National Consumer Disputes Redressal
Rekha Gautam vs Ambience Infrastructure Pvt. Ltd. on 17 February, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 139 OF 2008 1. REKHA GAUTAM R/o 141,Celestial Heights Plot No.1A Sector 2
Dwaraka New Delhi-110075 Delhi ...........Complainant(s) Versus 1. AMBIENCE INFRASTRUCTURE PVT. LTD. L-4,Green Park Extension New Delhi-110016 Delhi ...........Opp.Party(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER
For the Complainant : Mr. V.V. Gautam, Advocate
Ms. Isha Vashisth, Advocate
Ms. Saloni Singh, Advocate
Alongwith Complainant in person For the Opp.Party : Mr. P.K. Agarwal, Advocate
Mr. Rishabh Tomar, Advocate
Mr. Gurmeet Sachdeva, Advocate
Ms. Nistha Sinha, Advocate
Dated : 17 Feb 2023 ORDER
1.The present Complaint is filed under Section 21(a)(1) of the Consumer Protection Act, 1986.
2. The Complainant approached Opposite Party, in pursuance to the publicity made by them, for purchase of a shop at Ambience Mall, Gurgaon on 14.05.2004. In accordance with the conditions of the allotment, the Complainant submitted an application duly signed by her, along with a cheque of Rs. 2 lacs for purchase of shop at Ground Floor of Ambience Mall, Gurgaon. During 14.05.2004 to 31.10.2004, the Complainant paid Rs. 10,13,750/- to Opposite Party towards the allotment money. Upon receipt of the same, Opposite Party allotted Shop No. G-59 at Ambience Mall, Ambience Island, NH-8, Gurgaon to the Complainant, vide letter dated 25.11.2004. As per the instalment payment, total amount of Rs 1,09,16,780.00 was to be paid to Opposite Party in 10 instalments within 24 months. Opposite Party promised to handover possession of the shop within 36 months from the date of the execution of the agreement including 6 month of moratorium period, failing which Opposite Party was to pay Rs. 25 per square per month for any delay in handing over the possession to the buyer. In accordance to the condition mentioned in the application form, the Opposite Party was required to enter into an agreement with the Complainant after receiving full allotment money. After payment of full allotment money on 31.10.2004 to the Opposite Party, the Complainant repeatedly requested the concerned Executive Shree Sumit, and Vice President Shri Ramesh Shah of Opposite Party, to execute & enter into Commercial Space Buyer Agreement, but in vain.
3. Opposite Party, vide its letter dated 05.07.2005, informed that due to change in layout plan, the shop allotted to the Complainant had been changed from G-59 to-G-51 and the area of the shop has been increased to 1599.53 sq. ft. from 1559.54 sq. ft. and accordingly the value of shop had been proportionately increased to Rs. 1,11,96,710/-. Inspite of receipt of full sale price and other dues amounting to Rs. 1,13,69,585/-, i.e. Rs. 1,72,875/- more than the sale price towards for sale of Shop No. G-51 by the Opposite Party on 20.12.2006, no sale deed was executed in favour of the Complainant.
4. Opposite Party, vide letter dated 22.10.2007, informed the Complainant that the shop allotted to Complainant has been changed from G-51 to G-45 and they let out the shop of the Complainant to M/s Aditya Birla Nuvo Ltd., for their brand Peter England for a monthly rental of Rs. 1,45,250.83 they have executed MOU with Aditya Birla Nuvo Ltd. and had handed over possession to them under agreement of possession and fit out's dated 01.09.2007 and mentioned that lease deed would be executed with M/s Aditya Birla Nuvo Ltd. on standard format of Opposite Party and the Complainant would be entitled to receive rental calculated @ Rs. 83/- per sq. ft. of super area or 10% of monthly sale, whichever is higher. The lease was for a period of 3 years to be renewed for 2 more extension of 3 years. The Complainant protested against the lease to the Opposite Party. The Complainant had taken the shop for setting up a boutique for her livelihood and to provide assistance to her children for education from the income of boutique. The Complainant requested them to cancel the lease with M/s. Aditya Birla Nuvo Ltd., and handover the vacant and peaceful possession to her and execute the sale deed in her favour. In the meeting, held on 01.08.2008, the Complainant was threatened by the Opposite Party to accept the lease or else the allotment would be cancelled. Aggrieved by the deficiency in service by Opposite Party, the Complainant filed this Complaint with following prayer:
"a) To declare the cancellation letter dated 15.11/2000 is null and void and against the terms of allotment
b) to direct the opposite party to deliver the vacant and peaceful possession of shop no.G-45 (earlier marked as G-59 and G-51 respectively), at Ambi Mall, Ambience Island, NH-8, Gurgaon, to the complainant;
c) to execute and register sale deed in favour of complainant;
d) to pay compensation for financial loss, and interest suffered due to the wilful negligence of the opposite party of Rs. 2,52,00,000/- only till the date of filing of this complaint and enhanced compensation (i.e., along with interest @ of 18%) till the receipt of actual possession;
e) pass such and other further order(s) which this Hon'ble Commission may deem fit and proper;
f) To pay cost of litigation to the complainant and to pass such order which this Hon'ble Commission may deem fit and proper."
4. Opposite Party resisted the Complaint by filing Reply whereby it was contended that, vide letter dated 25.11.2004, allotment of the commercial space was made subject to the execution of the Commercial Space Buyers Agreement on Company's standard format and in compliance of all the terms and conditions as given in the application for allotment of space. According to the Policy declared at the time of the development of the said Commercial Mall, the commercial spaces were to be given on lease basis by the Opposite Party to various National and International brands, in accordance with the zonal plan and the brand requirements of the Mall and brand value of the proposed Tenant. The proposed allottees were assured a minimum 9% return on their capital employed in the form of rent. With this stipulation, the Opposite Party allotted limited commercial space of approximately 5% of the total saleable area of the Mall to various persons. By subscribing to the Policy, the Complainant had expressly given her consent and authorized the Opposite Party to negotiate on prospective lease and let the property on lease to any brand on her behalf. It was admitted that the Opposite Party, vide Agreement dated 1.10.2007, let out the space in question to M/s. Aditya Birla Nuvo Ltd. for its brand 'Peter England'. The same was informed to the Complainant on 22.10.2007. On receiving the information, the Complainant argued that the space could have been let out at a much higher rental. The Complainant, then, desired to take the physical possession of the shop, contrary to the agreement and policy of the Opposite Party. Also, the shop had already been let out to M/s. Aditya Birla Nuvo Ltd. for its brand 'Peter England' for a period of nine years and it was not possible for the Opposite Party to handover the possession of the shop to the Complainant. Opposite Party, therefore, terminated the allotment and refunded the entire amount of Rs.1,13,69,585/- received by Opposite Party from the Complainant, vide letter dated 15.11.2007. It was stated that there was no Commercial Space Buyers Agreement executed by the Complainant with the Opposite Party, therefore the allotment does not survive.
5. Heard the Learned Counsel for both the Parties as well as the Complainant in person and carefully perused the record. Learned Counsel for Complainant submitted that the case made out by the Opposite Party is an after-thought, without having any basis and documents to justify their contentions, to deprive the Complainant of her legal right of getting sale deed registered in her favour, and taking possession of the said premises to carry her proposed business of boutique at the said premises. The act of letting out the shop to M/s Aditya Birla Nuvo Ltd. amounts to unfair trade practice and the act of non-execution of Sale Deed of the shop in favour of the Complainant and not handing over possession of the shop amounts to deficiency in service. The Complainant also stated that Opposite Party and its Director are responsible for the creation of false and fabricated documents, including cancellation of allotment letter dated 15.11.2007, issuance of Cheque No. 758601 dated 15.11.2007 in favour of the Complainant. The Opposite Party also replaced Para no. 29 of the Sailent Terms and Conditions for allotment and sale of the Commercial Space in Ambi Mall Complex to deprive the Complainant from succeeding in the instant Complaint before this Commission.
6. Learned Counsel for the Opposite Party submitted that under Clause 4 of the terms and conditions of the allotment, it was made clear that until the Commercial Space Buyer's Agreement is signed and executed by the intending allottee, there shall be no completed contract of sale and the intending allottee shall not be entitled to enforce the same in the Court of Law. It was stated that the allotment was under "Investor's Category" wherein the Opposite Party reserved the right to let out the shops/commercial space in the Mall to the various National/International brands in accordance with the zonal plan and the brand/product requirements of the Mall and the brand value of the proposed tenant/licensee. The proposed allottees were, however, assured that a minimum 9% return would be payable on their capital employed in the form of rent/license fee. The Complainant, vide letter dated 11.07.2007, confirmed that her allotment was under the 'Investor's Category' and specifically authorized the Petitioner to let out the said space. On disputing the right of Opposite Party to let out the space, vide letter dated 15.11.2007, they terminated the allotment and refunded the entire amount of Rs. 1,13,69,585/- by cheque. The Cheque was never presented, nor was it dishonoured. The averment of the Complainant that Opposite Party has forged Clause 29 of the Application is devoid of merit. The Complainant has not filed her copy of the application form. The Complainant has filed a copy of the blank form. The Complainant has not adduced any evidence to show that the document was forged. The right of the Complainant is restricted to the refund of the amount paid by her since Opposite Party was always ready and willing to pay the amount.
7. Reliance is placed on the 'Application for Allotment of Space for Platinum Showroom/Retail Shop/ Retail/ Shop/Restaurant/Office/Other in "Ambi Mall" Complex at Ambience Island on Delhi Jaipur National Highway (NH) - 8, Gurgaon (Haryana)' submitted by the Opposite Party, which is duly filled and signed by the Complainant. The 'SAILENT TERMS AND CONDITIONS FOR ALLOTMENT AND SALE OF A COMMERCIAL SPACE IN "AMBI MALL" COMPLEX, AMBIENCE ISLAND, NH-8, GURGAON' attached with the Application under Clause 29 states that:
"The company shall be entitled to define and prescribe the zoning and usage of the said space. The space shall be used only for specified purpose. The applicant is applying under the Investor's Category and would not put the space to his own use and authorizes the company to give the same on lease/licence, to any person in its sole discretion and on the terms and conditions agreed to by the company at an annual rental not less than 9% of the investment made by the intending allottee. Subsequent lease/licence/renewal shall also be done by the Company. Intending allottee agrees to execute and get registered all such documents as the Company may desire. The intending allottee shall not transfer the space to any person without the consent in writing of the company. In case of refusal, the company shall have option to repurchase the same at the then prevailing/applicable rate as determined by the company. This clause is the essence of the contract. In case of any breach, the allotment shall stand determined and the intending allottee shall be entitled to refund of the amounts paid by him after forfeiting of earnest money, etc. and the company shall have right to re-enter the said commercial space or to stop the supply of essential services including electricity and water to the said Commercial Space till it is restored into its prescribed use."
Learned Counsel for the Opposite Party also drew our attention to the fact that in the original complaint, it was mentioned that the Complainant was an entrepreneur and her intention for purchase of shop was to open a retail outlet. Further due to non-receipt of possession, Complainant could not set up her business and deprived from earning approximately Rs. 5 lakhs per month. It is only in the amended Complaint that she introduced the word 'livelihood'. It appears an afterthought just to come within the ambit of Consumer Protection Act. 1986. It is a settled law that a person who purchases goods with a view to use them for carrying out any activity on a large scale, for the purpose of earning profit, is not a consumer within the meaning of Section 2(d)(i) of the Consumer Protection Act, 1986. Further, the Opposite Party produced letter dated 11.07.2007, whereby the Complainant had consented to the allotment of the Shop as an Investor. The documents produced by the Opposite Party proved that the Complainant did not purchase the property merely to earn livelihood or for self-employment. She, therefore, cannot be treated as a Consumer under the Consumer Protection Act, 1986. The contention of the Complainant that the Opposite Party had forged the signature of the Complainant and had produced false and fabricated documents, if any, needs a detailed examination of evidence and witnesses and cannot be gone into by this Commission in a summary jurisdiction.
9. In the light of aforesaid discussion, this Commission does not have the jurisdiction to entertain the present dispute. The Complaint is dismissed. Parties are at liberty to seek appropriate remedy in any Court/ Forum.
...................... C. VISWANATH PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER