DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.332 of 2017
Date of institution: 05.05.2017 Date of decision : 01.08.2018
Harjot Singh Narang son of Gurcharan Singh Narang, age 24 years, resident of House No.299, Sector 59, SAS Nagar (Mohali), Punjab.
…….Complainant
Vs
1. Greater Mohali Area Development Authority, through Chief Administrator, GMADA, PUDA Bhawan, Sector 62, SAS Nagar (Mohali).
2. Greater Mohali Area Development Authority, through
Estate Officer, GMADA, PUDA Bhawan, Sector 62, SAS Nagar (Mohali).
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Shri Pawandeep Singh, counsel for complainant.
Shri Anuj Kohli, counsel for the OPs.
Order by :- Shri G.K. Dhir, President.
Order
Complaint under section 12 of Consumer Protection Act filed by complainant by claiming that in pursuance of advertisement issued by OPs, he applied for built up commercial booth in Sector 78, SAS Nagar (Mohali) for the purpose of earning livelihood by way of self employment. Complainant completed his education just before applying for this booth because he was having no other commercial property in his name. Sealed bids were invited for allotment of 700 built up booths in Mohali by OPs. Application form alongwith demand draft of amount of Rs.1.00 lakh of date 26.12.2011 was submitted by complainant with OPs for paying the said amount as earnest amount. Thereafter on 09.01.2012 built up booth No.65 in Sector 78 on ground floor at Mohali was allotted to complainant. Bid amount was Rs.13,71,000/-. As per requirement of application brochure, complainant deposited 75% of the bid price of the booth in State Bank of India. Sum of Rs.9,30,000/- was deposited on 12.04.2012. After much persuasion, allotment letter vide Memo No.1576 dated 17.01.2013 was issued in favour of complainant on the condition that remaining 25% of the total bid price will be payable before handing over of possession. Possession was to be handed over within a period of one year from the date of allotment. As per Clause-IV of allotment letter, in case possession not handed over within 12 months from the date of allotment, then OPs to pay interest @ 8% per annum for the period of delay. Complainant received letter dated 07.05.2014 from Accounts Officer of GMADA, where through he was called upon to deposit the service tax @ 3.09% of the bid price. In pursuance of that demand notice, amount of Rs.42,364/- through demand draft dated 06.06.2014 was deposited. Thereafter complainant kept on waiting for possession and even addressed many letters, but to no effect. Representation dated 01.07.2015 was submitted with OP No.2 for seeking information as well as redressal of grievance qua delivery of possession. Amount of Rs.3,41,000/- was deposited by complainant with OPs on 17.07.2015, being 25% of the bid price amount. Thereafter letter dated 10.11.2015 in reply was received from OPs by complainant, vide which complainant was called upon to appear in the office of OPs and receive possession certificate. Consequently complainant appeared in the office of OPs on 01.12.2015, but OPs expressed inability to handover the possession certificate on account of technical difficulties. Complainant was required to visit after one month. Complainant submitted another application with OPs for issuance of No Dues Certificate after getting all the documents checked and that No Dues Certificate was issued vide letter dated 09.12.2015 by OPs. Another representation dated 18.01.2016 was submitted by complainant with OPs for calling upon them to hand over possession of the booth and in response to the same, letter dated 22.01.2016 from OPs was received for calling upon complainant to appear in the office of OPs on a working day for receiving possession certificate. Physical possession certificate dated 11.02.2016 was handed over to complainant. On getting of possession of booth, complainant called upon OPs to pay interest @ 8% per annum compounded annually and as such complainant had to file another representation on 17.02.2016 with OP No.1 for seeking interest for delayed possession period. No reply was received and that is why this complaint filed after serving legal notice for calling upon OPs to pay interest @ 8% per annum compounded annually till realisation as per Clause-16 of the brochure. Compensation of Rs.2.50 lakhs or in the alternative interest on the amount not rightfully realized @ 24% from the promised date of possession till realisation, is also claimed. Rs.1.00 lakh claimed as litigation expenses.
2. OPs filed reply by pleading inter alia as if there is no deficiency in service on the part of OPs and nor they adopted any unfair trade practice as well as complaint is not maintainable because booth was purchased by complainant for speculative purposes for re-sale and not for self occupation. Moreover, it is claimed that in view of involvement of complicated questions of law and facts, complaint is not maintainable because of the summary nature of proceedings to be conducted by this Forum. By claiming that complainant has not approached the Forum with clean hands, it is sought to be mentioned that after initial deposit of 75% amount of Rs.9,30,000/-, complainant was required to deposit 25% balance amount of Rs.3,41,000/- plus service tax charges before taking possession of the booth. Complainant was called upon vide letter dated 07.05.2014 to deposit an amount of Rs.42,364/- towards service tax and he deposited the same on 09.06.2014. Balance 25% amount of Rs.3,41,000/- was deposited by complainant on 17.07.2015 and thereafter in response to communication dated 01.12.2015, complainant was intimated that allotment letter had already been issued to him and he can get possession after visiting office on any working day. As payment of balance 25% of the sale price was sine qua non for claiming possession of booth as per terms of allotment letter dated 17.01.2013, and as such possession could not have been delivered till deposit of 25% of balance amount. Admittedly complainant applied for issuance of No Due Certificate vide application dated 01.12.2016 and the same was issued through letter dated 09.12.2016. Vide representation dated 18.01.2016, complainant sought possession of the booth and in response to the same he was informed that he can get possession of booth by visiting office of OPs on any working day through letter No.3668 dated 22.01.2016. Complainant visited office of OPs and got possession of the booth on 11.02.2016. Possession was offered to complainant on 10.11.2015 on compliance of terms and conditions of allotment letter regarding payment of due amount. No fault with OPs was there. Construction of booth in question was completed on 31.12.2012. Possession was offered to complainant on 10.11.2015. As per allotment letter dated 17.01.2013 all disputes liable to be referred to Sole Arbitrator i.e. Chief Administrator, GMADA and as such it is claimed that in view of Section 8 of Arbitration & Conciliation Act, 1996, the matter deserves to be referred to the Arbitrator. All other averments of the complaint denied one by one each.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith document Ex.C-1 to Ex.C-14 and thereafter closed evidence. On the other hand counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Ms. Pooja Sayal Grewal, Estate Officer alongwith documents Ex.OP-1 to Ex.OP-5 and thereafter closed evidence.
4. Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.
5. Undisputedly booth in question was purchased by complainant in auction after participating in the bid and 75% of the amount was deposited on different dates. Acknowledgment receipt Ex.C-2 shows as if demand draft of Rs.1.00 lakh was deposited at the time of taking part in the bid itself, but Rs.9,30,000/- deposited subsequently on 12.04.2012 through State Bank of India receipts placed on record as Ex.C-3. Booth in question was purchased by complainant for earning livelihood by way of self employment because he was not owning any other commercial property after completing education. That fact is borne from the contents of complaint and supporting affidavit of the complainant. No evidence to the contrary is led by OPs except the bald assertion that booth was purchased for speculative purposes. Complainant bound to have knowledge of his own affairs and as such version given by complainant is believable that he purchased the booth in question for occupation for earning livelihood by way of self employment. Being so, complainant certainly is consumer within meaning of Section 2 (1) (d) of the Consumer Protection Act.
6. Benefit from ratio of case of Major Vishwani Puri & Ors. Vs. DLF Universal Ltd., 2015(1) CPJ 65 (NC) cannot be availed by counsel for OPs because in the reported case 92 allottees in a tower got booked commercial space and that is why it was found that plea regarding booking of commercial space for occupation of same for earning livelihood by way of self employment is not sustainable. In view of peculiar facts of this case, it was found that mere taking of plea will not entitle the complainant to get benefit of explanation appended to Section 2 (1) (d) of the Consumer Protection Act. However, in the present case, complainant is a single fellow, who purchased the commercial space in his name after completion of his education and does not own any commercial property and as such certainly plea taken in the complaint is sustainable that the site in question purchased by complainant for earning livelihood by means of self employment. Likewise benefit of case titled as Ravinder Kaur Sethi Vs. DLF Universal Limited & 2 Ors, 2017(3) CPJ 202 (NC), cannot be availed by counsel for OPs because after going through ratio of this case it is made out that complainant herself was not running the business of selling wine in the shop, rather the shop was let out by her for earning rental income and that is why it was held that occupation of the shop was not for earning livelihood by way of self employment. This is not the position in the case before us, as discussed above. In case of Inderjit Singh Mangat and Anr. Vs. Godrej Properties Ltd., 2016(3) CPJ 200 (NC), it was found that complainants being Non Resident Indians were not intending to work themselves in the commercial units booked by them, but they were aspiring to let out the same for earning rental income. There is no material produced on record of this file to show that complainant intended to let out the shop/booth in question for earning rental income. So facts of the reported cases are distinguishable than those of the facts of the case before us.
7. In case titled as Sanjay Kumar Joshi Vs. Municipal Board, Laxmangarh and another, 2014(3) L.A.R. 595 (SC) it was found that a person who purchased plot for earning livelihood is consumer within meaning of Section 2 (1) (d) of Consumer Protection Act. In case facts and circumstances shows that a person purchased shop/property for self occupation for earning livelihood by way of self employment, then certainly he will be a consumer even as per case titled as Kunj Bihari Lal (since deceased) through his LRs and Ors Vs. Urban Improvement Co. Pvt. Ltd. 2014(1) CPR 557 (NC). Ratio of both these cases fully applicable to the present case in view of above discussion and as such complaint at the instance of complainant is maintainable, more so when he is a consumer.
8. Counsel for complainant points towards Clauses 13 & 16 of terms and conditions of Ex.C-1 for arguing that complainant being successful bidder deposited 75% of the earnest amount into SBI account of OPs, but balance 25% was payable before possession is handed over. Possession to be handed over within one year from the date of allotment is also mentioned in Clause-13. Deposit of 75% amount through receipt Ex.C-3 certainly is proved and as such virtually 75% of the amount was deposited on 12.04.2012 by complainant. As per Clause-13 of terms and conditions of agreement Ex.C-1, possession was to be handed over within one year from the date of allotment. That allotment took place on 17.01.2013 through issue of allotment letter Ex.C-4 = Ex.OP-1. However, possession in this case contended to be delivered on 11.02.2016 on issue of possession certificate Ex.C-12 and as such it is vehemently contended that there is delay of more than three years in delivery of possession after deposit of Rs.9,30,000/- through receipt Ex.C-3 dated 12.04.2012. For this delay in delivery of possession, complainant contended to be entitled for interest on the paid amount. Though these submissions advanced by counsel for complainant looks ex-facie as correct, but in fact they have no force because when terms of Clause-13 of terms and conditions contained in Ex.C-1 taken in consideration as a whole, then the same leaves no manner of doubt that 25% of the balance amount has to be deposited before handing over of possession by OPs to complainant. So it is not the date of allotment alone, which is material, but date of deposit of balance 25% of amount of sale price is also material. As deposit of balance 25% amount is a condition sine qua non for delivery of possession as per stipulations contained in Clause-13 of Ex.C-1 and as such complainant was not entitled for delivery of possession of the allotted booth till he deposited balance amount of Rs.3,41,000/-.
9. Through letter Ex.C-4 = Ex.OP-1 dated 17.01.2013, complainant was made aware that balance 25% amount of Rs.3,41,000/- liable to be deposited by him before getting possession of allotted booth in question to him. Condition in Clause-1 (iv) is contained in Ex.C-4 = Ex.OP-1 to the effect that in case possession of the built up booth not handed over within 12 months from the date of allotment, then GMADA liable to pay interest @ 8% per annum for the period of delay. Even if this condition may be there, but same has to be read in juxta position of other terms and conditions contained in Ex.C-4 and Ex.C-1. As payment of balance 25% amount of Rs.3,41,000/- is a condition precedent for delivery of possession by OPs to complainant, and as such certainly complainant not entitled to possession till he deposited balance amount of Rs.3,41,000/-.
10. Complainant through letter Ex.C-5 = Ex.OP-2 dated 07.05.2014 was required to deposit 3.09% of the bid amount as service tax by specifically disclosing that he is required to deposit the amount of Rs.42,364/- within 30 days of issue of this letter. In pursuance of this, complainant deposited Rs.42,364/- through demand draft/cheque dated 06.06.2014 copy of which produced on record. Balance 25% amount of Rs.3,41,000/- was deposited by complainant in account of OPs on 17.07.2015 is a fact borne from contents of Ex.C-7 and before that he called upon OPs through letter Ex.C-6 dated 01.07.2015 for disclosing him about the actual date of delivery of possession by claiming that no allotment letter has been sent by OPs to him. However, allotment letter Ex.C-4 dated 17.01.2013 is produced by complainant himself on the record. Complainant was informed through communication Ex.C-8 dated 10.11.2015 as if allotment letter dated 17.01.2013 had already been issued and he can appear in the office of OPs on any working day for getting possession certificate of the site in question. As entitlement of the complainant for getting possession was only after deposit of 25% of the balance sale consideration amount, which he deposited on 17.07.2015 through Ex.C-7, and as such after issue of communication Ex.C-8 dated 10.11.2015 virtually OPs offered to handover possession to complainant on his appearance in the office of OPs on any working day. So denial of right of complainant to get possession was not made by OPs after deposit of balance 25% sale consideration amount.
11. Counsel for complainant after taking us through acknowledgment Ex.C-9 claims that he contacted OPs for getting possession of booth on 01.12.2015, but same was not handed over to him. However, letter Ex.C-10 shows as if request for issue of No Due Certificate alone was submitted by complainant through letter No.10830 dated 01.12.2015. Specific reference in this respect is made in Ex.C-10 and as such it is obvious that documentary evidence placed on record by complainant himself establishes as if he applied for getting No Due Certificate through letter dated 01.12.2015. So virtually no request for getting delivery of possession or possession certificate was put forth by complainant through letter dated 01.12.2015. However, in response to letter dated 18.01.2016 sent by complainant to OPs, they informed complainant through letter Ex.C-11 dated 22.01.2016 that he can get possession certificate of booth by visiting office of OPs on any working day. Thereafter possession certificates Ex.C-12 dated 11.02.2016 was issued and as such virtually delay in delivery of possession not attributable to OPs, but same is on account of the fact that complainant himself did not appear on any working day in the office of OPs for getting possession certificate. Perusal of possession certificate Ex.C-12 shows that signatures of allottee/representative also to be obtained on the possession certificate at the time of issue of the same and as such in the absence of appearance by complainant or his representative in the office of OPs, in person, possession certificate Ex.C-12 could not be issued.
12. Through letter Ex.C-13 (un-dated) complainant called upon Chief Administrator GMADA to handover possession of the allotted booth because he has deposited 25% amount on 17.07.2015. Endorsement on Ex.C-13 with signatures of some officials with date 17.02.2016 is there and as such it looks as if Ex.C-13 presented in the office of Chief Administrator GMADA after getting of possession certificate Ex.C-12. Rather through Ex.C-13 demand with interest @ 8% compounded annually as per Clause-16 of terms and conditions contained in brochure was put forth by complainant. Date of delivery of possession of booth in question to complainant by OPs is not at all specified in Ex.C-13. Even in legal notice Ex.C-14 sent through counsel, date of getting of possession of the allotted booth by complainant from Ops is not at all mentioned though reference of receipt of letter No.3663 dated 22.01.2016 (Ex.C-11) is made. Through Ex.C-14 it is sought to be projected as if complainant got possession under compelling circumstances, but such compelling circumstances not specifically disclosed except that entire payment had been deposited by complainant with OPs. So, legal notice even contains vague averments for claiming interest amount. In such circumstances contents of affidavit Ex.OP-1/1 of Ms. Pooja Sayal Grewal, Estate Officer of OP are correct that vide letter dated 22.01.2016 Ex.C-11 = Ex.OP-4, complainant was called upon to visit office of Ops for getting possession. Similar letter dated 10.11.2015 Ex.OP-3 = Ex.C-8 even was issued by OPs to complainant and as such it was for complainant to disclose the specific date of his visit to office of OPs on which he sought delivery of possession. However, story regarding visit by complainant to the office of OPs on 01.12.2015 is not believable, as discussed above and as such complainant not entitled to any interest as per Clause-16 of Ex.C-1 because delay on part of OPs not there, but same occurred because of deposit of balance 25% amount late by complainant with OPs and also because of non visit by complainant to OPs even after receipt of above referred letters.
13. Even if arbitration clause may be existing in the agreement, but despite that this Forum has jurisdiction to decide this consumer dispute because as per Section 3 of Consumer Protection Act remedy available with consumer is in addition to the other remedy available under provisions of Arbitration & Conciliation Act, is the settled legal proposition. Entitlement of complainant for interest as per terms and conditions of the allotment letter or of brochure is not there, when those terms and conditions are taken together, as discussed above and as such deficiency in service on part of OPs is not there, due to which by keeping in view ratio of case titled as J.K. Sahni and others Vs. CEO-cum-Secretary, 2014(3) CPJ 478 (NC) complainant not entitled for interest amount or to any other amounts. Ratio of this case of J.K. Sahni and others Vs. CEO-cum-Secretary (supra) and of Rajit Khod Vs. Haryana Urban Development Authority, 2011(4) CPJ 669 (NC) shows that liability to pay interest or other compensation amount of builder or urban authorities to accrue only on proof of deficiency in service, which deficiency in service is not there in this case, as discussed above and as such complaint deserves to be dismissed.
14. As a sequel of above discussion, the complaint dismissed with no order as to costs. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
August 01, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
