Punjab

SAS Nagar Mohali

CC/27/2015

Tejinder Pal Singh Walia - Complainant(s)

Versus

Chandigarh Overseas Pvt. Ltd. - Opp.Party(s)

Manjt Singh

24 Aug 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

 

                                  Consumer Complaint No. 27 of 2015

                                 Date of institution:         14.01.2015

                                                  Date of Decision:           24.08.2015

 

Tejinder Pal Singh Walia resident of Kothi No.175, Phase-2, SAS Nagar (Mohali) Punjab,  nominee being the only son of late Mrs. Kulwant Kaur Walia wife of S. Surjit Singh Walia.

    ……..Complainant

Versus

 

1.     Chandigarh Overseas Pvt. Ltd., Industrial Knowledge (Fashion Technology Park), Sector 90, SAS Nagar (Mohali) (Punjab) through Mr. Akash Arora, Vice President (Finance)

        2^nd Address:

SCO No.196-197, Top Floor, Sector 34-A, Chandigarh 160022.

2.     Green Field Sites Management Pvt. Ltd., Industrial Knowledge (Fashion Technology Park), Sector 90, SAS Nagar (Mohali) (Punjab) through Mr. Parwinder Singh, Vice President (Marketing)

        2^nd Address:

SCO No.196-197, Top Floor, Sector 34-A, Chandigarh 160022.

………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

ARGUMENTS HEARD AND DECIDED BY THE CORAM

Shri Amrinder Singh Sidhu, Presiding Member

Mrs. R.K. Aulakh, Member.

 

Present:    Shri Manjit Singh, counsel for the complainant.

                Shri Veer Singh, counsel for the OPs.

 

(Amrinder Singh Sidhu,  Presiding Member)

 

ORDER

                The complainant has pleaded in the complaint that his mother applied to the OP No.1 on 04.01.2008 for allotment of super built up area of 100 sq. ft. at Floor No.4, Block A-2, in Techno Knowledge Park for Fashion Technology, named, Industrial Knowledge (Fashion Technology) Park  in Sector 90 SAS Nagar being promoted and set up by OP No.1. The mother of the complainant also paid a sum of Rs.50,000/-  as earnest money through draft dated 04.01.2008.  The total  cost of the unit was Rs.6,50,000/- and payment of the same was made after execution of the Developer-Buyer Agreement on 29.02.2008 by the mother of the complainant on 04.01.2008 to 02.06.2008.  The balance payment of Rs.50,000/- was to be paid at the time of possession.  Mother of the complainant expired on 21.10.2010 and a request was made by the complainant on 04.02.2011 for transfer of ownership in his name by enclosing with the application all the documents and affidavit in support of this alongwith death certificate dated 21.10.2010. No transfer of title was acknowledged by the OPs but it was learnt by the complainant that the same was transferred in the name of the Ops in the records. A lease agreement  was   executed  on  29.02.2008   by  OP No. 2   to  provide

lease transaction management facilities to the investors in the project.  As per the agreements the project was to be completed by March, 2009 and the possession was to be given to the allottess. As per Clause 44 of the Developer Buyer Agreement, it was agreed that after March 2009 onwards, the OPs were liable to make payment @ Rs.50/- per sq. ft. per month on account of non construction of the unit and handing over the possession to the complainant.  However, neither the possession has been given to the complainant nor the penalty  as per Clause-44 has been paid to the complainant and also interest on Rs.6.00 lacs since 2008 has not been given to the complainant. Lease facilities have also not been provided. The complainant sent a legal notice dated 23.12.2013 to the OPs  but no reply was received from the OPs.

                Lastly the complainant prayed for issuance of following directions to the OPs:

1. to handover the possession of share in site to the complainant.

                AND/OR

To refund him the amount of Rs.6.00 lacs with interest and penalty/damages as well as lease money as envisaged in agreement dated 29.02.2008.

(b)    to pay him compensation for mental harassment and agony.

(c)    to pay him costs of litigation.

 

2.             After the service of notice, the Ops appeared through counsel before this Forum and filed written reply to the complaint taking preliminary objections that this the relief claimed by the complainant is barred under law of limitation; the complainant does not fall within the definition of Consumer as defined under the Consumer Protection Act; this Forum does not have jurisdiction to entertain the complaint as the matter in dispute is of civil nature.    On merits, it is denied that the complainant ever applied for transfer of the property in question in his name. The complainant can only file the complaint regarding the property once it is transferred in his own name.  The unit is ready for possession and the complainant can take the same after making the remaining dues and completing all the formalities. No legal notice was served upon the OPs by the complainant. The complainant is not entitled for any money. Lastly the OPs have prayed for dismissal of the complaint with costs.

3.             To succeed in the complaint, the complainant proved on record affidavit Exb.CW-1/1 and tendered in evidence documents Exb.C-1 to C-10.

4.             Evidence of the OPs consists of affidavit of Gurmit Singh and Jaspal Singh their authorised signatories Exb.OP-1/1 and Exb.OP-2/1 and copies of documents Exb.OP-1 to OP-4.

 5.            We have heard learned counsel for the parties and we have also gone through written arguments filed by them.

6.             OP No.1 namely Chandigarh Overseas Pvt. Ltd., Industrial Knowledge (Fashion Technology Park), Sector 90, SAS Nagar (Mohali) (Punjab) through Mr. Akash Arora, Vice President (Finance) took preliminary objections as well as objection on merits that complainant is not a consumer . The OP submitted that it is an admitted fact that the impugned project is a commercial/industrial project. As per Section 2 (d) of the Consumer Protection Act, 1986, a person who avails services for commercial purpose is not a consumer within the definition under the Act. However, as per Explaination  to Section 2(d), a person who avails commercial services exclusively to earn his livelihood by means of self employment, is excluded from the restriction.

7.             The impugned project of the OP is “Fashion Technology Park”. The approval for the said project was granted vide Eligibility Certificate No. CC/JDP/COPL/299 dated 18.01.2015 under clause 10.4 of Industrial Policy, 2003. The opening para of Eligibility Certificate dated 18.01.2015 clearly stipulates that the project which is approved as a “Techno Knowledge Park For Fashion Technology”. The said, project/its part cannot be used for any other purpose than Fashion Technology as per the mandate of the project approval.

8.             This fact is also proved from the Clause 30 of the Agreement that the Units purchased by the complainant cannot be used for any other purpose than for setting up establishing industrial space/warehouse related to Design, fashion and life style industry. The dame has to be offered by Op No.2 on lease rentals, who after combining complainant’s unit as well units of other allottees will establish a design studio.

9.             In pursuance to this, admittedly, the complainant executed the Back to Back lease deed dated 29.02.2008( already annexed with the complaint as Ex C-9) ( on the same day of buyer developer agreement)in favour of OP No.2 and agreed to accept the lease money. Even the fact of lease is also recorded in para 5 of the Buyer-Developer Agreement dated 29.02.2008 which is Ex C-2. This shows that the complainant’s intention is to use the impugned premises for commercial purpose.

10.           Relevant para no. 1.1 of the Back to Back lease deed dated 29.02.2007 ( Ex  C-9) is reproduced as under:-

           “1   Scope of work

  1.1 The Lessee shall have the full authority to either use premises for their  own purpose  or sublet the said unit(s) for the design, fashion and lifestyle and related industry only, to one or more persons, companies , firms , association, societies etc only on lease rentals or leave and licence basis as it deems fit”

Thus, from the day of Agreement, it was clear that the complainant was to use the property for commercial purpose.

11.          So in view of the above stated position it can safely be held that it is for commercial purpose because the complainant has nowhere in his complaint stated  that it will be used  by him for earning his livelihood by way of self employment. Therefore, it is held that complainant is not a consumer.

12          In view of above discussion, the complainant has failed to prove that he is a consumer and hence it is dismissed. 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.                           

August 24, 2015.         

 

                                                       

(Amrinder Singh Sidhu)

Presiding Member

 

 

(Mrs. R.K. Aulakh)

                                           Member