Haryana

Karnal

CC/449/2019

Reena Aggarwal - Complainant(s)

Versus

Ansal Housing & Constructions Limited - Opp.Party(s)

Gurjant Singh

19 Oct 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL  COMMISSION, KARNAL.

 

                                                          Complaint No. 449 of 2019

                                                          Date of instt.18.07.2019

                                                          Date of Decision 19.10.2021

 

1.     Reena Aggarwal wife of Shri Gian Chand Aggarwal resident of ward no.3, Safidon District Jind, age 60 years.

 

2.     PoojaGarg wife of Shri NihalGarg resident of ward no.3, Safidon District Jind, age 49 years.

 

                                                 …….Complainants.

                                      Versus

 

1.     Ansal Housing & Constructions Ltd. through its Authorized Signatory, 15 UGF, IndraParkash Building, 21, Barakhamba Road, New Delhi-110 001.

2.     Ansal Town, Sector-36, near NamasteyChowk, Karnal.

 

                                                                      …..Opposite Parties.

 

Complaint Under section 12 of the Consumer Protection Act, 1986 as amended Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. VineetKaushik…….Member

 

 Argued by: Shri Gurjant Singh, counsel for the complainants.

                   Shri Mohit Sachdeva, counsel for opposite parties.

 

                    (Jaswant Singh President)

ORDER:

 

                        The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainants had booked a shop/unit no.GF-027 situated in Ansal Galleria/housing and construction Ltd. at Karnal measuring 315.15 sq. ft. @ 6000/- per sq. ft. (total amount Rs.18,90,900/-) as they want to start a mobile shop in the complex to earn their livelihood. Complainants paid the said amounts in 20 installments. Complainant paid Rs.1,89,090/- on 15.01.2013 as 1^st installment. Complainants have paid next 18 installments each one of Rs.89,252.50/- from 15.02.2013 to 15.07.2014. The amount of Rs.94545/- was due towards complainants which were to be paid by complainants on delivery of the possession of the shop to complainants and possession of the shop was delivered in the month of August 2014 i.e. just after paying all the installments but OPs failed to do so and as per agreement clause 24 it is mentioned that “the developer shall endeavor to give possession of the unit to the allottee(s) within a reasonable time from the date of execution of allotment letter, subject to force-majeure circumstances such as act of God, fire, earthquake, flood, civil commotion, war, riots, explosion, terrorist acts, sabotage, or general shortage of energy labor equipment facilities material or supplies, failure of transportation, strike, lock outs, action of labor etc. and the allottee shall not be entitled to any compensation on the ground of delay in possession due to reason beyond the control of delay in possession, and due to reasons beyond the control of the developers. At the time of booking of the shop it was assured to complainants that the possession of the shop will be delivered within one year and by that time there will be ample of development around the shop with hospital, school, restaurant, banks etc. and there will be a good business for the shop. The OPs have also shown the same in brochure given to complainants but no development work completed around shop area.

2.             Further, after the repeated requests of complainants, the OPs have not completed the construction as per their promise/assurances and has also not given the possession and when complainants demanded their money which already paid for the shop with interest in the month of August, 2016 then the OPs offered possession letter on 01.09.2016 which was received on 08.09.20216. OP also demanded Rs.3,61,428.76/- which includes Rs.94545/- as balance outstanding and rests of the money have been charged under different heads and also demanded additional charges of Rs.24,020/-. At the time of offer and booking of the shop, it was assured by OPs that possession of the shop will be delivered within one year and OPs failed to do so and till today no construction has been completed at the site. Thereafter, on 10.04.2017 complainants moved an application to CM window Karnal, against the OPs which has been forwarded to District Town Planner, in which representative of OP no.1 Gaurav Pundir, assured that OPs will pay the amount after deduction of 20% amount paid by the complainant but till today OPs have not paid even a single penny to complainant. In this way, there was deficiency in service on the part of the OPs. Hence, complainant filed the present complaint.

3.             On notice, OPs appeared and filed written version, raising preliminary objections with regard to pecuniary jurisdiction; complainant has not come under the definition of consumer; complainant is barred by Consumer Protection Act as there is arbitration clause in the agreement. On merits, it is pleaded that complainants had applied for booking of a shop and vide allotment letter/agreement dated 21.03.2013, there were provisionally allotted a shop/unit bearing no.GF-027, situated in Ansal Galleria in the project Ansal Town Developed by the OP no.1. It is further pleaded that nowhere in the agreement mentioned that possession would be delivered within one year. As per clause 24 of the Agreement, the shop was to be given within a reasonable time and as such the said shop was offered for possession on 01.09.2016 which is quite reasonable as per the prevailing market norms. The statement of Account sent alongwith the offer of possession clearly mentioned, all the outstanding dues of the complainants and they were asked to clear the same in order to get the physical possession. However, instead of clearing all the outstanding dues, complainants sent a legal notice dated 09.11.2016, raising some frivolous and concocted issues thereby asking for refunding of the deposited amount alongwith interest @12% interest. It is further pleaded that complainants have booked the subject unit for investment purpose and as the market is not doing well due to recession in real estate market and complainants did not see much profit in selling the said shop, therefore, they are making false and baseless allegations against the OPs. It is further pleaded that it is clearly mentioned in Clause 20 of the Agreement that “the allottee shall not be entitled to seek refund of amount deposited against the unit once demand of installment against the unit has gone beyond 70% or more.” It is further pleaded that Mr. Gaurav Pundir had not authorized by the OPs to make statements before the DTP on behalf of the OPs in the present matter. It is further pleaded that Mr. Gaurav Pundir never promised to refund any amount within 15 days as alleged by complainants. He merely made proposals for settlement for which he need to take the approvals from the management. No settlement was arrived at in the said meeting as it is quite evident from the bare perusal of the record dated 25.04.2017. It is further pleaded that it is clearly mentioned in Clause 4 to 11 of the agreement, that the basic sale price is exclusive of other allied charges. Accordingly, the OPs demanded a sum of Rs.3,61,428.82 towards balance basic cost and other allied charges and a sum of Rs.24,020.73 is payable to the Maintenance Agency being outstanding towards the maintenance charges. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             The parties then led their respective evidence.

5.             Complainants tendered into evidence affidavit of Reena Aggarwal Ex.CW1/A, affidavit of PoojaGarg Ex.CW2/A, Brocher of Ansal Housing Ex.C1, allotment letter dated 21.03.2013 Ex.C2, possession offer letter dated 01.09.2016 Ex.C3, CM Window order dated 10.04.2017 Ex.C4, statement of Gaurav Pundir dated 25.04.2017 Ex.C5, CM window order dated 17.07.2017 Ex.C6, legal notice dated 05.12.2017 Ex.C7, receipts of installments Ex.C8 to Ex.C25 by which complainants had paid Rs.1795626/-, statement of Gurjant Singh counsel for complainant Ex.C26, order of this Commission dated 09.07.2019 Ex.C27 and closed the evidence on 13.12.2019 by suffering separate statement.

6.             On the other hand, OPs tendered into evidence affidavit of Neha Kapoor Aggarwal Ex.OP1/A, allotment letter Ex.O1, letter of offer of possession Ex.O2, legal notice dated 09.11.2016 Ex.O3, reply to the legal notice dated 01.12.2016 Ex.O4 and closed the evidence on 02.03.2020 by suffering separate statement.

7.             We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

8.             Learned counsel for complainants, while reiterating the contents of the complaint, has vehemently argued that complainants had booked a shop/unit no.GF-027 for consideration of  Rs.18,90,900/- in the project of OPs as they want to start a mobile shop in the complex to earn their livelihood. Complainants had paid Rs.1795626/- to the OPs. The amount of Rs.94545/- was only due towards complainants, which were to be paid by complainants on delivery of the possession of the shop. At the time of booking of the shop it was assured to complainants that the possession of the shop will be delivered within one year and by that time there will be ample of development around the shop with hospital, school, restaurant, banks etc. The OPs have also shown the same in brochure given to complainants but no development work completed around shop area. Even the site in question is still not in a position to take actual physical possession as no development work has been completed by the OPs. Thereafter, complainants requested for refund of their deposited money with interest but despite refunding money, OPs have demanded Rs.3,61,428.76/- which includes Rs.94545/- as balance outstanding and Rs.24020/- as additional charges, which is totally illegal demand in order to harass the complainants. Hence, prayed for allowing the complaint. Learned counsel for complainant has placed reliance onthe case laws titled as M/s PyarideviChabiraj Steels Pvt. Ltd. Versus National Insurance Company Lt. & 3 Ors. Consumer Case no.833 of 2020 decided on 28.08.2020;Laxmi Engineering Works Versus P.S.G. Industrial Institute in Civil Appeal no.4193 of 1995 date of decision 04.04.1995, Anand Kumar Versus Secretary Cum Executive Officer in First Appeal no.1186 of 2014, date of decision 05.05.2016 and Sanjay Gopinath Versus M/s IREO Grace Realtech Pvt. Ltd. And bundle of complaints alongwith the aforesaid complaint NO.2236 of 2016, decided on 31.08.2021.

9.             Per contra, learned counsel for OPs, while reiterating the contents of the written version, has vehemently argued that this Commission has no pecuniary jurisdiction to entertain and try the present complaint, as the total value of the shop in question purchased by complainant exceeds Rs.20 lacs. He further argued that in the agreement executed between the parties, there is an arbitration clause, therefore, the present complaint is not maintainable before this Commission. He further argued that complainants are not consumer of the OPs as per section 2 (1) (d) of the Consumer Protection Act, 1986 (after amendment Section 2(7) of the Consumer Protection Act, 2019) as the complainants had booked the unit in question for investment purpose. He further argued that OPs have rightly demanded a sum of Rs.3,61,428.82 towards balance basic cost and other allied charges and a sum of Rs.24,020.73 is payable to the Maintenance Agency being outstanding towards the maintenance charges. He further argued that in the agreement nowhere mentioned that possession would be delivered within one year, infact, the possession of the shop would be delivered within a reasonable time and the offer of possession dated 01.09.2016, was issued which is quite reasonable as per the prevailing market norms but the complainants failed to take the possession of the shop in question due to recession in real estate market and complainants did not see much profit in selling the said shop. He further argued that complainants purchased the shop in question only for the purpose of earning profit by selling the same on the higher rate. Hence, prayed for dismissal of complaint with costs. Learned counsel of OPs has placed reliance on the case laws titled as Laxmi Engineering Works Vs. P.S.G. Industrial Institute 1995 (3) SCC 583; JagmohanChhabra Vs. DLF Ltd. IV (2007) CPJ 199; Travel India Bureau Pvt. Vs. HUDA II (2008) CPJ 329;Shikha Birla Vs. DLF Relaxable Developers Ltd. CC no.183 of 2012; M/s Richa& Co. Vs. DLF Universal Ltd. CC no.236 of 2012; ChilkuriAdarsh Vs. M/s EssEssVee Construction Ltd.” III (2012) CPJ 315; Sunil Gupta Vs. Today Homes & Infrastructure Ltd. CC no.5 of 2014; TDI Vs. Rajesh Jain, Revision Petition decided on 01.12.2015 and S.P.Chengalvaraya Naidu Vs. Jagannath AIR 1994 SC 853.

10.           Admittedly, the complainants had booked a shop/unit no.GF-027 in the project of OPs. It is also admitted that complainants had paid Rs.1795626/- to the OPs as per payment schedule.

11.           The first question for consideration before us is that whether this Commission has pecuniary jurisdiction to try and entertain the present complaint or not?

12.           The complainants had purchased the shop in question for an amount of Rs.18,90,900/- and had deposited only Rs.17,95,626/- with the OPs. The complainant had prayed for refunding of Rs.17,95,626/- as the OPs had failed to handover the physical possession of the shop in question to the complainants within time. The total sale consideration of said shop/unit and the amount prayed for by the complainant is less than Rs.20,00,000/- (Rs. twenty lacs). As per Consumer Protection Act, 1986, this Commission was jurisdiction to try and entertain the matter upto Rs.20,00,000/-, hence, this Commission has pecuniary jurisdiction to try and decide the present complainant. In this regard, we also reply upon the case titled as M/s PyarideviChabiraj’s case (supra)in which Hon’ble National Commission has held that for determining the pecuniary jurisdiction of the District Commission, State Commission or National Commission the value of the goods or services paid as consideration alone has to be taken and not the value of the goods or services purchased/taken. Therefore, we are of the view that the provision of Section 58 (1)(a)(i) of the Act of 2019 are very clear and does not call for any two interpretations.

In the said case the value of consideration paid by the complainant is only Rs.4,43,562/-(Rupees four lac forty three thousand five hundred and sixty two only) which is not above Rs.10,00,000/-(Rupees Ten crore), the National Commission has no jurisdiction to entertain the present complaint and it is accordingly dismissed as not maintainable.

13.           In view of above referred citation, facts and circumstances of the complaint, this Commission has pecuniary jurisdiction to entertain and try the present complaint. Thus, we found no substance in the contention of the learned counsel of the OPs.

14.           The next question for consideration before us, is that, whether the complainants fall under the definition of ‘consumer’ as per Consumer Protection Act, or not.

15.           The OPs have taken a plea that the complainants had purchased the aforesaid shop/unit in order to earn profit from their income, therefore, they do not come under the definition of “consumer” as per Consumer Protection Act, 1986 (now after amendment Consumer Protection Act, 2019). The onus to prove this fact was lie upon the OPs, but OPs failed to prove this fact by leading any cogent and convincing evidence. The complainants have categorically stated in their complaint as well in their affidavits Ex.CW1/A of Smt.Reena Aggarwal and Ex.CW1/B of Smt.Pooja Garg, that the yhave purchased the said shop for earning of their livelihood. In this regard, we place reliance on the judgment titled as Laxmi Engineering Works’s case (supra) wherein Hon’ble Supreme Court of India has held that a person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood, by means of self employment-Is within the definition of the Expression ‘consumer’-Whether the purpose for which a person has bought goods is a ‘commercial purpose’ within the meaning of definition of expression ‘consumer’ in Section 2(d) of the Act- Is always a question of fact-To be decided in the facts and circumstances of each case. We also placed reliance on the case titled as Anand Kumar Versus Secretary Cum Executive Officer in First Appeal no.1186 of 2014, date of decision 05.05.2016 wherein Hon’ble State Commission, Haryana, Panchkula has held that merely by purchasing a commercial shop by the complainant would not ipso facto put him out of the purview of ‘consumer’ as defined in Section 2(i)(d) of the Act-By leading evidence he has to prove that he purchased the shop for earning his livelihood by means of self employment and that stage had not come before the District Forum because the complaint was dismissed at preliminary stage-Appeal accepted-Order passed by District Forum set aside-case remitted to District Forum to decide it afresh.

16.           In the present case complainants have categorically mentioned in their complaint that they have purchased the shop in question for earning their livelihood. Thus, we found no substance in the contention of learned counsel of the OPs.

17.           The next question for consideration before us is that whether the present complaint is maintainable before this Commission or not as there is an arbitration clause in the allotment letter?

18.           As per clause 53 of the allotment letter Ex.C2, all the disputes arising out or touching upon or in relation to the terms of the application shall be settled amicably by mutual discussion failing which same shall be settled through an arbitration.  In this regard, we are of the considered view that if for the sake of argument it may be considered that in view of clause 53 of the allotment letter which provides for arbitration in case of dispute  between the OPs and the complainants, in that case also this Commission has jurisdiction to try and entertain the present complaint, as it is a settled proposition of law, that complaint under Consumer Protection Act, being an additional remedy, despite there being an arbitration agreement, the proceedings before Consumer Commission have to go on. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. In this regard, we place reliance on the case titled “M/s Emaar MGF Land Limited Versus Aftab Singh, review petition (c) Nos.2629-2630 of 2018 (SC), wherein Hon’ble Supreme Court of India held in para no.55 as under:-

“We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.”

 

Further, similar view was taken by Hon’ble National Commission in case titled as Sanjay Gopinath Versus M/s IREO Grace Realitech Pvt. Ltd. (bunch of the cases) decided on 31.08.2021 wherein Hon’ble National Commission while placing reliance on the judgment of Hon’ble Supreme Court of India titled as M/s Emaar MGF Land Limited Versus Aftab Singh-I (2019) CPJ 5 (SC) has held that an Arbitration clause in the Agreement does not bar the jurisdiction of Consumer Fora to entertain the complaint. Hence, the objection raised by the learned counsel for the opposite party that the clause of Arbitration bars this commission from entertaining the complaints is unsustainable.

19.           Hence, keeping in view the law laid down in the above judgments and facts and circumstances of the case, the present complaint is maintainable before this Commission. Hence, the plea taken by the OPs has no force.

20.           The next question for consideration before us is that whether the complainants are entitled for refund of deposited amount or not?

21.           Admittedly, the complainants had deposited all the payments as per schedule within time. The remaining 10% payment will be made at the time of delivering of physical possession of the shop in question. As per the version of the complainants, the possession of the shop in question was to be delivered within one year i.e. in August, 2014. It is evident from Ex.O2, letter of offer of possession that possession of the shop in question was offered on 01.09.2016. Complainants deposited Rs.1795626/- which is more than 90% of the total amount upto July, 2014 but as per allotment letter, the possession of the unit in question was to be delivered within reasonable time. OPs offered possession letter on 01.09.2016 and shop in question was booked on 15.01.2013 i.e. after expiry of more than 3¾ years, which is not justifiable in the eyes of law. Reasonable time does not mean create sufferings for other party. It is a quite long time for persons seeking their source of livelihood. This clause is one sided and OPs cannot compel the complainants to take the possession after delay of 3¾ years. In this regard, we place reliance on the case titled as Pioneer Urban Land & Infrastructure Ltd. Versus GovindanRaghavan in civil appeal no.12238 of 2018 and Pioneer Urban Land & Infrastructure Ltd. Versus GeetuGidwaniVerma&Anr. in Civil appeal no.1677 of 2019 decided on 02.04.2019 Hon’ble Supreme Court held that the clauses of the Agreement were one-sided. In the present case also, the clauses of the shop/unit buyer’s agreement are one sided and only in favour of the OPs as without considering the request of complainants for refunding the deposited amount,  forfeited the  said amount.

22.           As per the broucher Ex.C1, the OPs were promised to develop the area and provide facilities like banks, hospital, ATMs, fashion stores, chemist shops, restaurants, jewellery stores, general stores, etc. but the OPs failed to prove on record by leading any cogent and convincing evidence that whether they have provided all the above facilities in the said area or not. Meaning thereby, the OPs had not provided the said facilities as promised by them and the same were showed in their broacher only in order to sell the shops by showing the shining dream to the general public.

23.           Learned counsel for the OPs has also taken the plea that complainants are resided at Safidon, District Jind and it is not possible for the complainants to run the shop from Safidon which is far away from Karnal, but we found no substance in the contention of the learned counsel of the OPs. It will be the sweet will of the complainants that how they will run the shop there. Moreover, the distance between the Safidon and Karnal is only 62kms and complainants can easily run the shop from Safidon to Karnal.

24.           The case laws relied upon by OPs, are not applicable to the facts of the present complaint.

25.           It is evident from Ex.C6 i.e. CM Window Action Taken Report, dated 17.07.2017, complainants moved an application to CM window Karnal against the OPs in which representative of OP no.1 Gaurav Pundir suffered a statement that OPs will refund the deposited amount after deduction of 20% amount. Meaning, thereby, OPs were ready to refund the amount but nothing has been refunded by the OPs to the complainants till date. Hence, an adverse inference drawn against the OPs. The OPs have also taken a plea that the representative namely Gaurav Pundir had never authorized by the OPs to suffer any statement, however, we found no substance in this plea taken by the OPs as the OPs have failed to prove on record this fact by leading any cogent and convincing evidence.

26.           It is an admitted fact that complainants had deposited Rs.17,95,626/- with the OPs and OPs has failed to handover the possession of the said shop in question within stipulated period and also failed to provide the promised facilities as per broucher Ex.C2. Hence, the act of the OPs amounts to deficiency in service and unfair trade practice. Thus, the complainants are entitled for refunding of the said amount alongwith interest, compensation and litigation expenses, etc.

27.           In view of the above discussion, we allow the present complaint and direct the OPs to refund Rs.17,95,626/- (Rs. seventeen lacs ninety five thousand six hundred twenty six only) to the complainants with interest @ 9% per annum from the date of its deposit till the date of realization. We further direct the OPs to pay Rs.25,000/- as compensation for rendering the deficient services and Rs.11,000/- as litigation expenses. This order shall be complied with within 45 days from the date of receipt of copy of this order failing which Rs.17,95,626/-will carry interest @ 12% per annum till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:19.10.2021

                                                                       

                                                                  President,

                                                       District Consumer Disputes

                                                Redressal Commission, Karnal.

 

 

 

             (VineetKaushik)

                   Member