Chandigarh

DF-II

CC/494/2018

Ishwardeep Singh - Complainant(s)

Versus

Chandigarh Overseas Private Limited - Opp.Party(s)

Ravinder Pal Singh Adv. & Dharindra Shukla Adv.

05 Jun 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	494/2018
Date of Institution	:	31.08.2018
Date of Decision	:	05.06.2020

 

                                       

                       

 

Ishwardeep Singh s/o Sh.Karnail Singh Virdi r/o Flat No.53-A, DDA SFS Flats (MIG), Motia Khan (Rani Jhansi Complex), New Delhi-110055.

                                ...  Complainant.

Versus

1.     Chandigarh Overseas Private Limited, SCO No.196-197, Top Floor, Sector 34-A, Chandigarh-160022 through its Managing Director.

        Now at Fashion Technology Park, Next to BSF Housing Complex, Sector 90, Mohali.

2.     Greenfield Sites Management Private Ltd.,  Greenfield Sites Management Private Ltd., SCO No.196-197, Top Floor, Sector 34-A, Chandigarh-160022 through its Managing Director.

        Now at H.No.1074, Sector 4, Panchkula Haryana.

…. Opposite Parties.

BEFORE:

              SHRI RAJAN DEWAN, PRESIDENT

SMT.PRITI MALHOTRA, MEMBER

SHRI B.M.SHARMA, MEMBER

 

Argued by

Sh.Ravinder Pal, Adv. for the complainant

                Sh.Tusar Gupta, Adv. for OP No.1

                OP No.2 exparte.

 

PER RAJAN DEWAN, PRESIDENT

1.         In brief, the facts of the case, as alleged by the complainant, are that OP No.1 came up with a project in the year 2006 under the name and style of “Fashion Technology Park” in Sector 90, SAS Nagar, Mohali (Punjab) and OP No.2 is the site management company belonging to the same group and both are jointly executing the project from common office with segregation of functions.  It has further been averred that with an intention to  shift in or around Chandigarh and to establish his own office by opening an IT Consultancy and Software Developing Service  for the fashion industry enabling it to advertise and sell the products online, he had decided to purchase the unit of the OPs to earn the livelihood by way of self-employment.  He applied for a unit  in the OPs’ project on 08.06.2008  and submitted an application form (Annexure C-4) and paid a sum of Rs.50000/- through cheque against receipt (Annexure C-5). The cost of the unit was agreed to be Rs.6.50 lacs. He paid the remaining amount of Rs.5.50 lakhs to the OPs through different cheques which were acknowledged vide different receipts (Annexure C-6 to C-10).   In all, he paid a sum of Rs.6 lakhs to OP No.1. Vide allotment letter dated 08.01.2009 (Annexure C-11), the complainant was allotted a unit measuring 100 sq. ft. bearing Unit No.3 on 4^th Floor in Tower A-2 in the Industrial Knowledge, Fashion Technology Park at Sector 90, Mohali (Punjab). Subsequently, the Developer Buyer Agreement  (Annexure C-12) was executed between the complainant and OP No.1  in the year 2009, however, date on the complainant’s copy was not mentioned.    It was specifically mentioned under Clause 32 of the agreement that if the possession of the unit was not delivered within a period of 30 months from the date of allotment (08.01.2009), a compensation equal to Rs.50/- per sq. ft. per month was to be paid to the complainant by OP No.1.  However, after a delay of more than 7 years, the OP No.1 had failed to pay the said compensation to the complainant.  It has further been averred that OP No.2 also offered at that point of time that in the event of delay in offering possession, the complainant could get into an agreement of lease whereby if there was a delay on the part of OP No.1 in handing over the possession of the unit, the complainant has right to lease the same for security of his fund and as such the complainant entered into an agreement with OP No.2 just to have additional security of his funds which were deposited with OP No.1 with an hope that he will get possession of the same one day.  It has further been averred that the OPs have failed to construct the project and hand over the possession of the unit to the complainant as agreed. 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.         Opposite Party No.1, in its written statement while admitting the factual matrix of the case took preliminary objections that the unit being a commercial/industrial area could not have been used for personal consumption of a residential purposes and the same was booked for earning profits by exercising the buy-back option and penalty @ Rs.50/- per sq. foot and as such the complainant is not consumer as defined under the Consumer Protection Act, 1986; that the complicated questions of law and facts are involved which require detailed evidence and cross examination and that the complaint is highly time barred. It has further been pleaded that the owner /developer i.e. Chandigarh Overseas Pvt. Ltd., got the eligibility certificate on 18.01.2005 by the Government of Punjab, Department of Industries and Commerce and  the building layout plan was sanctioned by the Chief Town Planner, Govt. of Punjab on 13.04.2006.   It has further been pleaded that due to certain reasons which were beyond the control of the owner, the construction work was stopped. It has further been pleaded that the delay was caused due to the reason that the project of OP No.1 was under dispute with the work contractors and in the meanwhile the real estate business suffered a global recession.   It has further been pleaded that the GMADA vide its letter dated 31.10.2012 informed the OP-Company that the application for issuance of NOC for the sanction of revised plan was to be considered only after the OP-Company depositing an amount of Rs.2,69,73,475/- as license fee and Rs.9,04,316/- as social infrastructure fund which was completely a new demand.  It has further been pleaded that project of OP No.1 was stayed by the Hon'ble High Court vide its order dated 14.03.2014 passed in CWP No.4856/2014 and as such OP No.1 was not in a position to start the construction work. It has further been pleaded that  the complaint is entitled to refund of his money which it is ready and willing to deposit 6% of interest to  the complainant and similarly situated persons.  Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint. 
3.         The complainant filed rejoinder to the written reply of OP No.1 controverting its stand and reiterating his own.
4.         OP No.2 did not appear despite due service through registered post and as such it was proceeded exparte vide order dated 11.10.2018.
5.       We have heard the ld. Counsel for the contesting parties and have gone through the documents on record carefully.
6.          OP No.1 has contended that the complainant is not consumer as he purchased the unit for earning profit and not for earning livelihood. However, the ld. Counsel for the complainant has drawn our attention to para 3 of the complaint where it has been mentioned as under :-

“3.   That the complainant with an intention to shift in or around Chandigarh and to establish his own office by opening an IT Consultancy and Software Developing Service for the fashion industry enabling it to advertise and sell their products online, had decided to purchase the said unit. The complainant is an IT Professional and to open the said consultancy to earn his livelihood by means of self employment, he decided to purchase the said unit in the OPs’ project at Mohali in the year 2008.

                   The complainant has also filed his duly sworn affidavit in support of the same.  Hence the complainant is Consumer within the meaning and scope of Section 2(1)(d) of the Act as he had purchased the unit in question to earn his  livelihood.

7.         It was next contended by OP No.1 that the complaint is liable to be dismissed being barred by time but we find no substance/force in this submission of the counsel for OP No.1 because neither the possession of the unit in question has been offered to the complainant nor the deposited amount has been refunded to him till date and, therefore, the cause of action is recurring one. Hence, the complaint filed by the complainant is well within limitation.
8.         The next submission of OP No.1 is that the possession of the said design studio could not be handed over to the complainant because the project was hit by force majeure circumstances for the reasons which were beyond the control of OP No.1. It was stated in the written statement that the construction of the project was stayed by the learned Additional District Judge, Chandigarh under Section 9 of the Arbitration and Conciliation Act as it is evident from the copy final order dated 23.8.2014. It was further stated that OP No.1 was not able to raise construction as status quo was ordered by the Learned Additional District Judge. It was strenuously contended by OP No.1 that as per Clause 28 of the agreement, the sale of unit was subject to force majeure clause.  It was further stated that the delay was also caused due to the reason that the project of OP No.1 was under dispute with the works contractors since the inception of the project.
9.        However, it is pertinent to mention here that  OP No.1 did not send any such letter to the complainant that there were force majeure circumstances because of which the project was suffering from delay.  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 second week of September, 2006 which had already expired in the year 2009. 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. In view of above, no benefit can be given to the appellant, for the said fact.
10.         The next submission of OP No.1 is that the        delay was also caused due to the reason that the project was under dispute with work contractors.  However, we do not  find any substance in this submission of OP No.1 in view       of the judgment passed by the Hon'ble National     Commission in case titled as M/s Utopia Projects Pvt. Ltd. Vs Shahin Bi Mulla, First Appeal No. 1227 of 2014, decided on 01.04.2015.  In the aforesaid judgment, under similar circumstances, the Hon’ble National Commission, while rejecting the plea of the builder held as under:-

“The reason given by the Developer for the delay is ‘Disputes with the Contractor’.  Viewed from any angle, such disputes cannot be construed to be within the ambit of ‘force majure conditions’.  Therefore, the Appellant cannot take umbrage under this clause.”

                Thus, the plea of OP No.1 that the project was under dispute with the work contractors since the inception of the project cannot be accepted and the same is rejected accordingly.

11.       In the case of Shri Suman Nandi and another Vs. M/s Unitech Limited and another, Consumer Complaint No.277 of 2013, decided on 17.12.2015, the National Commission, observed that instead of ordering payment of penalty amount for delayed possession, it is desirable to grant interest on the deposited amount, to secure interest of the consumers.
12.           In view of the above discussion, the present complaint deserves to be partly allowed and the same is accordingly allowed. OP No.1 is directed as under ;-
    1. To refund the amount of Rs.6,00,000/- to the complainant with interest @ 9% p.a. from the respective date(s) of deposits till its realization. 
    2. To pay Rs.50,000/- to the complainant as compensation for mental agony and physical harassment.
    3. To pay costs of litigation of Rs.11,000/- to the complainant.   
13.             This order be complied with by OP No.1, within 30 days from the date of receipt of its certified copy, failing which the amount at Sr. No. (ii) above shall also carry interest  @ 9 % per annum from the date of this order till actual payment, besides compliance of other directions.
14.         The complaint qua OP No.2 stands dismissed.
15.        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

05.06.2020

 

Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

Sd/-

(PRITI MALHOTRA)

MEMBER

 

Sd/-

(B.M.SHARMA)

MEMBER