Naveen Puri, President;

1        The complainants Sh. S.P. Garg has filed the present complaint under Section 12 of the Consumer Protection Act (herein after called as 'the Act') against Advance India Projects Limited having its registered office at 232-B, Okhla Industrial Estate, Phase-III, New Delhi, 110020 through its authorized signatory Mr. ParveenAdlakha. New address: The Master Piece, Golf Course Road, Sec. 54, Gurgaon 122002 and others (Opposite parties)on the allegations of deficiency in service and negligence in service on the part of the opposite parties with further prayer to pay commitment charges to the tune of Rs. 5,18,400/- (3,72,276 and Rs. 1,46,124) and further refund sinking charges levied illegally to the tune of Rs. 34,800/- and Rs. 1 Lacs with interest and to set aside the demand of Rs. 72,455/- claimed under head of CAM charges besides this compensation of Rs. 10 Lacs, Rs. 1 Lac on account of deficeincyin service, unfair grade practice and Rs. 1 Lac as litigation expenses.

2        The case of the complainant in brief is thatopposite party (hereinafter may be called or referred as OP) is a developer and is the absolute owner and in possession of free hold plot of land admeasuring 5900 sq. yards situated at Batala Road, Amritsar. The OPs being developer has constructed a multistoried commercial retail mall on the said land spread over multi levels/floors known as ‘the Celebration Mall’ (hereinafter may be called or referred as‘Mall’) and the same was constructed according to byelaws/ building plans as approved by the appropriate governmental authorities. As the complainant No.1 is a retired employee from the Government of Punjab chose to invest his savings in purchase of shops in the said Mall for purpose of earning livelihood by way of self-employment. The complainant No.1 approached OPs for the purchase of shops in the said Mall. The complainant No.1 alongwith his wife and daughter purchased two shops bearing no.SF-01 and FF-02. The shops bearing No.SF-01 and FF-02 worth Rs. 17,50,000/- was purchased by complainant No.1 and 2 jointly from O.Ps. The complainant No.1 paid the total consideration to the OPs against the receipts. The complainant will produce the same if the O.Ps will raise any objections qua the deposit of amount. The OPs executed letter of allotment in favour of complainants containing terms and conditions. Thereafter, the sale deed was executed in favour of complainants on 15.03.2012. The original letter of allotment is in possession of the OPs; that at the time of issuing letter of allotment, the complainant was apprised of future plans of the OP. The complainants were allured of tall claims if the complainants will choose to purchase the shops in the Mall but to the dismay of the complainants, such tall claims raised by the OPs at that time proved hollow. At the time of letter of allotment, the OPs have taken with themselves exclusive right to lease out the said premises on behalf of Allottee on such lease shall be for the benefit of Allottee. The OPs assured the complainant that shops purchased by complainants will be leased out to the prominent companies with best brands and ultimately, the complainants will have receive handsome livelihood at this stage of their life (Old age). Further, OPs assured the complainant that the complainants will not be liable to pay any sinking funds which would be Rs. NIL per Sq Ft, Further, the OPs assured the complainants that in case income by way of rentals/ commissions less than Rs. 32,000/- per Month then difference/shortfall between actual receipt and committed rental shall be paid by OPs from 15.10.2012 to 30.04.2016 provided full amount payable under letter of allotment has been paid. Till the date of letter of allotment, OPs have miserably failed to give shop No.SF-01 upon lease to any other person or company as such OPs are liable to pay commitment charges to the complainants Rs.32,000/- per month which the OPs have failed to pay to the complainants from 1.10.2014 to 31.03.2016 i.e. Rs 3,72,276/- payable to complainant No.1 and Rs. 1,46,124/- payable to complainant No.2. The complainant has requested them to pay the same but till date the same has not been paid by OPs to the complainant. Secondly, the OPs have wrongly or illegally and unilaterally deducted and adjusted Rs.34,800/-and Rs. 1 lac on account of ‘Sinking Fund receivable’ from the complainants whereas the OPs have assured complainant at the time of letter of allotment that the sinking funds would be NIL for shop SF-01. The OPs have deducted the same without any prior notice or intimation to the complainants, which is illegal and against the law. The OPs as per terms and conditions are not entitled to deduct any sinking fund unilaterally or as per its own choice. Moreover, vide e-mail dated 06.08.2014, the OPs have already agreed to the complainants and told that if in the clause of allotment letter pertaining to the sinking fund. NIL is mentioned then they will abide the same irrespective of written in sale deed but till today nothing positive has been done by OPs. Further, the OPs are illegally charging the complainants with COMMON AREAMAINTENANCE (herein after may be called as CAM charges) charges with effect from 01.04.2016 up to 31.08.2016 amounting to Rs.72,455/- which is also illegal and against the terms and conditions of letter of settlement and sale deed. The OPs had assured complainants at the time of issuing letter of allotment the CAM Charges will be paid by the respective lessee to whom the shop would have been let out in future. However, in the present case , when having vested right to lease out the property with the OP (Developer) only then OP if failed to lease out the shop since first day of letter allotment, then OPs are not entitled to charge CAM charges from complainants as it is not the fault of complainants. Therefore, for its own inaction of not leasing out shop to any person, liability to pay CAM charges cannot be levied upon complainants who are per se sufferers from the hands of OPs as they have already paid huge money to OPs with no result till today. In return, the OP is levying one after another charges to complainants which they are not liable to pay. The OPs have retained the original allotment letter with them and photo copy without signatures letter of allotment has been handed over to the complainants which also constitutes deficiency in services on their part,  Act of OPs in not leasing out the shop of complainants till today and thereafter is not paying commitment charges as mentioned above and levying of sinking fund and CAM charges unilaterally clearly amounts to deficiency in services as well as unfair trade practice on its part which complainants reserve their right to have suitable compensation as well as litigation expenses whatever may be awarded by competent court of law. Cause of action accrued to the complainant firstly on 31.03.2016 when net payable commitment charges were not paid and till today the cause of action is continuing one. Hence the present complaint.

3        After formal admission of the complaint, notice was issued to Opposite Parties. Opposite Parties appearedthrough counsel and filed written version by taking preliminary objections that the opposite party No.1 is a Limited Co. which is duly incorporated under Companies Act, 1956 as per law. The opposite party No.1 is a jurist person in the eyes of law, as such, is fully entitled and eligible to file the written statement, being the jurist person. . The Opposite party No.1 is filing the Written Statement through their authorized Signatory/ Power of Attorney holder Mr. Deepak Verma vide resolution dated 28.03.2017 passed by the Board of Directors of Opposite Party No.1. The opposite parties No.2 & 3 are also the Directors of Opposite party No.1 being their busy schedule, they are also filing their written reply through their authorized signatory Mr. Deepak Verma. Moreover, Mr. Deepak Verma is well conversant with all the facts of present complaint and is fully entitled, authorized to sign the present Written Statement, affidavit and other required documents/ papers as per need. The complainants have not come to this Form with clean hands and have suppressed various material facts. As such, complainants are not entitled for any relief from this Hon’ble Court. The complainants are estopped by their act and conduct from filing the present complaint against the opposite parties. No cause of action has ever arisen in favour of the complainants and against the opposite parties. The complaint of the complainants is legally not maintainable before this Forum as complainants do not fall and covered under the definition of Consumer and as such, the same is not sustainable and deserves dismissal without going on merits. The complainants have purchased the property in the Celebration Mall which is an unity of Opposite party No.1 for the commercial purposes and with an intention to do business therein of their own and to lease out that which is purely a commercial/ business transaction. As such, grievances, if any, for non-payment of rent, by the Opposite parties which is otherwise false and frivolous claim made by the complainants needs proper detailed evidence which can be adjudicated by Civil Court only. But complainants with a malafide mind just to harass and humiliate the Opposite parties and just to save their court fee are claiming their grievances before this Forum which is otherwise not sustainable in the eyes of law;that the complainants have got no locus standi to file the present complaint against the opposite parties , but present complaint has been filed just to harass, humiliate and pressurized the Opposite parties not to claim their genuine demand of sinking fund, CAM Charges (Common Area Maintenance ) and other dues from the complainants. Even otherwise the claims as demanded by the complainant exceedsRs. 20 Lakh which is beyond the jurisdiction of this Hon’ble Forum. Accordingly, the present complaint deserves dismissal. The complainants have not affixed the requisite court fee alongwith the present complaint, On merits, it is pleaded that purchase of shops in the mall is not for earning of livelihood by way of self employment, rather it is a commercial investment for earning profits, thus these types of transactions are lying under the jurisdiction of this Forum. The shop No. SF-01 is purchased for Rs. 16,85,000/-. The complainants are misappropriating the purchase amount figures for the benefits and to get undue advantage from this Forum. No letter for allotment was ever issued by the opposite parties to the complainants, so question of any terms and conditions contained in that letter does not arise at all. When opposite parties have sell out their property/ shop SF-01 to the complainants, so it become exclusive right of the complainants/ buyers to lease out their property to any one on any terms and conditions and opposite parties have no concern with that except to take common area maintenance charges and sinking fund from the complainants/ purchasers. Since the opposite parties are not liable to pay any rent/ commission to the complainants so question of failing to pay commitment charges to the complainants @ Rs. 32,000/- per month from 1.10.2014 to 31.3.2016 i.e. Rs. 3,72,276/- to the complainant No. 1 and Rs. 1,46,124/- to complainant No. 2 does not arise at all. The opposite parties have denied the other allegations of the complaint and prayed for dismissal of the complaint.

4        Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. The complainant tendered in evidence his affidavit Ex. C-1 alongwith documents Ex. C-2 to Ex. C-14 and closed the evidence.  Ld. counsel for the opposite parties No. 1 to 3 tendered in evidence affidavit of Deepak Verma Assistant Manager Ex. OPs 1, 2, 3/1 alongwith documents Ex. OPs 1,2,3/2 to Ex. OPs 1,2,3/5 and closed the evidence.

5        We have carefully examined all the documents/ evidence as made available on the complaint records (as duly put forth by the participating litigants) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the intentional non-submission of some vital documents by the participating litigants, in the back-drop of the arguments as put forth by the learned counsels for the litigating sides.

6        We find that the present complaint was originally filed as CC # 146/2017 before the learned DCF, Amritsar who upon finding the complainant to have stayed posted as: District Revenue Officer at Amritsar and also as Member DCF at Ludhiana/ Amritsar; and on account of the learned counsel (for the opposite parties) expressing his apprehensions of influence upon the instant adjudicatory; forwarded it in ‘reference’ (expressly for the sake of fitness of things) on 12.02.2018 to the honorable Punjab State Commission, Chandigarh; who treated it as the one routine Transfer Application # 04/2018 and vide its orders dated 10.05.2018 transferred the same to this forum for executing furtherance in its statutory adjudication. Presently, we in compliance to the honorable State Commission’s above orders proceed further with the statutory adjudication of the continuing complaint indexed here as: # 58 of 2018. For the sake of an orderly and sequential comprehension of the consumer dispute that has prompted the present complaint we précis its backdrop as hereunder:

i) The complainant1 upon his retirement from the Punjab Govt. Service preferred to invest his savings (service terminal benefits) to jointly purchase (with his complainant2 wife) the shop # SF 01 in the Celebration Mall, Amritsar; for a consideration money of Rs 17.50 Lac from the titled opposite party Property Developers exclusively for earning their livelihood through self- employment by way of lease rent etc in the ripe years of their advancing age. The OP executed ‘letter of allotment’ favoring the complainants preceding the Sale deed registered on 15.03.2012 with the Sub Registrar, Amritsar.

ii) The complainant1 (on his behalf and complainant2) has stated further that in the allotment letter the OP Developers had assured them (the allottees) of lucrative and remunerative future plans that had attracted them to invest in the OP Developers’ (the then) venture but to their dismay these were never implemented and there has also been no truth in the same as have been summed up hereunder:

1. The allotted (sale-transferred) shops were to be leased out exclusively by the OP Developers them-selves to various business corporate/houses of repute so as to establish one regular investment income/ livelihood in the form of rentals to the elderly allottee investor complainants who were to be compensated to the extent of difference, if any, up to the assured rental of Rs 32,000/- p. m. as commitment charges by the OP Developers with effect from 15.10.2012 to 30.04.2016; 
2. The allottees (with full paid-up consideration) shall not be liable to contribute/ pay towards the ‘sinking fund’ corpus as claused out in the allotment letter;
3. The CAM (Common Area Maintenance) charges shall be paid/ borne by the lessee occupants and the allottees shall not be liable to pay the same;

iii) The complainants have finally alleged that the OP Developers were liable to pay them following amounts (as per the respective counts) that however continued to outstand even after putting forth repeated demands and thus prompted the present complaint seeking various reliefs as:

1. Payment of outstanding commitment charges of Rs 518,400/- (i.e., Rs 372,276/- and Rs 146,124/- to complainants 1 and 2, respectively);
2. Refund of Sinking Fund Charges of Rs 134,800/- (with interest) debited by way of unauthorized deductions from the complainants’ accounts;
3. Setting aside the OP Developers’ unauthorized CAM charges claim of Rs 72,455/-;

4. Lastly, the titled complainants have jointly prayed for the payment of quantified claims of costs (interest and litigation) and compensation (for mental agony and physical harassment) besides punitive damages and other relief as deem fit to the forum;                

7        We find that the complaint was filed by the learned counsel for the complainant as duly admitted by the DCF, Amritsar on 10.03.2017 and notice/ summons were issued to the titled opposite parties for 18.04.2017. Further, learned counsel Sh. ParasLuthra appeared on behalf of all the tiled opposite parties and filed written statement on their behalf on 03.05.2017.

8          The complainant1 (for self and on behalf of his complainant2 wife) filed his affidavit Ex.C1 deposing the allegation contented contents of his complaint besides other evidentiary documents Ex.C2 to Ex.C14 to have cogently proved the same. On the other hand, the learned counsel for the OP Developers has produced the affidavit Ex.OP1,2,3/1 (and other documents Ex.OP1,2,3/2 to Ex.OP1,2,3/5 on behalf of all the titled opposite parties) deposing therein the contents of the written statement & vehemently rebutting the complainant’s claim to his prayed relief. The OPs have admitted the factual parts of issues as contained in present complaint but have denied allegations on ‘issues of law’ sans ‘cogent-evidence’ hence not acceptable in law.

9        The OPs have pleaded the defense of ‘commercial purpose’ and of ‘pecuniary jurisdiction’ vide their two separate applications both dated 16.08.2017 as duly negated by the complainants vide the two separate replies both dated 23.08.2017. We have duly heard learned counsels for both the sides on the two issues and find these both as not tenable here in the present lis. The complainants here have not purchased the ‘shop’ in the Celebration Mall for profiting by virtue of further sale/ commercial exploitation etc but an investment to earn livelihood in the ripe times of their elderly years. Again, the OP Developers have erred to have inadvertently enjoined the cost/ market value of the shop (in question) while reaching the value of suit that somehow does not warrant the virtual assessed amounts to exactitude the statutorily bound pecuniary limits. However, the forum in its judicial acumen/ wisdom vigilantly watches the jurisdictional aspects of each and every suit/ application/ complaint at its admission stage, itself. Thus, we set aside and reject both the defense objections as put forth in the above two applications dated 16.08.2017 that autobiographically get dismissed, herewith.          

10      We find further that the present complainant has successfully proved all his complaint-contented allegations vide his affidavit and other evidentiary documents as enlisted above; Sale Deed copy (Ex.C2), Allotment letter copy (Ex.C14) and blank Lease deed copy format (Ex.C13) do have incorporated terms and clauses providing for the OP’s self imposed duty/ liability to arrange for suitable lease, commitment charges (Ex.C3 & C10) as payable by the OP Developers; Lessee’s Liability to pay (common area maintenance) charges and the OP Developers ratification and herein committed Default get further established vide the various letters/ mails (Ex.C5 to Ex.C12) and others; and we finally find that the OP Developers have somehow ratified (though impliedly) and somewhat expressly the complainant’s claim to some extent vide its duly filed written statement as deposed vide accompanying affidavit and copy of the allotment letter etc; Somehow, we are neither impressed nor convinced by the OP Developers’ defense but instead are of the considered opinion that the situational manifestation entitles the herein complainants to one certain relief under the applicable statute. However, we (in line with the settled law in equity) are inclined to subject our present statutory award to restrictions of ‘moderation’ so as not to cause undue enrichments to the ‘awardee’ and/ or to cast undue excessive ‘distress’ to the delinquent party.            

11      In the light of the all above, we find the hue of actionable statutory merit in the present complaint and thus ORDER the titled herein opposite party Developers to pay commitment charges and refund sinking charges and set aside CAM charges in terms of the related allotment letter, sale deed and lease format etc.(as the same is payable by the lessees); in the favor of the herein titled complainants besides to pay them Rs 50,000/- as compensation for having suffered harassment and Rs10,000/- as cost of present litigation  within 30 days of the receipt of the copy of these orders otherwise the awarded amount shall attract interest @ 9% PA from the date of the orders till actual payment.   

12      Copy of the orders be communicated to the parties free of charges. After compliance, file be consigned to records.