DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.497 of 2015 Date of institution: 24.04.2015 Date of decision : 26.10.2017
Mrs. Sumiti wife of Mr. Somesh, resident of House No.896/1, Sector 40-A, Chandigarh.
……..Complainant
Versus
1. Mr. H.S.Mann, Chairman, Chandigarh Overseas Pvt. Ltd., C/o Project Site "Jade Business Park" Sector-90, Mohali.
Second Address:
Mr. H.S.Mann, Chairman Chandigarh Overseas Pvt. Ltd., resident of House No.HM 23-24 Phase-1, Mohali.
2. Mr. Sumesh Chawla, Authorised Signatory, Chandigarh Overseas Pvt. Ltd. SCO No.249, Sector 44-C, Chandigarh.
3. Mr. Aakash Arora, Vice President(Finance), Chandigarh Overseas Pvt. Ltd. SCO No.249, Sector 44-C, Chandigarh.
…..Opposite Parties
Complaint under Sections 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President Mrs. Natasha Chopra, Member.
Present: Shri Bhupinder Ghai, counsel for the complainant.
Shri Abhinav Kansal, counsel for the OPs.
ORDER
By Ajit Pal Singh Rajput, President.
Complainant, Mrs. Sumiti wife of Mr. Somesh, resident of House No.896/1, Sector 40-A, Chandigarh, has filed this complaint against the Opposite parties (hereinafter referred to as “the OPs”) under Section 12 of the Consumer Protection Act 1986. The brief facts of the complaint are as under:
2. The OPs had promoted and have set up a Techno-knowledge park under the name, design and insignia of Industrial Knowledge(Fashion Technology Park) on a plot of land total measuring 13.74375 Acres situated at Sector 90, S.A.S.Nagar- Mohali, Punjab, wherein they posed that they are developing the total land by constructing thereon a multi-storied Industrial Zone/Complex, Commercial Zone/Complex, Residential Flats etc. and have launched a scheme called 'Small Investors Scheme' vide which a share in design studio of an area measuring 100 Sq.Ft. in case of 5th Floor or 125 Sq. Ft. in case of 6th floor of the Industrial Zone/Complex shall be offered to the prospective buyer(s) on freehold basis as a co-owner of the design studio. As the complainant is running her business by the name of Sanskriti Fancy Dresses and was interested in purchasing one of the said Design Studio to earn her livelihood, therefore, she applied for the same and an amount of Rs.1,25,000/- was paid by her to the OPs vide receipt No.363 dated 24.08.2006 issued by the OPs. Thereafter on 16.09.2006 OP No.2 acknowledged the receipt of application form and requisite application money and it was also stated that the complainant is eligible for "Buy-Back Option". Thereafter on 23.10.2006 the complainant again paid Rs.1,25,000/- to the OPs vide receipt No.659 dated 23.10.2006. As per Developer Buyer Agreement, which was executed between the complainant and the OPs on 29.12.2006, the complainant was issued a super built up area of 125 Sq. Ft. bearing Design Studio No.12 on 6th Floor in A-2 Block. It was also stated in para No.28 of the said agreement that the OPs will hand over the possession of the unit within 30 months from the date of start of construction and in default of the same, the OPs had agreed that they will pay Rs.50/- per sq.feet per month as compensation for delayed period. The complainant also paid another sum of Rs.1,25,000/- on 29.12.2006 vide receipt No.1191 dated 29.12.2006 and then on 04.04.2007 paid Rs.1,00,000/- vide receipt No.1784. The complainant paid a total amount of Rs.4,75,000/- within the period from August 2006 to April 2007. Then after a much delayed period of 3 years, a letter dated 22.06.2009 was sent by OP No.2 to the complainant informing that the date of start of construction was 19.07.2007 and admited that 30 months period will get completed on 18.01.2010. It was also informed that the complainant can avail buy back offer per unit at the rate of 7.50 lakhs. The complainant had not accepted the Buy Back Option as she wanted to start her work from the space applied for by her with the OPs. But the OPs have failed to deliver the possession and have sold off their project to some third party and have made huge money out of the same. The complainant is no more interested in the project of the OPs. The act and conduct of the OPs amounts to deficiency in service and unfair trade practice. Hence, this complaint for giving directions to the OPs to refund Rs.4,75,000/- to the complainant along with interest @ 18% per annum and further to pay Rs.4,37,500/- as compensation for delay in handing over the possession @ Rs.50/- per month per sq. ft. and Rs.1,00,000/- for using hard earned money of the complainant in their project and Rs.33,000/- as litigation expenses.
3. The complaint is contested by the OPs. In reply to the complaint OPs No. 1 & 3 raised certain preliminary objections, inter alia, that the complainant does not fall under the definition of 'Consumer' as she availed the services for commercial purposes; the complainant has concealed the material facts from this Forum and does not come with clean hands and the present complaint is miserably barred by limitation and was liable to be dismissed. As regards the facts of the complaint OPs No. 1 & 3 stated that the Project of the Developer OPs is "Fashion Technology Park". The approval for the said project was granted vide Eligibility Certificate No.CC/JDP/COPL/299 dated 18.01.2005 under Clause 10.4 of Industrial Policy,2003. The said project/its part could not be used for any other purpose than Fashion Technology as per the mandate of the Project Approval. As per agreement the unit purchased by the complainant cannot be used for other purpose than for setting up establishing industrial space/warehouse related to Design, Fashion and life style industry and the same has to be offered to OP No.2 on lease rentals, who after combining complainant's unit as well units of other allottees will establish a design studio. The complainant executed the Back to Back lease deed 29.12.2006 in favour of OP No.2 and agreed to accept the lease money. It was specifically stipulated that in case of any delay on the part of statutory bodies, delay on account of non- availability of construction material or otherwise for the reasons which are beyond the control of the OP, the OP shall be entitled to corresponding extension of time for delivery of possession on account of the force majeure circumstances. The developer/owner started construction on the said property, however due to certain reasons which were beyond the control of the owner, the construction work stopped. The OPs have made earnest efforts to complete the project, however, they become victim of global recession and misdeeds of the contractors. The OPs invested more than Rs.100 Crore in the project and there is a substantial development already done. There was no intentional delay on the part of the OPs and no liability thereof can be foisted on the OP in any manner. Hence, there is no deficiency in service on the part of the OPs. After denying the other averments made in the complaint, OPs No. 1 & 3 prayed for dismissal of the complaint.
4. In reply to the complaint OP No.2 stated that it did not have any connection with the construction of the project and it was not to deliver any property to the complainant. The said construction site belonged to the developer i.e. Chandigarh Overseas Pvt. Ltd and OP No.2 only a maintenance agency to provide lease transaction to the respective unit(s) after the possession was to be handed over. The role of OP No.2 was to start only after the completion of the project and there was no occasion for OP No.2 to have an office at project site of another company. It is further stated that the present complaint has been filed against both the OPs and deliberately not attached lease agreement, which was signed with OP No.2, however, no specific relief has been claimed against OP No.2. The OP No.2 is a maintenance agency, who is also taking consolidated leasing of the property. There is no deficiency in service on the part of OP No.2. After denying the other averments made in the complaint OP No.2 prayed for dismissal of the complaint qua it.
5. In order to prove her complaint, the complainant tendered in evidence her affidavit Ex. CW1/1; copies of payment receipt Ex. C-1; letter Ex. C-2; receipt Ex. C-3; buyer agreement Ex. C-4; receipts Ex. C-5 and Ex. C-6; lease agreement Ex. C-7. In rebuttal the OPs tendered in evidence affidavit of Gurmit Singh, their Authorized Signatory Ex. OP1/1; affidavit of Sh. Jaspal Singh, authorized signatory of M/s Green Field Site Management Pvt. Ltd. Ex. OP1/2; copies of application form Ex. OP-1; eligibility certificate Ex. OP-2; lease agreement Ex. OP-3, agreement Ex. OP-4; lease agreement Ex. OP-5 and eligibility certificate Ex. OP-6.
6. We have heard learned counsel for the parties and have gone through the pleadings, evidence, written arguments as well heard learned counsel for the parties.
7. Learned counsel for the Ops has argued that the complainant is not a ‘consumer’ as defined under the Consumer Protection Act as she had booked a Design Studio in the Fashion Technology Park being developed by the OPs. This contention of the OPs cannot be accepted as the complainant has specifically pleaded in Para No.3 of the complaint that she is running her business by the name of Sanskriti Fancy Dresses and was interested in purchasing one of the Design Studio to earn her livelihood. As such she is a ‘consumer’ within the meaning of Section 2 (1) (d) of the Act. As per Clause 28 of the Developer Buyers Agreement Ex.C-4, possession of the Design Studio was to be delivered to the complainant within 30 months from the date of start of construction. As per letter dated 22.06.2009 Ex.C-7 of the OPs, the construction started on 19.07.2007 which means that possession was to be delivered by 18.01.2010. However, the OPs at any stage did not demand from the complainant the remaining price as per installment plan in the agreement Ex.C-4 for proceeding further with the construction. Even now the construction of the studio is not complete. The OPs have pleaded that they are making earnest efforts to complete the construction. However, no evidence in this regard has been placed on record by the OPs. The complainant has proved deposit of Rs. 4,75,000/- with the OPs vide various receipts dated 24.08.2006 Ex.C-1, 23.10.2006 Ex.C-3, 29.12.2006 Ex.C-5 and dated 04.04.2007 Ex.C-6. The complainant has paid a total sum of Rs.4,75,000/- to the OPs. The amount paid by the complainant to the OPs if invested elsewhere in real estate would have definitely atleast doubled. Thus, the complainant is justified in seeking refund of her deposited amount alongwith compensation for usage of her money. The prayer of the complainant that the OPs may be directed to pay her compensation for delay in handing over the possession w.e.f. 19.01.2010 @ Rs.50/- per month per sq. ft. cannot be accepted as the total amount deposited by the complainant is being got refunded to her alongwith interest. In a similar case, titled as Ms. Sneh Sood Vs. M/s. Bajwa Developers Ltd. in Consumer Complaint No.240 of 2016 decided on 23.02.2017, the Hon’ble Punjab State Consumer Disputes Redressal Commission has ordered refund of the deposited amount of the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund.
8. Accordingly, in view of our aforesaid discussion, we direct the OPs to refund the deposited amount of Rs.4,75,000/- (Rs. Four Lakhs Seventy Five Thousand only) to the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts, till the actual date of refund. We also find that complainant is entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony due to the negligent act of the OPs and litigation cost of Rs.10,000/- (Rs. Ten thousand only). The present complaint stands allowed.
The OPs are further directed to comply with the order of this Forum within 30 days from the date of receipt of this order, failing which the amount of compensation awarded shall carry interest at the rate of 12% per annum from the date of this order till realisation.
The arguments on the complaint were heard and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 26.10.2017
(A.P.S.Rajput)
President
(Mrs. Natasha Chopra)
Member
