STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.    M/s  Green Field Sites Management Pvt. Ltd., SCO No.196-   197,        Top  Floor, Sector 34-A, Chandigarh, through its Director.

2.    M/s Chandigarh Overseas Pvt. Ltd., SCO No.196-197, Top Floor, Sector 34-A, Chandigarh, through its Director

……Appellants/Opposite Parties No.1 and 2

V e r s u s

Mrs. Meenakshi Tuli Pasrija w/o Shri Atul Pasrija, r/o House No.273, Sector 15-A, Chandigarh.

              ....Respondent/Complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

Argued by: Sh.Kamaljit Singh Lang, Advocate for the appellants.

               Sh.Gagan Aggarwal, Advocate for the respondent.

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.

              MRS. NEENA SANDHU, MEMBER.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.                  Vide our separate detailed order of the even date, recorded, in connected First Appeal case bearing No.3 of 2012 titled as Mrs. Meenakshi Tuli Pasrija Vs. M/s Greenfield Sites Management Private Ltd., and Ors., this appeal has been dismissed, with no order as to costs. A copy of that order be placed on this file.

2.             Certified copies of the main order alongwith this order be sent to the parties, free of charge.

3.             The files be consigned to Record Room, after completion

Pronounced.

April 2, 2012                                                                                                   Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

[

Rg

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Mrs.Meenakshi Tuli Pasrija w/o Sh.Atul Pasrija, resident of H.No.273, Sector 15-A, Chandigarh.

……Appellant/complainant

V e r s u s

1.    M/s Greenfield Sites Management Private Limited, (A Greenfield Ventures Group Company), SCO No.196-197, 4^th  Floor, Sector 34-A, Chandigarh -160 047, through its Chairman Shri Hardayal Singh Mann.

2.    Chandigarh Overseas Pvt. Limited, SCO No.196-197, Sector 34-A, Top Floor, Chandigarh -160047, through its Chairman Shri Hardayal Singh Mann.

3.    Shri Sandeep Bhasker, Deputy General Manager, Chandigarh Overseas Pvt. Limited, SCO No.196-197, Sector 34-A, Top Floor, Chandigarh.

 4.   Fashion Technology Park, Sector 90, SAS Nagar, Mohali, through its Authorized Authority.

              ....Respondents/Opposite Parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

Argued by:Sh.Gagan Aggarwal, Advocate for the appellant.

               Sh.Kamaljit Singh Lang, Advocate for the respondents.

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Ms.  Saloni Jain D/o Shri Vinod Kumar Jain, resident of House No.1012, Sector 16, Faridabad.

……Appellant/complainant

V e r s u s

1.    M/s Greenfield Sites Management Private Limited, (A        Greenfield Ventures Group Company), SCO No.196-197,    4^th  Floor, Sector 34-A, Chandigarh -160 047, through     its Chairman Shri Hardayal Singh Mann.

2.    Chandigarh Overseas Pvt. Limited, SCO No.196-197, Sector 34-A, Top Floor, Chandigarh -160047, through its Chairman Shri Hardayal Singh Mann.

3.    Shri Sandeep Bhasker, Deputy General Manager, Chandigarh Overseas Pvt. Limited, SCO No.196-197, Sector 34-A, Top Floor, Chandigarh.

 4.   Fashion Technology Park, Sector 90, SAS Nagar, Mohali, through its Authorized Authority.

              ....Respondents/opposite parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

Argued by:Sh.Gagan Aggarwal, Advocate for the appellant.

               Sh.Kamaljit Singh Lang, Advocate for the respondents.

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1.    M/s Green Field Sites Management Private Ltd., SCO       No.196-197, Top  Floor, Sector 34-A, Chandigarh,   through   its Director

2.    M/s Chandigarh Overseas Pvt. Ltd., SCO No.196-197, Top Floor, Sector 34-A, Chandigarh, through its Director

……Appellants/Opposite Parties No.1 and 2

V e r s u s

Saloni Jain D/o Mr. Sh.Vinod Kumar Jain, r/o H.No.1012, Sector 16, Faridabad.

              ....Respondent/Complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

Argued by:  Sh.Kamaljit Singh Lang, Advocate for the appellants.

                    Sh.Gagan Aggarwal, Advocate for the respondent.

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1.    M/s  Green Field Sites Management Pvt. Ltd., SCO    No.196-   197, Top  Floor, Sector 34-A, Chandigarh, through     its Director.

2.    M/s Chandigarh Overseas Pvt. Ltd., SCO No.196-197, Top Floor, Sector 34-A, Chandigarh, through its Director

……Appellants/Opposite Parties No.1 and 2

V e r s u s

Mrs. Meenakshi Tuli Pasrija w/o Shri Atul Pasrija, r/o House No.273, Sector 15-A, Chandigarh.

              ....Respondent/Complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

Argued by:Sh.Kamaljit Singh Lang, Advocate for the appellants.

               Sh.Gagan Aggarwal, Advocate for the respondent.

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.

              MRS. NEENA SANDHU, MEMBER.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.             This order, shall dispose of the aforesaid four appeals, arising out of the common order dated 01.12.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted Complaint Case Nos.281 of 2011 and 282 of 2011, and directed Opposite Parties No.1 and 2, jointly and severally, in each complaint, as under:-

“As a result of the above discussion, it is held that the complainant has right to exercise the “Buy-Back Option”. So, the Opposite Parties No.1 and 2 are directed to pay, jointly and severally, Rs.7,50,000/- to the complainant along with Rs.50,000/- as compensation for mental agony and harassment. The Opposite Parties No.1 and 2 shall also pay to the complainant a sum of Rs.10,000/- as costs of litigation.

This order be complied with by Opposite Parties No.1 and 2 within one month from the date of receipt of the certified copy, failing which, Opposite Parties No.1 and 2 shall be liable to pay interest @ 12% p.a. on the amount of Rs.8,00,000/- (Rs.7,50,000/- + Rs.50,000/-) from the date of filing of the complaint till its realization, besides costs of litigation. 

C.C.NO.282/2011 titled as Saloni Versus M/s Greenfield Sites Management Private Ltd. & another   

Similar facts are involved in this complaint and same evidence has been led. So, similar relief is granted in this case to the complainant”. 

2.             The facts, in brief, as reflected in Complaint Case No.281 of 2011- Mrs. Meenakshi Tuli Pasrija Vs. M/s Greenfield Sites Management Private Ltd., and Ors., are that the complainant applied for industrial work space/design Studio at “Industrial Zone”  in ‘FASHION TECHNOLOY PARK”  vide receipt No.556 dated 25.09.2006 measuring 125 square feet, which was acknowledged by the Opposite Parties, vide letter dated 25.09.2006(Annexure C-3) with confirmation of the “Buyback Option”.  The aforesaid space was allotted to the complainant. A Developer Buyer Agreement was executed between the parties. According to the payment schedule, the complainant made payment of Rs.4.75 lacs,  to the Opposite Parties, through cheques, against the total sale consideration of Rs.5 lacs. The lease agreement (Annexure C-8) was executed, in favour of the complainant on 15.12.2006.  On 26.07.2007, the Opposite Parties intimated the complainant, regarding the  delivery of possession in mid 2009, but, thereafter, they (Opposite Parties), postponed the matter, on one pretext or the other. Lastly, the Opposite Parties, showed their inability to handover the allotted space, to the complainant, on the promised date i.e. 18.01.2010, as also their willingness to compensate the complainant. Thereafter, the Opposite Parties, vide letter dated 22.06.2009 (Annexure C-11), requested the complainant,  to exercise the option of “Buyback”, in one month prior to 18.1.2010, under intimation or lease out the allotted space @ Rs.30,000/- p.a. Ultimately, the complainant accepted the “Buyback option”. She sent a request for lease agreement and “Buyback Option” to the Opposite Parties, on 28.11.2009 vide Annexure C-12.  Thereafter, vide letter dated 20.02.2010, the Opposite Parties, sent a cheque for Rs.15,121/-, to the complainant, as rent/compensation for the period from 19.01.2010 to 31.03.2010 @ Rs.6250/- per month (Annexure C-13) and informed her that “Buyback option” would be honoured by 31.12.2010, but, thereafter, they neither paid the rent for using the said allotted space nor honoured the “Buyback Option. A legal notice dated 24.03.2011 (Annexure C-15) was also served upon the Opposite Parties, to redress the  grievance of the complainant but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.

3.             Complaint Case No.282 of 2011- Ms. Saloni Jain Vs. M/s Greenfield Sites Management Private Ltd., and Ors. - In this complaint also, the complainant applied for the allotment of  industrial work space/design Studio at “Industrial Zone”  in ‘FASHION TECHNOLOY PARK” vide receipt No.565 dated 27.09.2006 measuring 125 square feet, which was acknowledged by Opposite the Parties vide letter dated 27.09.2006(Annexure C-3) with confirmation of the “Buyback option”.  She was allotted the space measuring 125 square feet. She paid Rs.4,75,000/- against the total price of Rs.5 lacs. As in Complaint Case No.281 of 2011, she was also paid Rs.15,121/- as rent/compensation, by the Opposite Parties, for the period from 19.01.2010 to 31.03.2010 @ Rs.6250/- per month,  but thereafter they (Opposite Parties), neither paid the rent for using the said allotted space nor honoured the “Buyback option”. A legal notice dated 24.03.2011 (Annexure 14) was also sent to the Opposite Parties, to redress the grievance of the complainant, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.

4.             When the grievance of the complainants, was not redressed, left with no other alternative, they had to file the complaints, referred to above, under section 12 of the Consumer Protection Act, 1986 (herein after called as Act only).

5.             The Opposite Parties, in their joint written statements/versions pleaded that, since in both the cases,  the disputes, as per the agreement were referable to the Arbitration, the consumer complaints were not maintainable. It was further pleaded that the complainants, in both the complaints, did not fall within the definition of consumers, as they purchased the industrial units, for the purpose of running commercial activity, on a large scale, for earning huge profits. It was stated that the complainants, in both the cases, had not made the payment towards the said unit, as per the payment schedule. It was admitted that the “Developer Buyer Agreement” Annexure R-1, was executed between the parties. It was also admitted that “Buyback Option”, was given by the Opposite Parties, which was accepted by the complainants. It was also admitted that a sum of Rs.4,75,000/- each, as sale consideration, against Rs.5 lacs each, was paid by the complainants. It was further stated that on account of the global recession, during the year 2008-2009, the construction could not be started. It was admitted that the Opposite Parties paid Rs.15,121/-,  to each of the complainants, as rent/compensation, for the period from 19.01.2010 to 31.03.2010 @ Rs.6250/- per month, as per the terms and conditions of the agreement. It was further stated that the construction activity, at the site, where the said unit was located, was in full swing. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

6.             The Parties, led evidence, in support of their cases.

7.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the cases, the District Forum, accepted the complaints, in the manner, referred to, in the opening para of the instant order. 

8.             Feeling aggrieved, First Appeal No.3 of 2012 titled as Mrs. Meenakshi Tuli Pasrija Vs. M/s Greenfield Sites Management Private Ltd., and Ors., and First Appeal No. 4 of 2012 titled as    Ms. Saloni Jain Vs. M/s Greenfield Sites Management Private Ltd. and others, were filed by Mrs. Meenakshi Tuli Pasrija appellant/complainant and Ms. Saloni Jain, appellant/complainant, respectively, for enhancement of compensation and payment of rent/lease money, from 01.04.2010 onwards, whereas, First Appeal No.6, titled as M/s Greenfield Sites Management Private Ltd. and another V s. Ms. Saloni Jain and First Appeal No.7 of 2012, titled as M/s Greenfield Sites Management Private Ltd. and another V s. Mrs. Meenakshi Tuli Pasrija, were filed by M/s Greenfield Sites Management Private Ltd. and another, appellants/opposite parties No.1 and 2, (in original complaint), for setting aside the order of the District Forum, in complaint case nos. 281 of 2011 and 282 of 2011.

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

10.           The Counsel for the appellants/Opposite Parties No.1 and 2 (M/s Greenfield Sites Management Private Ltd. and Another, in First Appeal Nos. 6 and 7 of 2012), submitted that since no averment, was made, in both the complaints, by the respondents/complainants (Ms. Saloni Jain in First Appeal No.6 of 2012 and Mrs. Meenakshi Tuli Pasrija in First Appeal No.7 of 2012 and appellants/complainants in First Appeal Nos.3 and 4 of  2012, respectively), that the Studio, in question, was purchased by the complainants/appellants, for the purpose of, earning livelihood, by way of self employment, it could very well be said, that the same was purchased for running commercial activity, on a large scale, for earning huge profits. He further submitted  that   even  the   acceptance   of   the “Buy Back Option” of the respondents/Opposite Parties, by the appellants/complainants, clearly showed that the Studio was purchased by them (appellants/complainants), for the purpose of resale. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside. The question, that falls for consideration, is, as to whether, the Studio measuring 125 square feet, each, referred to above, was purchased by the appellants/complainants, in both the cases, for running commercial activity, on a large scale, for earning huge profits, or for earning their livelihood, by way of supplementing their income, by way of self employment. No doubt, no averment, was made by the appellants/complainants, in both the complaints, that the Studio each was purchased by them, for earning their livelihood, by way of self employment, yet, that fact alone, could not be said to be sufficient, to come to the conclusion, that they (appellants/complainants), purchased the Studios, aforesaid, for carrying on the commercial activity, on a large scale, for earning huge profits. As stated above, the size of the Studios, purchased by the appellants/complainants, is 125 square feet each. It means that the size of the Studios is very small. Even the price of the Studio was Rs.5 lacs each, out of which, a sum of Rs.4,75,000/- each was paid by the appellants/complainants. Admittedly, Annexure R-3 “Developer Buyer Agreement” was executed between the parties on 11.12.2006. In the said agreement, it was, in clear-cut terms, mentioned that the Developer had launched the scheme called “Small Investor Scheme”. A Studio each was purchased, by the appellants/complainants, in both the cases, in the aforesaid scheme. Whatever activity was to be carried on, in the said Studios, was to be on small scale.  From the evidence, produced, on record, and the circumstances of the case, it was established that the appellants/complainants, in both the cases, never intended to run commercial activity, in the Studios, on a large scale, with a view to earn huge profits. No evidence was produced, by the Opposite Parties, that the complainants were property dealers, dealing in the sale and purchase of real estate. No evidence was also produced, by the Opposite Parties, that the complainants were engaged, in any other commercial activities, as a result whereof, they are earning huge profits. In Haryana Urban Development Authority Vs. Usha Vohra, IV (2009) CPJ 305 (NC),  the complainant was allotted a booth in Sector 10, Panchkula, on 15.10.1991,  for which she had paid a total consideration of Rs.8,29,354.50, till 31.12.1996. There was no averment, in the complaint, that the same was purchased by the complainant, for earning her livelihood, by way of self employment. The complaint was decided in favour of the complainant, by the District Forum, directing the Opposite Parties, to refund the excess amount charged, and an appeal was preferred, before the State Consumer Disputes Redressal Commission, which was dismissed. Feeling aggrieved, a Revision Petition was filed by the Haryana Urban Development Authority. During the course of Revision Petition, an argument was advanced, that since the complainant was allotted booth, which was obviously for commercial purpose, she did not fall within the definition of a consumer. The National Consumer Disputes Redressal Commission, in the aforesaid case, held that the mere fact that the respondent/complainant, had been allotted a booth site, no conclusive finding, could be recorded about the same (booth) having been allotted for commercial consideration, and, not for earning livelihood, as that would require a lot of consideration to unsuit her. In Remington Rand of India Ltd., & Ors. Vs. Pioneer Typewriter Co. I (1996) CPJ 317 (NC),  a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, New Delhi, the complainant purchased a Paper Copier Machine, from the Opposite Party, which did not give satisfactory service. No averment, was made, in the complaint, that the Paper Copier Machine, had been purchased by the complainant, for earning livelihood, by way of self employment. Ultimately, the machine became defective, and the complaint for replacement of the same, was filed. The State Consumer Disputes Redressal Commission, decided the complaint, in favour of the complainant. Feeling aggrieved, an appeal was filed by the Opposite Party/appellant, which took up the plea, that the complainant/respondent,  did not fall within the definition of a consumer, as the machine was purchased by it, for running the business, on a large scale, for earning huge profits. In these circumstances, the National Consumer Disputes Redressal Commission held that the firm of the complainant,  was indeed a small unit, and just because  it was a partnership firm, it could not be concluded that it was engaged, in a large scale commercial activity, for earning huge profits. It was further held that since loan was obtained by the complainant/respondent, from the Bank, for purchasing the machine, which fact, in itself, clearly proved that the complainant was to run a small venture, to earn its livelihood, by way of self employment. In Jindal Oil and Ginning Factory Vs Punjab Small Industries & Export Corporation (2009)CPJ26(Pb), a case decided by the Punjab State Consumer Disputes Redressal Commission, Chandigarh, an application for allotment of an  industrial plot, was made by the complainant, but no averment was made, in the complaint, by the complainant, that it was purchased with a view to earn livelihood, by way of self employment. However, the Punjab State Consumer Disputes Redressal Commission, at Chandigarh, held that when the industrial plot was not allotted to the complainant, it sought refund, and, under these circumstances, it fell within the definition of a ‘consumer’.

11.           As per  the explanation appended  to clause (ii) of Section2(d) of the  Act ‘commercial purpose’ does not include use by a person of goods bought and used by him, and services availed of  by him exclusively, for the purpose of  earning his livelihood, by means of  self-employment.  It   is   not the value of the goods, that matters, but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought, must be used, by the buyer himself, by employing himself, for earning his livelihood. A few more  illustrations would serve to emphasis that   a person who purchases an auto-rickshaw, to ply it, himself, on hire, for earning his livelihood, would be a consumer. Similarly, a purchaser of a truck, who purchases it, for plying it as a public carrier, by himself, would be a consumer. A person, who purchases a lathe machine, or other machine, to operate it himself, for earning his livelihood, would be a consumer. In the above illustrations, if such a buyer, takes the assistance of one or two persons, to assist/help him, in operating the vehicle or machinery, he does not cease to be a consumer. As against this, a person who purchases an auto-rickshaw, a car or a lathe machine, or other machine, to be plied or operated exclusively by another person, would not be a consumer. This is the necessary limitation, flowing from the expressions "used by him", and "by means of self-employment" in the explanation. Similar principle of  law was laid down in Laxmi Engineering Works Vs P.S.G. Industrial Institute, 1995(2) Consumer Law Today 474(SC). In M/s Cheema Engineering Services Vs Rajan Singh 1996(2)Consumer Law Today 397, a case decided by a Full Bench of the Hon’ble National Consumer Disputes Redressal Commission, the complainants, purchased a brick manufacturing machine, to operate himself, for earning his livelihood, by taking assistance of one or two persons. Under these circumstances, it was held that he fell within the definition of a ‘consumer’.  The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. As stated above, these were two small units, bearing 125 square feet, each the price whereof was Rs.5 lacs, each out of which Rs.4,75,000/-, each were paid by the appellants/complainants. The size of both the units and the small consideration, for which the same were purchased, in itself, were sufficient to prove, that the same were purchased for running a small commercial activity, to earn livelihood, by way of self employment.  It may be stated here, that from the very beginning, it was not the intention of the appellants/complainants, in both the cases, to resell the units, which were purchased by them. The respondents/opposite parties, as per the terms and conditions of the agreement, themselves, gave “Buyback Option” to the appellants/complainants. It was the said offer, given by the respondents/Opposite parties, in terms of the agreement, that the appellants/complainants accepted the same. Had it been the intention of the appellants/complainants, right from the very beginning, to resell the Studios, in question, then the matter would have been different. Under these circumstances, the District Forum, was also right, in holding so. The submission of the Counsel for the respondents/Opposite Parties No.1 and 2, does not appear to be correct.

12.           . The Counsel for respondents no.1 and 2/opposite parties no.1 and 2, placed reliance on Ishwar Singh Vs. Dakshin Haryana Vidyut Prasaran Nigam Ltd., 2011(3) CLT 37, Birla Technologies Ltd., Vs. Neutral Glass and Allied Industries Ltd. 2011(2) CLT 45 (S.C.) and Nijjar Cold Storage, Kapurthala and another Vs. Jarnail Singh, 2009(1) CLT 462, to contend that the complainants did not fall within the definition of consumers, and, as such, the order of the District Forum, is illegal and invalid. The submission of the Counsel for respondents no.1 and 2/Opposite Parties no.1 and 2, does not appear to be correct. In Ishwar Singh`s case (supra) Atta Chakki was got installed, by the complainant, for commercial purpose, for earning profits. No material was produced, by him, to prove that the same was installed, only for earning his livelihood, by way of self- employment. It was, under these circumstances, held by the National Consumer Disputes Redressal Commission, that the complainant did not fall within the definition of a consumer. In Birla Technologies Ltd.`s case (supra), the appellant was to develop a software for the respondent, which was to take care of financial accounting, production, marketing, purchase, stores/inventory, fixed assets, pay roll and personnel system of the respondent/complainant, a Limited Company. The cost of the said software installed was Rs.36 lacs. The system was not working properly. When the grievance of the complainant, was not redressed, it filed a complaint. The State Consumer Disputes Redressal Commission, dismissed the complaint, holding that the complainant did not fall within the definition of a consumer. Feeling aggrieved, an appeal was filed before the National Consumer Disputes Redressal Commission. The National Consumer Disputes Redressal Commission, held that the complainant fell within the definition of a consumer. Ultimately, the Opposite Parties/appellant, filed Civil Appeal  No.10650 of 2010, before the Supreme Court of India. The Hon`ble Supreme Court held that the complainant did not fall within the definition of a consumer, on the ground, that the goods were bought, and the services were hired by it, for commercial purpose, to earn huge profits. In Nijjar Cold Storage, Kapurthala`s case (Supra), no averment, was made in the complaint, by the complainant, that the cold storage was being used for keeping potatoes of the customers, for earning his livelihood,  or that he was an agriculturist. The facts of the case and the evidence, on record, proved that it was a large scale commercial activity, which was being run, by the complainant, for earning huge profits, and, as such, this Commission held that the complainant did not fall within the definition of a consumer. The facts of the aforesaid cases, are completely distinguishable, from the facts of the instant case. In the aforesaid cases, mentioned in this paragraph, goods purchased or the services hired by the complainants, were for running commercial venture, on a large scale, to earn huge profits. It was, under these circumstances, held, in  the aforesaid cases, that the complainants did not fall within the definition of consumers. In the instant case, as stated above, two Studios of 125 square feet, each for a small consideration of Rs.5 lacs, each were purchased by the complainants/appellants, and, no commercial activity, on a large scale, could be run therein, for the purpose of earning huge profits, but, on the other hand, these were only purchased to earn livelihood, by way of self employment. The “Buyback Option”, given by the Opposite Parties, as stated above, was accepted by the appellants/complainants, and they never intended from the very beginning, to resell the studios. Since, the facts of aforesaid cases, are clearly distinguishable, from the facts of the instant case, no help, therefore, can be drawn by the Counsel for respondents no.1 and 2/Opposite Parties no.1 and 2, from the principle of law, laid down in the same.  The submissions of the Counsel for respondents no.1 and 2/opposite parties no.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected

13.           It was next submitted by the Counsel for the appellants  no.1 and 2/Opposite Parties No.1 and 2 (M/s Greenfield Sites Management Private Ltd. and Another, in First Appeal Nos. 6 and 7 of 2012 and respondents no.1 and 2/Opposite Parties No.1 and 2 in First Appeal Nos.3 and 4 of 2012), that since, according to Clause 22 of the “Developer Buyer Agreement” Annexure R-1, in case of dispute, between the parties, the matter was referable to the Arbitration, and, as such, both the complaints were not maintainable. He further submitted that the District Forum, was wrong, in coming to the contrary conclusion. The submission of the Counsel of the appellants/opposite parties No.1 and 2, in this regard, does not appear to be correct. With a view to appreciate the controversy, in  its proper perspective, reference to Section 3 of the Consumer Protection  Act,1986, is required to be made, which reads as under ;

 “3.Act not in derogation of any other law.—

 The provisions of this Act shall be in addition to and not in  derogation of the provisions of any other law for the time being in  force.”

Section 3 of the Act, is worded, in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force.  The mere fact that  the remedy of Arbitration, has been  provided, in the Agreement dated 16.12.2006,  that  would not oust the jurisdiction of the Consumer Fora, in view of Section 3 of the Act.  Similar principle of law, was laid down in  Fair Engg. Pvt. Ltd. & another Vs N.K.Modi (1996)6  SCC385  and  C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC233.  In this view of the matter, the submission of the Counsel for the appellants/opposite parties no.1 and 2, being devoid of merit, must fail, and same stands rejected.

14.           The Counsel for the appellants/complainants in First Appeal No.3 of 2012 titled as Mrs. Meenakshi Tuli Pasrija Vs. M/s Greenfield Sites Management Private Ltd., and Ors., and First Appeal No. 4 of 2012 titled as  Ms. Saloni Jain Vs. M/s Greenfield Sites Management Private Ltd. and others,  submitted that as per Clause 28 of the “Developer Buyer Agreement” Annexure R-1, if there was delay in handing over the possession of the unit(s) i.e. beyond 30 months, from the date of start of construction, except for the reasons, beyond the control of the Developer, it (Developer), shall compensate the Buyer(s), by paying him/her Rs.50 per square feet, per month of the super area of the unit(s) as compensation. He further submitted that even compensation @Rs.6250/- per month, from 19.01.2010 to 31.03.2010, was paid to the appellants/complainants by the Opposite Parties, but thereafter they (Opposite Parties), failed to pay so. Admittedly, the possession was not delivered to the appellants/complainants, i.e. Mrs. Meenakshi Tuli Pasrija  and Ms. Saloni Jain, within  30 months, from the date of start of construction. The respondents/ Opposite Parties No.1 and 2 (in First appeal nos.3 and 4 of 2012) gave “Buyback Option” to the appellants/complainants, which they accepted. Since, possession had not been delivered to the complainants, within  30 months from the date of start of construction, the respondents/ Opposite Parties, were liable to pay compensation @Rs.6250/- i.e. [Rs.50 per square feet per month of the super area], in respect of each unit, to the complainants. This amount was also paid by the respondents/opposite parties from 19.01.2010 to 31.03.2010, as they accepted their liability, to pay this amount, but later on, they failed to pay the same from 01.04.2010 @Rs.6250/- per month, in respect of each unit, but the District Forum, did not record any finding, in respect thereof. In our considered opinion, Opposite Parties No.1 and 2/respondents (in F.A. Nos.3 and 4 of 2012), were liable to pay compensation @Rs.6250/- per month, in respect of each unit, from 01.04.2010 to 31.05.2011, to the complainants as claimed by them. The complainants are, thus, entitled to the same. The order of the District Forum, needs modification, in this regard.

15.           The District Forum, was right, in holding that Opposite Parties No.1 and 2, were deficient, in rendering service, as also indulged into unfair trade practice, by not making payment of the amount of Rs.7,50,000/- each, the amount, which was required to be paid by them, on account of the “Buyback Option”, accepted by the appellants/complainants.

16.           The appellants/ complainants also claimed enhancement of compensation. The District Forum, after taking into consideration the totality of facts and circumstances, as also the evidence, on record, was right in coming to the  conclusion that the amount of Rs.50,000/- each, as compensation for mental agony and physical harassment caused to the complainants at the hands of the Opposite Parties, if awarded, in both the complaints, would be fair, reasonable and adequate. No ground is made out, for enhancement of compensation, awarded by the District Forum.

17.           No other point, was urged, by the Counsel for the parties.

18.           For the reasons recorded above, First Appeal No.3 of 2012 titled as Mrs. Meenakshi Tuli Pasrija Vs. M/s Greenfield Sites Management Private Ltd., and Ors. and First Appeal No. 4 of 2012 titled as  by  Ms. Saloni Jain Vs. M/s Greenfield Sites Management Private Ltd. and others are partly accepted, against respondents no.1 and 2/opposite parties no.1 and 2,  with no order as to costs, with the modification, in the following manner:-

(i)              Respondents No.1 and 2/Opposite Parties No.1 and 2, in First Appeal No.3 of 2012 titled as Mrs. Meenakshi Tuli Pasrija Vs. M/s Greenfield Sites Management Private Ltd., and Ors., and  First Appeal No. 4 of 2012 titled as Ms. Saloni Jain Vs. M/s Greenfield Sites Management Private Ltd. and others, are directed to pay compensation/rent @Rs.6250/- per month, to the complainants/appellants, in respect of each unit, from 01.04.2010 to 31.05.2011, as claimed in the complaints, within thirty days, from the date of receipt of a certified copy of the order, failing which this amount shall carry interest @12% P.A. from 01.04.2010, till realization.

(ii)             The other reliefs granted and directions given by the District Forum, shall remain intact.

19.           First Appeal Nos. 3  of 2012 and 4 of 2012, are dismissed, with no order as to costs, against respondents no.3 and 4/Opposite Parties No.3 and 4

20.           First Appeal No.6, titled as M/s Greenfield Sites Management Private Ltd. and another V s. Ms. Saloni Jain and First Appeal No.7 of 2012, titled as M/s Greenfield Sites Management Private Ltd. and another V s. Mrs. Meenakshi Tuli Pasrija, being devoid of merit, are dismissed, with no order as to costs.

21.           The original order, shall be placed, in Appeal File No.3 of 2012.

22.           Certified copy of the order, shall be placed, in each of the remaining Appeal files. 

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

24.           The files be consigned to Record Room, after completion

Pronounced.

02.04.2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

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