STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        UNION TERRITORY, CHANDIGARH

1.       Ansal Properties & Infrastructure Ltd., Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi – 110 001 through its Managing Director.

2.     Ansal Properties & Infrastructure Limited, Regional Office, SCO No. 183-184, Madhya Marg, Sector 9-C, Chandigarh. 

….…Appellants/Opposite Parties

V E R S U S

Indu Dhir wife of R.K.Dhir, resident of H.No. 800, Sector 4, Panchkula, Haryana.

.…..Respondent/Complainant.

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                MRS. NEENA SANDHU,                    MEMBER

Argued by:   

Sh.Vaibhav Narang, Advocate for the appellant.

                Sh.Rajneesh Malhotra, Advocate for the respondent.

MRS. NEENA SANDHU, MEMBER

                This appeal is directed against the order dated 10.10.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint filed by the complainant and directed the  Opposite Party (now appellants) as under:-

“8.            We accordingly, allow the present complaint. The Opposite Party is directed to refund the amount of Rs.10,71,250/- deposited by the complainant, alongwith interest @ 9% p.a, from the respective date of deposits, till the actual date of refund. The Opposite Party will also pay Rs.7,000/- as cost of litigation.

9.             The Opposite Party is directed to comply with the above order within 45 days from the date of receipt of certified copy of this order, failing which the Opposite Party shall be liable to pay interest @ 12% p.a. instead of 9% p.a. on the deposited amounts from the respective dates of deposits, till it is actually paid, besides paying Rs.7,000/- as cost of litigation”.        

2.                    In brief, the facts of the case are that the Opposite Party had launched a courtyard in the market for which the complainant made a booking on 06.09.2008. The complainant stated that a sum of Rs.10,71,250/- was deposited on different dates, as per following details: -

                                    i.           Rs.4,50,000/- on 12.9.2008.

                        ii.     Rs.3,10,625/- on 10.10.2008.

                        iii.    Rs.1,20,000/- on 29.12.2008.

                        iv.     Rs.1,90,625/- on 15.01.2009.

After receiving the first payment of Rs.4,50,000/- the Opposite Party issued an allotment letter dated 06.09.2008. It was also assured that the construction would be started immediately and possession would be handed over before December, 2010.                 It was stated that the Opposite Party did not start the construction, till December, 2010. A legal notice dated 5.3.2012 was issued to the Opposite Parties for fulfillment of their commitment, but no reply was received by the complainant. It was further stated that the courtyard had been booked by the complainant for her own personal use. Ultimately, the complainant requested the Opposite Parties to refund the amount of Rs.10,71,250/- along with interest but to no avail. It was further stated that the Opposite Party was deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.                    In its written reply, the Opposite Party, took up the preliminary objections that the complainant had applied for the allotment of a Shop for commercial purpose, which was allotted to her, vide allotment letter dated 06.09.2008 and hence, she was not a consumer as per Section 2(d) of the Consumer Protection Act, 1986, and the complaint was not maintainable.  It was admitted that the complainant had paid a sum of Rs.10,71,250/- as per plan and an allotment letter was issued to her, accordingly, but she failed to make payment as per the given schedule and was hence a defaulter.  It was denied that the shop was not ready for possession. It was stated that, in fact, it was the complainant who violated the terms and conditions of the allotment letter and failed to make the timely payments. It was further stated that the complainant was repeatedly requested to make balance payment, but to no effect. As per Clause 9 of the agreement the complainant was liable to pay interest @ 21% per annum on the delayed payments. Besides this, the Opposite Party had a right to forfeit the earnest money in the event of irregular/ delayed payment and non-fulfillment of the terms of payment. It was further stated that as per Clauses 3 and 4 of the allotment letter, the Opposite Party had right to cancel the allotment in case the amount was not paid on time. It was further stated that the shop allotted to the complainant is ready for possession. It was further stated that, the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice. The remaining allegations were denied by the Opposite Party, being false.

4.                    The Parties led evidence, in support of their case.

5.                    After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint, as stated above. 

6.                    Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

7.                    We have heard the Counsel for the parties and, have gone through the evidence and record of the case, carefully.  

8.                    The Counsel for the appellants/Opposite Parties submitted that the complainant booked the commercial shop in the project launched at Mohali and she deposited Rs.4.50 lacs for booking of the said commercial shop and accordingly the allotment letter dated 6.9.2008 was issued to her.  He further submitted that the complainant paid in all a sum of Rs.10,71,250/- till 15.01.2009 out of Rs.30 lacs and thereafter she stopped making the payment against the shop. He further submitted that the complainant failed to make the balance payment towards the shop despite letters/reminders and telephonic calls as per the terms and conditions of the allotment letter.  He further submitted that the complainant was not a consumer as the shop was purchased for commercial purposes in a commercial project.  He further submitted that the order of the District Forum, being illegal, is liable to be set aside.

9.                                          On the other hand, the Counsel for the respondent/complainant submitted that the order passed by the District Forum, being based, on the correct appreciation of evidence, and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission and the same is liable to be upheld.

10.                 The first question, to be determined, in this case, is. as to whether, the complainant who purchased the courtyard, in question, in the commercial project of the Opposite Parties, is a consumer, as defined under the provisions of the Consumer Protection Act, 1986 or not. The answer to this question, is in the affirmative. The complainant, in para 6 of the complaint in clear-cut terms, stated that the she booked the courtyard, in question, for her own personal use for which she even obtained the loan from her near and dear. In support of this submission, the complainant placed reliance upon Annexure C-5. The perusal of the same clearly shows that the complainant wanted to purchase the courtyard for running the classes with a view to earn her livelihood. On the contrary, the Opposite Parties did not adduce any evidence that the said courtyard was purchased by the complainant for commercial purpose. It is, thus, held that the complainant is a consumer as defined under the provisions of the Consumer Protection Act, 1986. Under these circumstances, the objection raised by the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected.

11.                 The Counsel for the appellants further submitted that the complainant failed to make the balance payment towards the courtyard despite letters/reminders and telephonic calls as per the schedule mentioned in the allotment letter due to which the construction could not be completed within the stipulated period.

12.                 On the other hand, the Counsel for the respondent submitted that the Opposite Parties promised that the construction of the built up commercial shop was likely to be completed within 2 to 2 & ½ years of commencement of the work but they failed to raise construction as per the allotment letter. 

13.                 The Opposite Parties failed to produce, on record, any document to show that they raised the construction as per the construction linked installment plan/allotment letter and ever made any effort to deliver the possession of the courtyard to the complainant. As stated above, a sum of Rs.10,71,250/- towards the price of the courtyard has already been paid by the complainant, to the Opposite Parties, but they failed to raise construction within 2 to 2-1/2  years from the date of issuance of the allotment letter. Hence, the complainant was not bound to pay the remaining amount, especially, when there was no progress in construction, at the site. The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. In Prasad Homes Pvt. Ltd. Vs E.Mahender Reddy & Ors. 1(2009)CPJ 136 (NC),  no development work had been  carried out, at the site. Thus, the   payment of further installments, was stopped by the complainant. It was, in these circumstances, held by the Hon’ble National Commission, that the builder could not be allowed to take shelter, under any clause of the agreement, to usurp the money deposited by the complainant. It was further held that, if any clause, in the agreement, entitled the builder to forfeit the deposited amount, even if, the fault was on his part, that could be said to be heavily loaded, in his favour, and it amounted to indulgence into unfair trade practice. The National Commission, ultimately, upheld the order of the State Consumer Disputes Redressal Commission directing the refund of the deposited amount, with interest. The principle of law, laid down in Prasad Homes Pvt. Ltd.’s case (supra) is fully applicable to the facts of the instant case.  In Clause 10 of the allotment letter, it was mentioned that the construction of the built up commercial shop was likely to be completed within 2 to 2 & ½ years of commencement of work. Admittedly, the allotment letter, in the present case, was issued to the complainant on 06.09.2008 and, thus, the Opposite Parties were required to commence the construction immediately but it failed to do so. The complainant could not wait indefinitely, at the whims and fancies of the Opposite Parties. Once the Opposite Parties failed to raise the construction as per the schedule, they had no occasion to agitate that the complainant had failed to make the payment as per the allotment letter and violated the terms and conditions thereof. The Opposite Parties were, thus, deficient, in rendering service. With these observations, we are of the considered opinion that the District Forum rightly allowed the complaint.  The order of the District Forum, being legal and valid, is liable to be upheld.

14.                 The order passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission.

15.                 For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with no order as to costs. The order of the District Forum is upheld.

16.                 Certified Copies of this order be sent to the parties, free of charge.

17.                 The file be consigned to Record Room, after completion.

Pronounced.                                                                                                  Sd/-

19.02.2013                               [JUSTICE SHAM SUNDER[RETD.]

                                                                                 PRESIDENT         

                                                                                                            Sd/-                                  [NEENA SANDHU]

                                                                                                MEMBER