhasin Infotech and Infrastructure Pvt. Ltd. in C.C. No.1924 of 2016. The complainant has not approached this Commission with clean hands as he concealed the material facts. The complainant neither a 'consumer nor a 'potential user' as defined under the Act. The complainant bought the unit for extending his business not for shifting, his already established business as he is already Consumer Complaint No.698 of 2018 7 empanelled with different organizations/institutions in the year 2016 and 2017. The complainant has himself defaulted in making the payments due to which the possession was not handed over to the complainant. The project "TDI Business Centre, Mohali comprising the unit, in question is a part of Mega Housing Project namely 'TDI City- Mohali' being set up by the opposite parties at Sector 74-A, 92, 116, 117, 118 and 119. The Mega Housing Project is governed by the provisions of "Industrial Policy, 2003" which was notified by the Government of Punjab vide notification No.5/58/2002/11B/968 dated 26.03.2003 to boost the growth of Industries and Investments in the State and was provided for grant of special package of incentives for the industries. On submission of the proposal by the opposite parties before the Directorate of Industries and Commerce, Punjab an agreement was signed between the opposite party-Company and Government of Punjab on 26.05.2006 for implementation of said Mega Housing Project. Under this agreement, the opposite parties were granted special concessions, relaxations and incentives as per the terms of the Industrial Policy, 2003 and a notification u/S 44 of the PAPRA, 1995, issued by Government of Punjab exempting the Mega Housing Project of the opposite party-Company. The complainant approached the opposite parties through its broker and expressed his interest to invest his amount in the said project. As per clause 8 of the Application Form, the complainant was bound to pay the sale amount and other charges, which he failed to do so. The opposite parties sent various reminders on different dates for making the payment but the Consumer Complaint No.698 of 2018 8 complainant did not come forward to make the payment on time. As the complainant stated that he sent back the copies of the agreement to the opposite parties after signing the same but the opposite parties never received back those agreements and when the officials of the opposite parties approached the complainant he started making excuses to avoid the execution of the Buyer's Agreement. Vide letter dated 27.06.2015, the complainant was informed that he would be able to avail the possession of the unit only after execution of necessary formalities and documentation in respect of the subject unit. The complainant has also not cleared the dues till date despite repeated requests. The complaint is hopeless time barred as there has to be a 'sufficient cause' established by a person approaching a Court of law. On merits, the contention as raised in the preliminary objections have been reiterated and denied all the averments as averred by the complainant in his complaint. There is no deficiency in service or unfair trade practice on the part of the opposite parties. Complaint is without merit, it be dismissed.
Evidence of the Parties
4. To prove his claim, the complainant filed his affidavit and documents Ex.C-1 to Ex.C-24 along with the complaint.
5. Opposite parties filed the affidavit of Ashish Kumar along with documents as Ex.R-1 to Ex.R-8 along with their written statement. Consumer Complaint No.698 of 2018 9 Contentions of the Parties
6. I have heard the learned counsel for the parties and have gone through the record carefully as well as written arguments filed by both the parties.
7. Learned counsel for the complainant argued that the complainant is a sole proprietor of M/s Arti Furnishers, Mansa. He wanted to shift his base from Mansa to Tricity to avail more business opportunities exclusively for the purpose of earning livelihood by way of self-employment. On the assurance of opposite parties that they have all approvals/clearances from the State Government for setting up its Business Centre, Mohali, the complainant booked one commercial space measuring 1000 sq.ft. with them and deposited `3,20,000/- as Registration Fee on 28.12.2008. The total consideration of the unit was fixed as `39,01,709/- As per the Buyer's agreement sent to the complainant vide letter dated 26.06.2012, Ex.C-8, the possession of the unit was to be handed over within 36 months from the date of execution of the agreement i.e. 12.05.2012. As per the account statement dated 20.06.2015 and final statement of account dated 02.11.2016, sent by opposite parties to the complainant. An amount of `33,09,898/- was paid by 11.06.2012 i.e. 85% of the total sale consideration was paid before the stipulated date of possession. After receiving the above amount, the opposite parties failed to deliver the possession of the unit F11-028 within the stipulated period of 36 months and has misutilized the money received from the complainant. The counsel further argued that GMADA has not issued any licence to Consumer Complaint No.698 of 2018 10 the opposite parties-M/s Taneja Developers and Infrastructure Limited to establish any Business Centre in Mohali as per information under RTI received from GMADA. Further, the opposite parties added `4,00,000/- on account of car parking charges, although there is no provision of any car parking charges in the buyer's agreement. The opposite parties are also levying service tax as builder cannot charge service tax from the purchaser. M/s FAB Realtors requested to adjust commission as per their letter dated 03.09.2013 but the opposite parties have not adjusted the same towards receipt of the total payment. All the above facts amounts to deficiency in service and unfair trade practice on the part of the opposite parties, as such, the opposite parties are liable to refund the amount paid by the complainant along with 18% interest till actual payment with costs as prayed in the complaint.
8. Per contra, learned counsel for the opposite parties argued that the complaint is not maintainable as the complainant does not fall under the definition of consumer as defined under Section 2(1)(d)(ii) of the Act. The complainant has sought to buy the unit for commercial purpose / investment and not for residential purpose. The opposite parties since long has been ready and willing to hand over the possession but till date the complainant has not cleared the pending dues despite repeated requests made by the Company. The complainant is himself at fault as he has been continuously defaulting in payment of dues towards the company because of which company is unable to hand over the possession of the unit, in question. The Consumer Complaint No.698 of 2018 11 counsel further argued that the TDI Business Centre, Mohali comprising the unit, in question is part of the Mega Housing Project namely TDI City, Mohali being developed by the opposite parties as per Industrial Policy of Government of Punjab, 2003. The provisions of Punjab Apartment and Property Regulation Act, 1995 are not applicable on the project of the opposite parties. The relief claimed in the complaint is hopelessly time barred and the complaint is not maintainable for misjoinder of parties. The parties impleaded in complaint are not persons immediate incharge of the affairs of the opposite party-Company. He finally prayed to dismiss the complaint with costs.
Consideration of Contentions
9. I have given my thoughtful consideration on the contentions raised by the learned counsel for the parties and have gone through the written arguments filed by the parties.
10. The First question for consideration is whether the complainant falls within the definition of consumer or not? No doubt, the counsel for the opposite parties submitted that the complainant does not fall within the definition of consumer as he has purchased the unit for commercial / investment purposes. The reliance placed by the opposite parties on the judgment in the case of Sahil Chaudhary Vs. Bhasin Infotech and Infrastructure Pvt. Ltd. C.C. No.1924 of 2016 is not applicable in the instant case as in the said case the complainant was at that time working with a hotel in London and earning a salary of 18500/- pounds per annum. Further he booked the commercial space with the Consumer Complaint No.698 of 2018 12 intention to set up his own small business in future, whereas in the instant case, the complainant specifically stated that he wanted to shift his base from a small city Mansa to tricity for running his business exclusively for earning livelihood by way of self-employment. The opposite parties have failed to bring on record any document which shows that the complainant is a property dealer or invested his money for investment with a view to sell the same later on to earn profits from its sale. The Union Territory Consumer Disputes Redressal Commission in Pawandeep Singh Bawa and Anr. Vs. Emaar MGF Land Limited and Anr., 2015(1) CPJ 128 has held as under:-
"Admittedly, the opposite parties failed to produce any evidence that complainants were property dealers or they intended to purchase commercial space/shop, by way of investment, with a view to sell the same, in event of escalation in prices or to rent out the same - Further, they also failed to produce that complainant were having other commercial spaces/shops, in the project in question or other projects - Complainants purchased two shops for earning their livelihood-Complainant is consumer in eyes of law."
In view of the above, the objection taken by the opposite parties in this regard being devoid of merit and must fail and the same stands rejected.
11. Another objection raised by the opposite parties is that the complaint filed by the complainant is time barred. In the instant case, the complainant booked one commercial space with the opposite Consumer Complaint No.698 of 2018 13 parties for a total sale consideration of `39,01,709/- as per agreement dated 12.05.2012, Ex.C-10 and against the total sale consideration the complainant has paid a sum of `33,09,898/- to the opposite parties, whereas the possession of the unit, in question, has not been handed over to him till date. Therefore, it cannot be said that the complaint is barred by limitation; as it is a continuing cause of action till possession is handed over or till refund of the deposited amount. Accordingly, the plea of the opposite parties is hereby rejected.
12. During arguments, counsel for the opposite parties was asked to place approval of the Government to set up a TDI Business Centre at Mohali. But the counsel referred the documents enclosed as Ex.R-1 to Ex.R-3, which pertains to only setting up of a residential project in Villge Ballomajra and Daun, Tehsil Kharar, District Mohali. When he was specifically asked to show any document pertaining to the setting up of a Business Centre, in question, he could not show any such document.
13. Admittedly, the complainant booked one commercial space about 1000 sq.ft. with the opposite parties and paid `3,20,000/- as registration money on 28.12.2008. On 15.09.2011, the opposite parties allotted unit No.F11-028 on 11th Floor, having 1108.44 sq.ft. super area in lieu of the unit No.F9-027 on 9th floor having 1000 sq. ft. super area provisionally allotted to the complainant as per clause 9 of the application form filled by the complainant. The complainant chose Construction Linked Plan and accordingly paid the instalments. As per Ex.C-23, final statement of account, the opposite parties have received Consumer Complaint No.698 of 2018 14 a total payment of `33,09,898/- as on 02.11.2016. The opposite parties sent buyer's agreement to the complainant for signing on 26.06.2012 vide Ex.C-8 and to return the same after signing. As alleged by the complainant, the agreement was sent back on 08.07.2012, to which the opposite parties has alleged that they have not received the signed buyer's agreement. A copy of the buyer's agreement has been placed by the complainant as Ex.C-10, contents of which has not been denied by the opposite parties. As per the agreement the possession of the unit was to be handed over within 36 months from the date of execution of the agreement with a grace period of another 12 months. The date of execution of the Buyer's agreement is 12.05.2012, therefore, the possession was to be handed over by 11.05.2016. The opposite parties have failed to produce any completion certificate/ occupation certificate of the project, in question issued from the competent authorities. No approval/ sanction of the Government has been placed on record to establish a Commercial / Business Centre at Mohali. As per Ex.C-24, GMADA has clearly stated that no license to establish TDI Business Centre in Sector 118 has been issued. From the above, it is clear that the opposite parties had taken money from the complainant and misutilized the same.
14. The charging of service tax of `90,987/- including interest as per final statement of account is not justified. Moreover, no service tax statement submitted to the concerned authority has been placed on record by the opposite parties that it was paid to the Government of India. Regarding the adjustment of commission charges of M/s Fab Consumer Complaint No.698 of 2018 15 Realtors as per Ex.C-11 no details have been placed on record to evident the adjustments in the account of the complainant. As per the Buyer's agreement, Ex.C-10, there is no provision of car parking charges, whereas car parking charges amounting to `4,00,000/- shown in the final statement of account are without any justification and amounts to unfair trade practice on the part of the opposite parties.
15. The CP Act came into being in the year 1986. It is one of the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainant has made payment of substantial amount to the OPs, with the hope to get the possession of the unit within a reasonable period. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and development thereof within a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested his money with the opposite parties, he would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot /unit / flat / space within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the commercial space booked. From the facts and evidence brought on the record of the complaint, it is clearly Consumer Complaint No.698 of 2018 16 made out that the OPs i.e. builders knew from the very beginning that they had not been issued any licence to establish Business Centre Mohali and complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainant to book the plot, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and has to be reasonable and not arbitrary. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. He is entitled to the refund of the amount deposited by him and also compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievances suffered by him on account of the betrayal by the OPs in shattering his hope of getting the commercial space by waiting for all this period.
16. In view of the above, the complaint filed by the complainant is allowed and the opposite parties are directed as under:-
i) to refund a sum of `32,72,927/-, as per prayer, along with interest at the rate of 12% per annum from the respective dates of deposit till its realization;Consumer Complaint No.698 of 2018 17
ii) to pay a sum of `50,000/- as compensation on account of mental agony and harassment as well as litigation expenses.
17. The opposite parties shall comply with the above said directions within a period of 45 days from the receipt of the certified copy of the order.
18. The complaint could not be decided within the statutory period due to heavy pendency of the court cases.
(RAJINDER KUMAR GOYAL) Presiding Member February 18, 2019 parmod