Haryana

Sonipat

279/2014

S.L. GUPTA S/O GOPI RAM GUPTA - Complainant(s)

Versus

1. MERA BABA REAL ESTATE PVT. LTD.,2. HARISH KUMAR LUTHARA - Opp.Party(s)

ASHISH GARG

05 Aug 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

 

                Complaint No.279 of 2014

Instituted on: 20.10.2014                                                     

Date of order: 13.08.2015

 

 

SL Gupta son of Gopi Ram Gupta, resident of AP-59, Shalimar Bagh, Delhi.

…Complainant.          Versus

1.M/s Mera Baba Real Estate Pvt. Ltd., C-165, Pushpanjali, Pitampura, New Delhi

Also at: 551, Tower B, Aggarwal Cyber Plaza, Netaji Subhash Place, Pitampura, New Delhi.

                                                                                                ..Respondent no.1.

2.Harish Kumar Luthara Director & Authorized Representative, M/s Mera Baba Real Estate Pvt. Ltd., C-165, Pushpanjali, Pitampura, New Delhi

Also at: 551, Tower B, Aggarwal Cyber Plaza, Netaji Subhash Place, Pitampura, New Delhi.

                                                                                                …Respondent no.2.

 

COMPLAINT UNDER SECTION 12 OF

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh. Ashish Garg, Adv. for complainant.

           Sh. PK Bhagat Advocate for respondents.

 

Before-    Nagender Singh-President.

          Prabha Wati-Member.

           D.V. Rathi-Member.

 

O R D E R

 

         Complainant has filed the present complaint against the respondents alleging therein that the complainant booked a residential plot for his own use/residence in Ganaur Residential Township Project namely Divine City and paid the booking amount of Rs.3,30,000/- in lieu of registration of the said plot and the company has issued the receipt bearing no.DCG 001405 dated 31.3.2006. After six years of the booking, the company has not taken any initiative steps to start their project.  The complainant has made requested repeated requests to the company to refund the total paid amount alongwith interest, but of no use.  In 4/2014, the complainant came to know that the company has already sold the land and project of the company has failed.   The company and its directors are acted fraudulently and they have collected the booking amount in the year 2006-07 and purchased some land on very less price in the year 2006-07 and now sold the same on very higher rates.  The complainant has served the respondents with legal notice dated 1.7.2014  and reminder dated  19.7.2014, but despite this, the respondents have failed to allot the plot or refund the booking amount and that amounts to a grave deficiency in service on the part of the respondents. So, he has come to this Forum and has filed the present complaint.

2.       In reply, the respondents have submitted that the complainant vide registration form dated 31.03.2006 booked a plot of 250 sq. yards at the basic sale price of Rs.6600/- per sq. yards excluding EDC, IDC and all other Govt. dues.  LOI was issued on 8.6.2007 by DTCP Haryana.  Letter dated 25.6.2007 was sent to the complainant for making the payment of 20% of the basic price of the plot i.e. Rs.3,30,000/- and 50@ of the tentative EDC.  The complainant failed to make the payment and letters dated 3.1.2008, 4.3.2008, 23.6.2008, 23.12.2008, 2.4.2009 and 9.5.2009  were sent to the complainant requesting him to make the payment of the second installment,     but of no use. Accordingly, due to the failure of the complainant and under compelling circumstances, the amount deposited by the complainant was forfeited and nothing is due and payable to the complainant. Had the complainant been ready and willing to perform his part of the contract, then he would have deposited the installments and the plot would have been allotted and handed over to him about four years back. Infact the complainant was not having no intention to purchase the plot as he had booked the plot only for commercial purposes for sale in open market. The complainant had booked four plots with the respondents against receipt no.1405 dated 31.3.2006, 1407 dated 31.3.2006, 1408 dated 3.3.2008 and 1506 dated 28.3.2007. It is submitted that in the year 2007 onwards there was slump in real estate market as such the complainant opted not to deposit the installments.  The respondents have denied the fact that they have not taken any initiative steps to start their project and no offer of allotment was made to the complainant.  The complainant himself has failed to deposit the installment as per agreed terms and rendered himself for cancellation of booking.   The respondents have purchased the land for their project much prior to booking by the complainant. The complainant has never visited the office of the respondents to seek refund.   The respondents have also denied that the company has sold the land and their project has failed.  Infact the project is still going on and development work is in progress.   Already plots have been allotted and possession was handed over to these persons who had paid their dues.  Only due to non-payment of the installment by the complainant, the booking amount was forfeited as per the terms of registration form.   The complainant has booked the plot for commercial purposes, so he does not come under the definition of consumer. There is no deficiency in service on the part of the respondents and thus, the complainant is not entitled for any relief and compensation and prayed for the dismissal of the present complaint.

3.       We have heard both the learned counsel for the parties at length and have also gone through the entire relevant record available on the case file very carefully. We have perused the written arguments submitted by the ld. Counsel for the respondents very carefully.

4.       Ld. Counsel for the complainant has submitted that the complainant booked a residential plot for his own use/residence in Ganaur Residential Township Project namely Divine City and paid the booking amount of Rs.3,30,000/- in lieu of registration of the said plot and the company has issued the receipt bearing no.DCG 001405 dated 31.3.2006. After six years of the booking, the company has not taken any initiative steps to start their project.  The complainant has made requested repeated requests to the company to refund the total paid amount alongwith interest, but of no use.  In 4/2014, the complainant came to know that the company has already sold the land and project of the company has failed.   The company and its directors are acted fraudulently and they have collected the booking amount in the year 2006-07 and purchased some land on very less price in the year 2006-07 and now sold the same on very higher rates.  The complainant has served the respondents with legal notice dated 1.7.2014  and reminder dated  19.7.2014, but despite this, the respondents have failed to allot the plot or refund the booking amount and that amounts to a grave deficiency in service on the part of the respondents.

         He has further submitted that the complainant in his affidavit tendered in additional evidence has deposed that he is having two sons namely Naveen Gupta, Durgesh Gupta and one daughter Anuradha Bansal.  He booked four residential plots with the respondents for his own and other family member’s use/residence and at the time of booking, the respondents has no license form any authority to develop residential township.  The complainant is not the proprietor/poartner/authorized signatory of alleged M/s Nav Durga Estate and M/s Nav Estate Property.    There is nothing on record to prove that in the year 2006 to 2009 or till date the complainant has booked another plot in other projects of other builders. M/s Nav Dura Estate and M/s Nav Estate Property have no PAN Card and Bank account.  Without PAN number, bank account and license from the concerned authority, no one can run the property business.  The respondents have placed on record the photographs of M/s Nav Dura Estate and M/s Nav Estate Property.  But these photographs do not speak against the complainant in any manner as there is nothing on record which may go to prove or show that the complainant is the Proprietor/Partner of M/s Nav Durga Estate and M/s Nav Estate Property and the complainant is not registered on the alleged website being a property dealer. So, these photographs are not helpful to the respondents and are also not sufficient to prove that the complainant is the property dealer in any manner.

         On the other hand, ld. Counsel for the respondents has submitted and argued that the complainant vide registration form dated 31.03.2006 booked a plot of 250 sq. yards at the basic sale price of Rs.6600/- per sq. yards excluding EDC, IDC and all other Govt. dues.  LOI was issued on 8.6.2007 by DTCP Haryana.  Letter dated 25.6.2007 was sent to the complainant for making the payment of 20% of the basic price of the plot i.e. Rs.3,30,000/- and 50@ of the tentative EDC.  The complainant failed to make the payment and letters dated 3.1.2008, 4.3.2008, 23.6.2008, 23.12.2008, 2.4.2009 and 9.5.2009  were sent to the complainant requesting him to make the payment of the second installment,      but of no use. Accordingly, due to the failure of the complainant and under compelling circumstances, the amount deposited by the complainant was forfeited and nothing is due and payable to the complainant. Had the complainant been ready and willing to perform his part of the contract, then he would have deposited the installments and the plot would have been allotted and handed over to him about four years back. Infact the complainant was not having no intention to purchase the plot as he had booked the plot only for commercial purposes for sale in open market. The complainant had booked four plots with the respondents against receipt no.1405 dated 31.3.2006, 1407 dated 31.3.2006, 1408 dated 3.3.2008 and 1506 dated 28.3.2007. It is submitted that in the year 2007 onwards there was slump in real estate market as such the complainant opted not to deposit the installments.  The respondents have denied the fact that they have not taken any initiative steps to start their project and no offer of allotment was made to the complainant.  The complainant himself has failed to deposit the installment as per agreed terms and rendered himself for cancellation of booking.   The respondents have purchased the land for their project much prior to booking by the complainant. The complainant has never visited the office of the respondents to seek refund.   The respondents have also denied that the company has sold the land and their project has failed.  Infact the project is still going on and development work is in progress.   Already plots have been allotted and possession was handed over to these persons who had paid their dues.  Only due to non-payment of the installment by the complainant, the booking amount was forfeited as per the terms of registration form.   The complainant has booked the plot for commercial purposes, so he does not come under the definition of consumer. There is no deficiency in service on the part of the respondents and thus, the complainant is not entitled for any relief and compensation.

         In the present complaint, the respondents’ stand is that the complainant has booked the plots for commercial purposes. So, he does not come under the definition of consumer and the amount of the complainant has been forfeited.

         Now the main question arises for consideration before this Forum is whether the plots booked by the complainant were for commercial purposes and whether the forfeiture of amount by the respondent is legal or illegal?

         We have perused the pleadings of the complainant’s complaint very carefully and in the complaint, the complainant has specifically mentioned that he booked the plots with the respondents for his own use.  So, in this way, the complainant has not concealed this material fact from the respondents and from this Forum as well.  He has come to this Forum with his clean hands.  Further in our view, the respondents cannot escape from their legal liabilities by taking this lame excuse particularly when the complainant by way of present complaint has not sought the relief regarding the allotment of the plots, rather he has filed the present complaint for refund of his amount which is lying deposited with the respondents and the respondents are utilizing the same for their personal gains without providing any services of any kind to the complainant.  Further more, when there is no issue regarding allotment of plots by the respondents to the complainant, in our view, this issue regarding commercial purpose would not have been raised by the respondents particularly when the respondents have already done wrong with the complainant by booking the plots without having any licence from any concern or authority at the time of booking i.e. in the month of March, 2006. At that time, the only motive of the respondents was to collect the money from the complainant/consumer by hook or crook. So, at this stage, it does not lie upon the mouth of the respondents to raise such a baseless plea that the complainant has booked the plots for commercial purposes because it was well within the knowledge of the respondents that the complainant has booked the plots in one name.

                        The observation of this Forum is fortified by the decision of the Hon’ble State Commission, Haryana, Panchkula rendered in First Appeal No.242 & 367 of 2015,  decided on   16.07.2015 titled as Usha Sangwan Vs. TDI and TDI Vs. Usha Sangwan, wherein it has been held that merely by purchasing a shop by the complainant for earning her livelihood would not ipso facto put her out of the purview of ‘consumer’ as defined in section 2(i)(d) of the Act.

         We also find force in the law cited by the learned counsel for the complainant titled as Satish Kumar Pandey and another Vs. M/s Unitech Ltd. 2015(2) CLJ 648 wherein the Hon’ble National Commission has held that Consumer Complaint-Maintainability-Commercial purpose, Objective behind acquiring accommodation is to live in it, though on a future date-Mere postponement of date on which purchaser has to shift to residential accommodation is acquired to a commercial purpose.

         Further it is mentioned in the above cited law that-

         “It was contended by the learned counsel for the opposite party that some of the complainants plan to shift to the flats booked by them only after their retirement, meaning thereby that right now they do not need a flat for their personal residence and they will let out the flat on taking possession from the opposite party. The contention is that-that purchase of the flat by such persons would be for a commercial purpose and, therefore, they are not consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act.  I,  however, find no merit in this contention.  The expression commercial purpose used in Section 2(1)(d) of the Act came up for consideration of this Commission in Kavita Ahuja Vs. Shipra Estates Ltrd., CC 137of 2010 decided on 12.2.2015 and the following view was taken:-

         The Expression ‘commercial purpose’ has not been defined in the Act and therefore, as held herein below by the Hon’ble Supreme Court in Laxmi Engineering Works Vs. PSG Industrial Instt. (1995) 3 SCC 583, we have to go by the dictionary meanings,

         “In the absence of a definition, we have to go by its ordinary meaning ‘commercial’ denotes “pertaining to commerce” (Chamber’s Twentieth Century Dictionary) it means “connected with, or engaged in commerce, mercantile, having profit as the main aim” (Collins English Dictionary) where the word ‘commerce’ means “financial transaction especially buying and selling of merchandise on a large scale” (Concise Oxford Dictionary).

         In the case of purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such houses.  If, however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose.  A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment.  He may invest such funds in a bank deposits, shares, mutual funds and bonds or debentures etc.  Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house(s) is higher than the price paid or agreed to be paid by him.  That by itself would not mean that he was engaged in the commerce or business or purchasing and selling the house(s).

         Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity”.

         If a person is residing, say, in a government accommodation and, therefore, does not immediately need to occupy a residential flat and, hence let it out in the interregnum till he retires and has to vacate the govt. accommodation it cannot be said that the residential accommodation is acquired by him for a commercial purpose.  The objective behind acquiring accommodation is to live in it, though on a future date.

         Mere postponement of the date on which the purchaser has to shift to the residential accommodation does not convert the purpose for which accommodation is acquired to a commercial purpose.  I, therefore, find no merit in the contention”.

         The above cited law is fully applicable to the present case.  Thus, it cannot be said that the complainant has purchased the plot for commercial purposes.  The complainant merely has got booked the plot with the respondents.

         On the point of forfeiture of the amount by the respondents wrongly and illegally, ld. Counsel for the complainant has submitted that the respondents have failed to prove any kind of loss they suffered.  The respondents purchased the land at the cheaper rates and has sold the land in the shape of plots to the customers at higher rates.  So, double policy cannot be adopted by the respondents.  The respondents have failed to prove that they have suffered any damages in any manner.

         In support of his contentions, he has relied upon the case law  titled as Kailash Nath Associates Vs. Delhi Development Authority and another, Civil Appeal no.193 of 2015(arising out of SLP(Civil) no.32039 of 2012) decided on 9.1.2015 wherein the Hon’ble Supreme Court of India has held that “The Division Bench has gone wrong in principle.  As has been pointed out above, there has been no breach of contract by the appellant.  Further we cannot accept the view of the Division Bench that the fact that the DDA made a profit from reauction is irrelevant, as that would fly in the face of the most basic principle on the award of damages-namely, that compensation can only be given for damage or loss suffered.  If damage or loss is not suffered, the law does not provide for a windfall”.

    The respondents also submitted that letter dated 25.1.2007, 3.1.2008, 4.3.2008, 23.6.2008, 23.12.2008, 2.4.2009,  9.5.2009 were written to the complainant.  But it is very sorry state of affairs that no receipt of any kind is attached with these letters. So, in the absence of any receipt, it cannot be proved that these letters were ever sent to the complainant by the respondents and thus, these letters are not help to the respondents.

         Further the respondents themselves have admitted that the complainant vide registration form dated 31.03.2006 booked a plot of 250 sq. yards at the basic sale price of Rs.6600/- per sq. yards excluding EDC, IDC and all other Govt. dues.  LOI was issued on 8.6.2007 by DTCP Haryana.  Thus, certainly the respondent could not have started development of residential colony before the issuance of licence.  The booking was done in March/2006 and  the respondents have no licence till 06/2007.  Therefore, the respondents were not in a position to carry out any plotting. Inviting booking and collection of huge amount was certainly an act of unfair trade practice and thus, the respondents cannot derive any benefit. The observation of this Forum is fortified by the decision of the Hon’ble State Commission, Haryana, Panchkula rendered in First Appeal No.114 of 2014 decided on 16.12.2014 titled as Ashok Kumar Versus Mera Baba Real Estate Pvt. Ltd. and taking into consideration the above cited law, we find force in the present complaint and have come to the conclusion that definitely the complainant is entitled to get his deposited amount refunded from the respondents. Accordingly, we allow the present complaint with the directions to the respondents to refund the  deposited amount to the complainant alongwith interest at the rate of 09% per annum from the date of its deposit till realization and further to compensate the complainant to the tune of Rs. five thousands for rendering deficient services, for causing unnecessary mental agony, harassment and further to pay Rs.five thousands under the head of litigation expenses.

         With these observations, findings and directions, the present complaint stands allowed.

         Certified copy of this order he provided to both the parties free of cost.

         File be consigned after due compliance.

 

 

(Prabha Wati) (DV Rathi)            (Nagender Singh)           

Member,DCDRF, Member, DCDRF           President, DCDRF

Sonepat.      Sonepat.                Sonepat.

 

Announced 13.08.2015