PARNITA GAREWAL filed a consumer case on 26 Jul 2016 against LANDMARK APARTMENT PVT. in the StateCommission Consumer Court. The case no is CC/92/2015 and the judgment uploaded on 29 Aug 2016.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Complaint No. : 92 of 2015
Date of Institution: 05.06.2015
Date of Decision : 26.07.2016
1. Ms. Parnita Garewal d/o late Sh. Kanwaljit Singh Garewal
2. Ms. Tanya Garewal d/o late Sh. Kanwaljit Singh Garewal
Both Residents of House No.536, Sector 16-D, Chandigarh.
Complainants
Versus
M/s Landmark Apartment Private Limited, Gurgaon, through its directors:
1. Shri Sandeep Chhiller s/o Sh. Kartar Singh
2. Shri Yashvir Kadayan s/o Sh. Raghbir Singh Kadayan, Office at Plot No.85, Sector-44, Gurgaon, Haryana.
Opposite Parties
CORAM: Hon’ble Mr. Justice Nawab Singh, President.
Shri B.M. Bedi, Judicial Member.
Shri Diwan Singh Chauhan, Member
Present: Shri Vishal Nehra, Advocate for Complainants.
Shri S.S. Mor, Advocate for Opposite Parties.
O R D E R
B.M. BEDI, JUDICIAL MEMBER
The present complaint under Section 17 of the Consumer Protection Act, 1986 (for short, ‘Consumer Act’) has been filed by Ms. Parnita Garewal and her sister Tanya Garewal-complainants averring that pursuance to the advertisement published by M/s Landmark Apartment Private Limited ((for short, ‘the Builder’)-Opposite Parties, they applied for purchase of space for shop measuring 1200 square feet, in the upcoming project namely “Landmark Cyber Park, Sector-67, Gurgaon” vide application Exhibit C-1 for their livelihood at the rate of Rs.4167/- per square feet. The complainants paid Rs.50.00 lacs, to the builder vide receipt Exhibit C-11. Memorandum of Understanding (MoU) Exhibit C-10, was executed on December 11th, 2007. The project was to be completed within three years from the date of execution of the MoU. The builder did not complete the project within the stipulated period of three years. The complainants got issued legal notice (Exhibit C-12) seeking refund of the amount deposited by them, alongwith interest as per MoU but the builder did not pay the amount. Hence, the present complaint.
2. The builder-opposite parties contested the complaint by filing reply raising preliminary objection that the space in their project being commercial, the complainants do not fall within the definition of Consumers. It was admitted that necessary licence and other permissions were issued by the authorities. They had already applied for the completion certificate to the competent authority, so the delay was not on their part. It was prayed that the complaint merited dismissal.
3. In evidence, Parnita Garewal-complainant appeared as CW-1 and produced documents Exhibits C-1 to C-12 besides affidavit Exhibit C-13.
4. The builder tendered affidavit of Rajesh Garewal, authorized representative alongwith documents Exhibits R-1 to R-3.
5. Arguments heard. File perused.
6. Parnita Garewal-complainant, when appeared as CW-1, has specifically stated that they wanted to purchase the space for the purpose of earning livelihood by opening Golf Academy. Builder has not produced even an iota of evidence to prove that the space was booked by the complainants for the purpose of trading or that it was not for earning their livelihood. So, a bald assertion by the builder that the property had been booked for the purpose of making profits is not sufficient to hold that the transaction was for “Commercial purpose.” So, this plea of the builder is hereby rejected.
7. The application for booking of space (Exhibit C-1) is on the file. As per Clause (d) of the application, it was agreed that the builder shall allot the space within 36 months and in case of there being failure on the part of the builder in doing so, the complainants were at liberty to either withdraw the amount so advanced and the builder was obliged to refund the amount with interest @ 12% per annum. The date of booking is December 11th, 2007, an admitted fact. The project has not been completed till date despite lapse of more than 8½ years. Even in the written version the builder has not denied that despite lapse of more than 8½ years, possession has not been handed over to the complainants.
8. Clause 4 of the MoU (Exhibit C-10) reads as under:
“4. That the First Party will pay Rs.50/- per sq. ft. on 1200 sq. ft. as a assured return in the form of monthly rent to Second Party till the date of possession for 3 years or upto 1st leasing.”
9. In the nature of assured return, the complainants have received a sum of Rs.20,44,642/- from 11.12.2007 to 11.03.2013. The total payment made by the complainants to the builder is Rs.50.00 lacs. Since the complainants have opted for refund, they are entitled to the refund of the deposited amount, that is, Rs.50.00 lacs, with interest @ 12% per annum from the date of booking, which is December 11th, 2007 till the date of realisation, less the amount of Rs.20,44,642/- already paid to the complainants in the nature of assured return. The amount shall be refunded within 60 days from the date of receipt of the copy of the order and in case of failure to refund the amount; the builder shall be liable to pay interest @ 15% per annum on the ordered amount. The builder is further directed to pay compensation of Rs.25,000/- for mental agony/harassment etc and Rs.10,000/- litigation expenses.
10. The complaint stands disposed of accordingly.
Announced 26.07.2016 | Diwan Singh Chauhan Member | B.M. Bedi Judicial Member | Nawab Singh President |
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