BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No. 65 of 2015
Date of institution: 13.02.2015
Date of Decision: 16.07.2015
Roshan Lal son of Labh Chand resident of House No.18, Bhagat Market, Gobind Nagar, Basti Guzan, Jalandhar City.
……..Complainant
Versus
1. BCL Homes Limited, Village Kishanpura, (Adjacent Sector 20 Panchkula) NAC Zirakpur, District Mohali, Punjab.
2. Shri R.D. Bhalla, Property Consultant, Sub Dealer through MD/Owner Shri Baldev Chand, SCO 236, Sector 20 Panchkula.
(Name of OP No.2 deleted from the array of the OPs vide order dated 20.02.2015).
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh, Member
Mrs. R.K. Aulakh, Member.
Present: Ms. Deepika, counsel for the complainant.
Shri Deep Singh, counsel for OP No.1.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:
(a) refund him Rs.6.20 lacs alongwith interest @ 18% per annum from the date of deposit till refund.
(b) pay him Rs.2,00,000/- for mental and physical harassment.
(c) pay him Rs.1,00,000/- each on account of deterrent and punitive damages.
(d) pay him Rs.25,000/- as costs of litigation.
The case of the complainant is that the OP No.1 floated a scheme/project for allotment of office/shops in its project named as ‘Chinar Business Centre’ and brochure Ex.C-1 was issued by the OP No.1. The complainant in order to start business at Zirakpur applied/booked for allotment of office/shop approximately 400 sq. ft. super area with the OP No.1 at an agreed price of Rs.31.00 lacs. As part of sale consideration the complainant paid Rs.6.2 lacs as booking amount to OP No.1 through OP No.2 by cheque dated 28.02.2012 for Rs.1.00 lacs and Rs.5,20,000/- was paid in cash on 13.02.2012 vide receipts dated 13.02.2012 Ex.C-2 and C-3. The remaining amount was to be paid at the time of possession of the shop. The receipt of amount of Rs.6.2 lacs was also confirmed by the OP No.1 vide letter dated 13.02.2012 Ex.C-4. The OP No.1 vide letter dated 29.07.2012 Ex.C-5 allotted shop No.159 1st Floor in its project to the complainant. The OP No.1 assured that the construction will take place soon and would be completed in one year and thereafter the possession of the shop would be given. However, even after lapse of six months period, there was no construction activity at the site. The complainant visited the OP No.1 but was not given satisfactory reply. Finally the complainant vide letter dated 31.12.2013 Ex.C-6 requested OP No.1 to refund the booking amount. On the asking of OP No.1 the complainant surrendered his original allotment letter on 15.07.2013. Till date the OP No.1 has not refunded the amount to the complainant. With these allegations, the complainant has filed the present complaint.
2. After admission of the complaint, notice was sent to the OPs. OP No.1 has pleaded that the complainant is not its consumer as the complaint has been filed for immoveable property for which the complainant is required to seek relief under section 31 of the Specific Relief Act. This Forum does not have the jurisdiction to try and decide the complaint. The complainant has no locus standi to file the complaint. The complainant has no cause of action and there is no deficiency in service on their part. The complaint is abuse of process of law. The complainant is not entitled to any compensation under Section 14 (1) (d) of the Act as he has failed to place any material on record to substantiate his claim. On merits, the OP No.1 has denied the averments of the complainant and sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-7.
4. Evidence of the OP consists of affidavit Baldev Chand, its Director Ex.OP-1/1.
5. We have heard learned counsel for the parties and have also gone through written arguments filed by them.
6. There are certain undisputed facts in the complaint. The complainant paid Rs.6,20,000/- on 13.02.2012 Ex.C-4 towards booking/registration amount and the complainant received allotment letter dated 29.07.2012 from the OP No.1 whereby Shop No.159, Ist Floor 400 sq. yard approximately was allotted to the complainant in Chinar Business Centre, Peer Muchalla, Zirakpur. The total cost of the said unit was Rs.31,00,000/-. Against this the complainant made total payment of Rs.6,20,000/-.
7. It is argued on behalf of the complainant that the complainant booked the said unit to start his own business for his livelihood but on account of inordinate delay in handing over the possession, the whole plan of the complainant has been shattered and, therefore, the complainant had to undergo not only huge financial loss but also suffered lot of mental pain and agony. As per allotment letter, there is no time frame given for offer of possession. However, after the allotment, the complainant has visited number of times to the OP No.1 to know the status of the property and when found no development on the area and the complainant lost hope and decided to take his money. Therefore, he finally made a request to the OP No.1 vide request letter dated 31.12.2013 Ex.C-6 seeking refund of the deposited amount. The official of OP No.1 has asked the complainant to surrender the original allotment letter and receive such payment made by him. The complainant following the instructions submitted the said document i.e. original allotment as well as receipt of payment but till date the refund of the deposited amount has not been made to him. As per the complainant despite his request for refund dated 31.12.2013 which has been duly received by the OP No.1, no refund has been made to him and even till date there is no development at the site as is shown by the complainant from the photograph Ex.C-7. As per the complainant the OP No.1’s reply on both the counts i.e. non refund of deposited as well as progress of the project as on today is silent.
8. On the other hand counsel for OP No.1 has raised the preliminary objection that the complainant does not fall within the purview of consumer under Section 2 (1) (d) of the Consumer Protection Act as he has booked the shop for commercial purpose.
9. Therefore, before proceeding on merits, it will be appropriate to examine the core issue whether the complainant is a consumer or not? Section 2 (1) (d) defines the word ‘consumer’. Explanation appended to Section 2 (1) (d) (ii) provides that for the purposes of this clause, ‘commercial purpose’ does not include use by a person of goods bought and used by him and services availed by him exclusively for purposes of earning his livelihood by means of self employment. The expression ‘commercial purpose’ has not been defined in the Act. In its common parlance commercial purpose is that purpose the objective of this is to make profit. ‘Commercial’ encompasses all business activities. In the present case the OP No.1 has failed to show that the shop in question has been booked by the complainant for further selling and making profit out of it. On the other hand the counsel for the complainant has submitted that the complainant has invested his hard earned money to purchase a unit for starting his own business to earn his livelihood but due to inordinate delay caused in completion of the project, has shattered his dreams and he has lost faith in the OP No.1 and, therefore, he sent dated 31.12.2013 for seeking refund of the deposited amount. As stated earlier the OP No.1 has failed to rebut the plea of the complainant i.e. booking of the shop to earn his livelihood. On the bald statement of commercial purpose is of no help to the OP No.1. Therefore, we are of the view that the complainant is a consumer within the meaning of the Act.
10. Now the question whether the complainant is entitled to refund of the deposited amount alongwith interest particularly when the OP No.1 has failed to show any reason for non refund of the deposited amount once the original allotment letter and the original receipt has been surrendered by the complainant and duly received and acknowledged by OP No.1. The answer to this question is in affirmative. The OP No.1 has even failed to show any development and progress in the project whereas the complainant has proved the tardy/no progress at the site through photographs Ex.C-7/A to C-/F. Once the OP No.1 has failed to show the development and progress of the site in question and the complainant cannot be compelled to wait for indefinite period to seek the possession of the property in question. The counsel for the complainant has relied upon thje decision of the Hon’ble National Commission Parambir Singh vs. PH House Private Ltd. CPJ (III) 2011 465 wherein it has been held that a consumer cannot be made to wait indefinitely at the whims and fancies of the builder especially when false representation has been made regarding completion. In this case, there is no whisper of development or completion by OP No.1. Under the circumstances, the complainant is entitled to seek the refund of the deposited amount alongwith interest and non refund of the same by the OP No.1 till date, despite having received the request for refund dated 31.12.2013 is an act of deficiency in service and unfair trade writ large on the part of the OP No.1. Therefore, it would be in the large interest of the justice that the amount deposited by the complainant is refunded back with adequate rate of interest and the complainant should also be adequate compensated for harassment, mental agony and pain. The complaint deserves to be allowed and the complainant deserves to be compensated. Hence the complaint is allowed against OP No.1 and there is no order against OP No.2 as the complainant has already given him up.
11. The complaint, therefore, is allowed with the following directions to the OP No.1:
(a) to refund an amount of Rs.6,20,000/- (Rs. Six lacs twenty thousand only) with interest thereon @ 12% per annum from the date of deposit till the date of actual payment.
(b) to pay a sum of Rs.50,000/- (Rs. Fifty thousand only) as compensation for mental pain, agony and harassment.
(c) to pay a sum of Rs.10,000/- (Rs. Ten thousand only) as costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
July 16, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh)
Member
(Mrs. R.K. Aulakh)
Member
