Punjab

StateCommission

CC/238/2017

Kamaljeet Singh - Complainant(s)

Versus

Aerens Goldsouk International Ltd. - Opp.Party(s)

Lalit Pathak

06 Apr 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No.238 of 2017

 

                                                          Date of Institution   : 17.07.2017              

                                                          Order Reserved on : 04.04.2018

                                                          Date of Decision     : 06.04.2018

 

1.      Kamaljeet Singh s/o Jagir Singh,

2.      Parminder Singh s/o Kanwaljit Singh,

3.      Amandeep Kaur d/o Manmohan Singh,

         

          All residents of V.P.O Kohara, Tehsil & District Ludhiana.                                                                                                                                                                                                                                                                                                                  ….Complainants

                                      Versus

 

 

1.      Aerens Goldsouck International Ltd., Corporate Office : Gold Souk C-Block, Sector 43, Phase-1, Sushant Lok, Gurgaon   122002, Haryana, through its Director/Authorized      Signatory/Manager.

 

2.      Aerens Goldsouk International Ltd., Site Office: India      International Habitat Center, NH-1, Adjacent to Hardy's World        Amusement Park, Village Quadian, Jalandhar Bye-pass,   Ludhiana through its Director/Authorized Signatory/Manager.

                        

                                                                            Opposite parties

 

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainants       :  Sh. Lalit Pathak, Advocate

          For opposite parties         :  Sh.Sanjeeva Kumar,  Advocate

  …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainants have instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that Amandeep Kaur complainant no.3 is wife of Parminder Singh/complainant no.2 and complainant no.2 Parminder Singh is son of complainant no.1/Kamaljeet Singh. The complainants were in search of office space to start their earnings by means of self-employment to earn their livelihood. They applied for furnished office in the project to OPs by paying advance amount of Rs.15,71,220/- on 22.05.2012 of furnished office measuring 301 sq. ft @ Rs.5000/- per sq. ft at the total price of Rs.15,05,000/- along with Rs.66,220/- as external and internal development charges as well as interest free maintenance security deposit. Nothing remained due from the complainants to be paid to OPs towards sale consideration amount. Unit Buyer agreement dated 12.06.2012 was executed between the parties. OPs assured that on receipt of entire sale consideration amount, the complainants would be assured to return 12% p.a with bank guarantee from the date of payment till the date of delivery of possession of furnished office by OPs. The date of delivery of possession was assured by OPs on 31.12.2014, vide Clause 9 of the application form with further grace period of 6 months extending up to on or before 30.06.2015, at the most. OPs started raising construction of the building and also started making payment of interest @ 12% p.a to the complainants only to the extent of Rs.15,05,000/- after deduction of Rs.1505/- as TDS from the interest amount. OPs continued to make the payments to complainants from June 2012 to June 2015. No interest was paid by the OPs on the balance amount of Rs.66,220/-. OPs have not delivered the possession of the furnished office to them, as agreed upon within time schedule. They sent reminder dated 30.11.2015 to OPs requesting for cancellation of unit and for refund the sale consideration amount along with interest due to deficient act of OPs. As per Unit Buyers Agreement dated 12.06.2012, 5% of the amount was to be paid at the time of delivery of possession only. The OPs illegally charged Rs.66,220/- on 22.06.2012 towards external and internal development charges, as well as interest free maintenance security deposit from the complainants, which were to be paid at the time of delivery of the possession only. The complainants alleged deficiency in service and unfair trade practice on the part of OPs for not delivering the possession to them within agreed time. The complainants served legal notice dated 03.08.2016 upon OPs in this regard, but of no use. The complainants have filed this complaint praying that OPs be directed to return the deposited amount of Rs.15,71,220/- to them with interest @ 18% per annum from July 2015 till realization and further claimed interest on the amount of Rs.66,220/- from May 2012 till realization. The complainants further prayed for compensation of Rs.4 lac for deficiency in service and unfair trade practice on the part of OPs.

2.                Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable before this Commission on account of arbitration clause in the agreement. The complainants are not consumers under Section 2(i)(d) of Consumer Protection Act 1986, as they booked unit for investment purposes only. The complainants are not having any expertise to start specialized business of boutique. On merits, OPs averred that complainant entered into agreement with OP no.1 dated 12.06.2012. OPs offered commercial complex furnished/unfurnished /fully furnished service apartment, convention centre, banquet hall, office spaces, restaurant, bare shells, retail spaces etc. OPs had started making the payments of assured return to complainants. The construction project could not be completed despite receipt of substantial amounts from the complainants in this project. OPs offered an alternative unit to complainants in the other project in Ludhiana for amicable resolution of the dispute. Any deficiency in service was denied by OPs on its part. OPs prayed for dismissal of the complaint.

3.                The complainant no.1 tendered in evidence her affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-13 and closed the evidence.

4.                As against it; OPs availed three effective opportunities to lead their evidence, but OPs failed to lead their evidence, hence evidence of OPs was closed, vide order dated 26.03.2018.

5.                We have heard learned counsel for the parties at considerable length and also examined the record of the case. First point for adjudication, as argued by counsel for OPs is that complainants are not consumers of OPs, as they have purchased this unit for commercial purposes only and their sole aim was investment and earning profits therefrom. We have carefully heard submissions of counsel for OPs on this point. The complainant have pleaded in para no. 3 of the complaint that they have purchased this unit for purpose of earning their livelihood by means of self-employment.  Even affidavit of Kamaljeet Singh complainant has been tendered on oath before this Commission in evidence. He has categorically stated in his affidavit that complainants have purchased this office space for earning their livelihood by means of self-employment, as complainants are members of the same family and this is settled principle of law that if the members of the same family do their work together, it is for their self employment. There is categorical pleading and evidence on the record by the complainants that they have purchased this office space for purpose of earning their livelihood by means of self-employment. The onus now stands shifted to OPs to rebut it. OPs have not brought any evidence on the record to the contrary. There is nothing on the record  adduced in evidence by OPs that complainants are property dealers and they have been dealing in sale and purchase of the property for earning their profits. In view of this matter, the evidence of the complainants has duly established this point on the record, which is sufficient to hold that they are proved to be consumers of OPs in this case.

6.                The next submission of OPs is that there is an arbitration clause in the agreement and hence consumer complaint is not maintainable. This point has already been decided by this Commission, vide order dated 03.11.2017 in declining the application of OPs.

7.                Now, we come to grips with the main controversy in this case. We have to find, as to whether OPs are deficient in service and guilty of unfair trade practice in this case or not. The controversy can be decided with the aid of evidence on the record only.  The evidence of Kamaljeet Singh complainant no.1 furnished  his affidavit on the record has been duly considered by us. Ex.C-1 is application form for allotment submitted to OPs by the complainants for this unit. The complainants paid the amount of Rs.15,71,220/- to OPs, as per receipt Ex.C-4 on the record. The mode of payment is cash as recorded in this receipt Ex.C-4 issued by OPs to complainants. Unit buyers agreement was executed between the parties on 12.06.2012 recording the terms and conditions of this transaction in this case. The buyers agreement has made it clear that OPs agreed to sell fully furnished unit bearing no. B-128-C in Block B measuring 301 sq. ft for sale consideration of Rs.15,71,220/-. As per clause 2.5 of this buyers agreement, OPs were to execute sale deed of this unit in favour of the  purchaser, subject to registration charges and stamp duty to be borne by the vendees. Sale price was to be calculated on the basis of super area. Any increase and decrease in the sale price as a consequence to the increase/reduction in the super area of the said unit shall be payable/refundable, without any interest, at the sq. ft rate as agreed in this agreement. The delay in payment of installments up to 30 days would entail the payment of interest @ 18% per annum, as per Clause 4.1 of buyer's agreement. The buyers agreement was executed between parties on 12.06.2012 and three years period is at the most quite reasonable for delivery of possession by builder. OPs received the entire sale consideration from the complainants, but have not delivered the possession to them so far by completing the project. No completion certificate has been shown by counsel for OPs to us during arguments of this case. We hold that as per clause 9 of application form Ex.C-1, OPs promised to deliver the possession to complainants by 31.12.2014 with further grace period of six months. The time for delivery of possession has already expired and OPs have utilized the hard-earned money of the complainants without delivery of possession thereof for a long period. The receipt of sale consideration amount from the consumers without delivery of possession within the promised time is deficient in service and unfair trade practice on the part of OPs as well. Aggrieved by non-delivery of possession, the complainants moved to OPs, vide Ex.C-8 for cancellation of the unit and OPs replied, vide letter dated 19.12.2015, vide Ex.C-10 offering of an alternative unit. OPs cannot force the complainants for alternate unit against their wish. Consequently, we hold that complainants have paid entire payment towards sale consideration of this furnished unit to OPs, but OPs have not delivered the possession of the unit by completing it to complainants within the agreed time. This is clear deficiency in service on the part of OPs.

8.                This tendency on the part of builders has been deprecated by the National Commission in many authorities in not delivering the possession in the scheduled time by receiving substantial amounts. The National Commission held in "EMAAR MGF Land Limited and another Vs. Dyal Singh, Gurdev Singh Badial" 2015(IV)CPJ-294(NC) that the builders are enjoying the possession of the apartment as well as substantial amount of sale consideration paid by the consumers by not delivering the legal physical possession of apartment within prescribed period and hence are guilty of indulging in unfair trade practice. Such type of unscrupulous act on the part of builders should be dealt with heavy hands. The National Commission has also held in "EMAAR MGF Land Limited & another Vs. Dilshad Gill" III(2015)CPJ-329 (NC) as under:

          "Consumer Protection Act, 1986- Section 2(1)(g), 2(1)(r),         21(a)(ii)- Housing - Allotment of flat- Non-delivery of   possession- Deficiency in service- Unfair trade practice- State    commission partly allowed complaint- Hence appeal- Appellant        did not offer possession within period prescribed under        agreement- Appellants themselves have violated material         conditions with regard to handing over of possession- Now it      does not lie in their mouth to demand further payment from           respondent - Appellants have been enjoying substantial          amount of money received by them in year 2006, till 2013-        Deficiency proved.

On the basis of law laid down in the above authorities, we hold that OPs are deficient in service and also indulging in unfair trade practice, entitling the complainants to seek refund of entire deposited amounts with interest from OPs

9.                As a result of our above discussion, we accept the complaint of the complaints and giving below noted directions to       OPs :-

i)        OPs are directed to refund the amount of Rs.15,71,220/- to     complainants with interest @ 12% per annum, as per Section    12 and Rule 17 of PAPRA Act 1995 from the  date of their           respective deposits till actual payment.

ii)       The complainants are also entitled to compensation of   Rs.50,000/- for mental harassment and Rs.20,000/- as costs of        litigation.

          Compliance of the order be made within 45 days from receipt of certified copy of this order.

10.              Arguments in this complaint were heard on 04.04.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

11.              The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

April 6,  2018                                                                 

(ravi)