Chandigarh

DF-II

CC/648/2015

Hargurjit Singh - Complainant(s)

Versus

Chandigarh Overseas Private Limited - Opp.Party(s)

Vishal Gupta Adv., Amit Gupta Adv. & Parminder Kaur Adv.

16 May 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	648 OF 2015
Date of Institution	:	10.11.2015
Date of Decision	:	16.5.2017

 

                                               

                                                         

1.      Hargurjit Singh s/o Sh. Sohan singh Parmar R/o H. No.522, Pancham Enclave Sector 48-A, Chandigarh, U.T..

 

2.      Mrs. Raman Parmar w/o Sh. Hargujit Singh R/o H. No.522, Pancham Enclave Sector 48-A, Chandigarh, U.T..

 

                                      ...  Complainants.

Versus

1.      Chandigarh Overseas Private Limited, SCO 249, Secvtor 44-C, Chandigarh through its Chairman, Hardayal Singh Mann.

2.      Chandigarh Overseas Private Limited SCO 249, Sector 44-C, Chandigarh through its  Managing Director, Sumesh Chawla.

3.      Chandigarh Overseas Private Limited SCO 249, Sector 44-C, Chandigarh through its  Dy. General Manager, Sandeep Bhasker.

4.      Chandigarh Overseas Private Limited SCO 249, Sector 44-C, Chandigarh through Manager.

5.      M/s Greenfield Sites Management Pvt. Ltd. Fashion Technology Park, Sector 90, Next to BSF Housing Complex Mohali, through its Chairman/Managing Director.

6.      M/s Greenfield Sites Management Pvt. Ltd. Fashion Technology Park, Sector 90, Next to BSF Housing Complex Mohali, through its Sales and Marketing Executive, Sukhchain Singh.

7.      M/s Greenfield Sites Management Pvt. Ltd. Fashion Technology Park, Sector 90, Next to BSF Housing Complex Mohali, through its Manager. 

 …. Opposite Parties.

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT            SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

 

 

 

For complainant(s)      :     Parminder Singh, Adv.  

For OPs No.1,2, and5    :     Sh. Abhinav Kansal, Adv.

 

For OPs. No.3,4,6 and 7 :     Exparte    

 

 

 

PER PRITI MALHOTRA, MEMBER

 

 

          In brief, the case of the complainant is that in the year 2006, OPs came up with a project in the name and style of “Fashion Technology Park” in Sector 90, Mohali. The OPs widely publicized their offer of selling units in the Industrial Knowledge (Fashion Technology Park), Sector 90, Mohali. The complainant booked an industrial plot  measuring 125 Sq. ft. in the project of the OPs for the purpose of earning his livelihood. An application alongwith cheque dated 14.08.2006 for Rs.1,25,000/- was submitted with the OPs.  Subsequently, the complainant was  allotted the studio measuring 125 sq. ft. bearing studio No.2, 6^th  Floor in Block A-2..  The complainant made payment   as per the Schedule.  The OPs assured the complainant that the possession of the plot would be delivered by Mid-2009 but on gathering information by the complainant it came forth that no vital progress was made to begin the work as such the work of construction was delayed.  The OPs vide letter dated 22.6.2009 offered buy back option.  The complainant desired to avail the buy back offer and intimated the same to the OPs vide email dated 2.12.2009. It is alleged despite various communications, personal visit and legal notice dated 19.11.2014 the OPs did not release the amounts of compensation and buy back.   Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint. 

2.                Notice of the complaint was sent to Opposite Parties seeking their version of the case. However, since nobody appeared on behalf of Opposite Parties No.3,4,6, and 7 despite service through publication, therefore, they were proceeded ex-parte.        

3.               The Opposite Parties  No.1, 2 and 5 in its  written statement while admitting the factual matrix of the case pleaded that  complainant is not a consumer as the plot in question purchased by the complainant could not be used for any other purpose than for setting up establishing industrial space/warehouse related to design, fashion and life style industry.  It is also pleaded that the complaint is barred by time as the cause of action accrued to the complainant in 2009. It has been stated that the complainant executed back to back lease deed dated 6.1.2007 in favour of OP-5 and agreed to accept the lease money. The complainant has knowingly concealed this fact from this Forum.  It has been averred that the Complainant had not purchased the unit in question for livelihood and his sole purpose was to invest the spare money and enjoy lease rentals. It is pleaded that the complainant is a investor and invested in two units just to earn return on the same. It is pleaded that due to force majeure circumstances the possession could not be handed over to the complainant.  It has been averred that there was no intentional delay on the part of the OPs and the construction of the project was stayed from 26.4.2011 to 23.8.2014 by the learned Additional District Judge, Chandigarh.  Thus the delay was beyond the control of the OPs.. It is pleaded that there is no terms of buy back between the parties and no such contract for buy back was ever signed by the parties. As such there is no question of awarding buy back to the complainants.  Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint. 

4.                               The complainant has filed his rejoinder reiterating the allegations leveled in his complaint and rebutted the pleading of the Opposite Parties No. 1,2  and 5 taken by them in their written statement.

5.                     Contesting Parties led evidence in support of their contentions.

6.                               We have heard the learned counsel for the contesting parties and have gone through the documents on record.

7.                               The Counsel for the OPs 1,2 and 5 took a plea in the written statement that the complaint is liable to be dismissed being barred by time but we find no force in this submission because neither the possession of the plot in question has been offered nor the buy-back amount has been paid to the complainant till date and, therefore, the cause of action is recurring one. Hence, the complaint filed by the complainant is well within limitation.

8.                     The ld. Counsel for the OPs 1,2 and 5 argued that the complainant is not covered under the definition of ‘consumer’ as he purchased the unit in question for earning profit and the same was not for earning livelihood.

9.                Defence taken by the OPs 1,2 and 5 that the complainant is not ‘consumer’ is rejected, for the reasons recorded hereinafter. The complainant has specifically pleaded in his complaint that he wanted to settle a business for earning his livelihood by way of self employment, agreed to purchase the unit in Design Studio in question.  The complainant has also pleaded that he is ‘consumer’  as per the provisions of the Consumer Protection Act as the said unit was purchased by him for earning his livelihood.  This assertion of the complainant is supported by his own affidavit.  The OPs 1,2 and 5 have not produced any such evidence that the complainant is property dealer dealing in the sale and purchase of real estate. The total area of the units purchased by the complainants from the OPs is only 125 sq. ft. which is for small investors.  Since the complainant wanted to settle a business for himself for earning his livelihood, it cannot be inferred that the said unit was purchased by him with the sole motive of earning profits. . In Arun Mandhana Vs. Chandigarh Overseas Pvt. Ltd. & Anr., Consumer Complaint No.19 of 2012 decided on 12.10.2012 and Ruchira V. Arora Vs. M/s Chandigarh Overseas Private Limited, First Appeal No.8 of 2013 decided on 1.3.2013, our own Hon’ble State Commission in somewhat similar circumstances in the complaints against the same very OPs held that the size of the studio was small and the sale price of the said studio was also not too high, therefore, it was established that the complainant never intended to run commercial activity in the studio on a large scale with a view to earn huge profits and he fell within the definition of ‘consumer.’

10.                 Contention of Counsel for the OPs 1,2 and 5 that the complainant is not ‘consumer’ also needs to be rejected, taking note of ratio of the judgment of the National Commission, titled as Kavita Ahuja Vs. Shipra Estate Limited and Jai Krishna Estate Developers Private Limited, Consumer Complaint No.137 of 2010, decided on 12.02.2015 when insimilar objection was raised, in that case. The National Commission while interpreting the provisions of Section 2 (1) (d) of the Act, held as under:-

“Going by the Dictionary meaning of the expression ‘Commerce’ as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged.  In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services.  It would ordinarily include activities such as manufacturing, trading or rendering services.  In the case of the 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 of 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.”

         

11.              The mere fact that the complainant executed a lease deed in favour of OP-5 simultaneously also does not lead to the inference that their intention was to earn rent. Annexure C-5 dated December 06, 2006 reveals that the Lease Agreement entered into by the complainant was not with free consent of the complainant rather he was under mandate to do so. The relevant extract of the letter is reproduced as under:-

“You are requested to kindly visit our office to anytime during the working hours (preferably with prior appointment) to execute the Lease Agreement as per the terms and conditions of Buyer Developer Agreement. Kindly bring along an Identity  Proof copy of the PAN card two photographs.”

 

12.   The fact remains that the possession of the unit has not been handed over to the complainant or the lessee till now, therefore, there cannot be any question of earning of rent by the complainant.

13.          The next submission of the Counsel for the OPs 1,2 and 5 is that the possession of the said design studio could not be handed over to the complainant as per schedule because the project was hit by force majeure circumstances for the reasons which were beyond the control of the OPs.. He has submitted that the construction of the project was stayed from 26.4.2011 to 23.8.2014 by the learned Additional District Judge, Chandigarh under Section 9 of the Arbitration and Conciliation Act as it is evident from the copy of the stay order dated 26.4.2011 and final order dated 23.8.2014.  He has submitted that the OPs were not able to raise construction as status quo was ordered by the learned Additional District Judge.. The said status quo order passed by the learned Additional District Judge is dated 26.4.2011 whereas the project was to be completed within 30 months from date of issuance of allotment letter in 2006 which had already expired in the year 2010. We are of the opinion that the said order passed beyond the time of delivery of the possession of the unit to the complainant would not affect the merits of the present case.  Further, the OPs have failed to show as to what steps they had taken in completion of the project prior to 26.4.2011 and after 23.8.2014. However, it is pertinent to mention here that the OPs did not send any such letter to the complainant that there were force majeure circumstances because of which the project was suffering from delay. No evidence has been brought on record by the OPs to justify their plea of force majeure circumstances.  Thus, the contention of the learned counsel for the OPs 1,2 and 5 that the project was delayed on account of the force majeure circumstances cannot be accepted.  There is definite evidence of deficiency in service on the part of OPs in not delivering the possession of the unit to the complainant as per schedule.

14.          The Counsel for the complainant has submitted that the complainant is entitled to Rs.7,50,000/-lacs as he opted for buy-back option. It is pleaded that the complainant sent several communications and reminders regarding payment of buy-back amount but to no avail.  The OPs have opposed this plea of the complainant. It is clear from Annexure C-9 that the complainant duly intimated the OPs that he is ready to exercise his buy back option for the units booked by him with OPs. Therefore,  the OPs sent letter dated 29.6.2010 to the complainant relevant extract whereof is as under:-

          “X x x x x x x x x

X x x x x x x x x

At this rate 125 Sq.ft. super area is being sold at Rs.8,25,000/- whereas the buy back amount is @Rs.7,50,000/- against your investment of Rs.5,00,000/-

          X x x x x x x x x

          X x x x x x x x x

You can either sell your unit at higher rates in next 3-4 months than your buy-back rates in open market and get the same transferred from our company or take the buy-back amount from us.”

 

                    From the above extract it is abundantly clear that the complainant had opted for buy back option  and he is entitled for the said amount.

              It is also apparent from the Annexure C-10 that the OPs had given compensation to the complainant for the period from 1.4.2010 to 30.6.2010 and further assured the complainant that he will keep receiving the agreed compensation regularly on quarterly basis till the actual date of possession/buy back payment is received by the complainant.   

 

15.          Thus, from the above facts and circumstances, we are of the view that the OPs are  liable to refund the buy-back amount to the complainant.   Our view is  supported with the judgment passed by our Hon’ble State Consumer Disputes Redressal Commission, U.T., Chandigarh in appeal No.257 of 2015 titled as M/s Chandigarh Overseas Pvt. Ltd. V. Anuradha Kalia decided alongwith other connected appeals on 16.8.2016.

16.          In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The opposite parties are directed as under ;-

(i)          to Pay the buy-back amount of Rs.7.50 lac to the complainant.

(ii)        To pay compensation of Rs.75,000/- for mental harassment and deficiency in service.

(iii)      to pay costs of litigation of Rs.10,000/- to the complainant.   

                   This order be complied with by the OPs, within 30 days from the date of receipt of its certified copy, failing which the amount at Sr. No. (i) to (ii) shall carry interest @12% per annum from the date of this order till actual payment besides payment of litigation costs.

              Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

16.5.2017

Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

 (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER