Delhi

StateCommission

CC/34/2014

REENA JOON & ANR. - Complainant(s)

Versus

M/S ARDEE INFRASTRUCTURE PVT. LTD. - Opp.Party(s)

10 Apr 2017

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                     Date of Arguments: 10.04.2017

     Date of Decision:     18.04.2017

Complaint No. 34/2014

In the matter of:

 

1. Mrs. Reena Joon

    W/o Shri Jasbir Singh Joon

 

2.  Shri Jasbir Singh Joon

    S/o Late Kanwal Singh Joon

    Both R/o H.No. A-801

    Manisha Tower, Plot No. 7-B

    Sector-23, Dwarka

    New Delhi                                                                 …..Complainants

 

 

                                      Complaint No. 36/2014

 

1.       Shri Balwan Singh Kaushik

          S/o Shri Radhey Shyam

 

2.       Smt, Asha Kaushik

        W/o Shri Balwan Singh Kaushik

           

 

          Both R/o B-500, Ground Floor

          Bellevue Tower, 5, Central Park-2

          Sohna Road, Setor 48

Gurgaon-122018 .                                                   …..Complainants

 

 

                             Versus

 

M/s Ardee Infrastructure Pvt. Ltd.

Office at : Dr. Gopal Dass Bhawan

28, Barakhamba Road

New Delhi-110001.

Through Managing Director                                ……Opposite Party       

         

 

CORAM

 

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?  Yes

2.      To be referred to the reporter or not? Yes

SHRI O.P.GUPTA

JUDGEMENT

          This order shall dispose of two complaints bearing No. 34/2014 & 36/2014 titled as Ms. Reena Joon & Anrs. Vs. Ardee Infrastructure Pvt. Ltd. and Shri Balwan Singh Kaushik & Anrs. Vs. Ardee Infrastructure Pvt. Ltd. respectively.  The reason being  that project in which bookings are done, questions arising are same.

2.      In complaint No. 34/14 the facts are that complainants booked shop.  They were allotted  Shop No. B-08GF on ground floor having area of 72.16 sq. mtr. for total cost of Rs. 31,43,000/- in Plaza Gardenia in Ardee City at  Gurgaon vide agreement dated 12.12.03. The shop was purchased for earning livelihood by the complainants.  The complainants paid down payment in full within the stipulated timing as per builder buyer agreement.  As per clause 12 of the agreement possession was to be delivered within 30 months from the date of booking i.e. 31.10.03.  OP had undertaken to pay penalty to the complainants @ Rs. 30/- per sq. ft.per month, in case of delay in handing over possession.  The complainants wrote letters dated 12.03.07, 16.04.07,11.07.07, 25.05.09 and 17.07.09 in addition to e-mails for possession of the shop at the earliest.  Vide letter dated  14.04.06 OP offered to lease out the shop @ Rs. 47.50 per sq. ft. and sent  a performa to sign, besides interest free security equivalent to three months rent, besides escalation in rent @ 15% after three years for lock in period of 6 years. The complainants were not interested to lease out their premises so they did not sign the performa.  The complainants would have earned Rs.36,860/- per month @ Rs. 47.50 per sq. ft. and they could have earned Rs. 54,320/- p.m. from 1.12.12 @ Rs. 70/- per sq. ft.  They claimed compensation  of Rs. 2,00,000/- for mental torture, harassment and agony suffered by them. Hence this complaint for directing OP to hand over possession of the shop in question, to pay rent as offered by it and compensation.

Complaint No. 36/2014

          In complaint No. 36/2014 Shop No.B-01 was booked at total cost of  Rs. 22,00,000/- excluding Rs. 1,00,000/- towards one car parking.  Rest of the facts are same as in complaint No. 34/2016.

2.      OP filed WS raising preliminary objection that this Commission has no pecuniary jurisdiction.  The shop does not fall within the definition of goods because of immovable property. The complainant has invoked wrong jurisdiction of this Commission by counting price  of shop as price of goods.  The compensation claimed is Rs. 2,00,000/- only. Section 2(i) of Consumer Protection Act defines goods.  As per meaning of the said term under section 2(7) Sale of goods Act  ‘goods’ mean every kind of movable property. This Commission has no territorial jurisdiction as property is situated in Gurgaon.  As per section 16 CPC jurisdiction vests with Gurgaon forum only.  OP does not carry on work of housing construction within the territory of this Commission, It has only one branch/site office site which is at Gurgaon. Cause of action, if any, arose in Gurgaon. The complainants are not consumers because they purchased commercial shop for making his profit by giving same on rent or with the hope that prices of real estate would rise in near future and they could exit at premium by earning of profit.  The term ‘service’ under section 2(1)(0) Consumer Protection Act covers only a housing construction and not non-residential construction such  as shop  The complaint is barred by limitation, there is delay of about 8 years. OP sent letter dated 14.04.10 for renting permission.  The complainant refused and therefore cause of action if any arose in April 2004 for getting the possession. This Commission is not an appropriate place to entertain the complaint as complicated issues cannot be decided in summary proceedings.

3.      On merits the OP stated that fact of purchase of commercial shop for earning livelihood has been mentioned by the complainants for the first time before this Commission for covering themselves under the definition of Consumer in CP Act.  Payment was not made as per schedule and the complainant was defaulter. OP could have terminated the agreement on ground of various defaults but still it did not do so.  It denied that it has to pay Rs. 30/- per ft. for delay in handing over possession.

4.      Complainants filed their evidence by affidavit. OP filed its evidence by affidavit.  Both the parties filed written arguments.  We have gone through the material on record and heard the arguments.

5.      Regarding pecuniary jurisdiction it may be observed that jurisdiction depends on the aggregate value of the property claimed by the complainant and compensation.  Here the complainant has claimed possession of the shop agreed to be purchased for Rs. 31,43,000/- The same alongwith compensation is within the pecuniary jurisdiction of this Commission.

5.        As regards territorial jurisdiction it may be observed that agreement copy of which is at page 7 of the bunch of complaints shows that the agreement was executed at Delhi on 12^th day of December 2003.  Place of execution of agreement gives rise to part of cause of action and that alone is sufficient for confering jurisdiction as per section 17 Consumer Protection Act.

6.      The third plea of the OP is that complainants having agreed to purchase shop are not consumers.  The same is bereft of any merits. The complainants have specially pleaded in the complaint that they booked a shop for earning livelihood.  To say that this averment has been made for the first time in complaint is of no help to the OP as the complainants have no occasion to do so before filing of the complaint.

7.      The objection of limitation is not sustainable because in case of failure to give possession, the cause of action is continuous.  For this reference may be made to decision of National Commission in Vasant Mahadev Rao Kate vs. Shastri Grih Nirman II (2015) CPJ 4.

8.      The counsel for the OP also submitted that this Commission cannot go beyond the agreement.  In support of his submission he relied upon decision of National Commission in Sahara India Commercial Corporation Limited vs. C.Madhubabu II (2011) CPJ 3.  That was a case pertaining to forfeiture of 10% of the cost of flat and the same was allowed as per agreement .  That has no relevance in the present case.

9.      The counsel for OP also relied upon decision of Maharashtra State Commission in complaint case No. 13/10 titled as Mainframe  Premises Cooperative Society Ltd. vs. Royal Farms India Pvt. Ltd. decided on 28.01.13 and FA No,. 577/11 titled as Shri Hindu Rao Gojabe Ghorpade vs. M/s Kohinoor Enterprises Builders and Buyers decided on 21.03.13.  In the first cited case there was no averment that booking was done for earning livelihood.  In the second case the OP has already refunded the entire consideration. 

10.    Counsel for complainants urged that complainants are not interested in refund of amount. They are interested in possession of flat. Counsel for the complainant relied upon the decision of National Commission in Classic Homes Apartment Buyers Association vs, Build More India Ltd. IV (2012) CPJ 14 to buttress the argument that nothing can be added or detracted from the terms and conditions of the contract. A decision is a precedent for what it decides and not what follows from it.  In para 9 of the judgement it has been noticed that at the time of filing WS 48 flats were ready for occupation, some of them have already been occupied. 

11.    We are unable to agree. Court cannot compel a party to do an impossible act.  When the OP could not construct shops in 14 years, they cannot be expected to construct the same in six months or a year.

12.    In case cited by counsel for complainants 48 flats were ready by the time of filing WS and most of them had been occupied as per para 9 of judgement.  So the same is distinguishable.

13.    The counsel for the complainant relied upon decision of National Commission in CC No. 427/14 titled as Satish  Kumar Pandey vs. Unitech Home III(2015) CPJ 440 to make out that most of the builder buyers agreement are one sided.  They are loaded in favour of the builder.  The court cannot lose sight of the fact that such agreement s are between two unequal and are unfair which cannot be allowed to stand.       

14.    Any how we do not feel that complainants can claim the assured rent offered by the OP because complainants did not agree to the same.  Rather they wrote back to the OP that they were not interested in leasing out their property. When property was not let out, there is no occasion for granting assured rent.

15.    Similarly penalty for late possession can arise only when possession is given.  In this reliance may be placed on decision of National Commission in FA 75/14 titled as Reliance Infrastructure Vs. Kangaroo Studios decided on 23.09.15. 

16.    Now coming to the rate of interest, it may be observed that agreement does not provide for any rate of interest payable by builder to the purchaser.  So interest can be awarded at reasonable rate only.  In Satish Kumar Pandey vs. Unitech Supra it was held that 12% simple interest takes care of additional burden and some monitory compensation for suffering.

20.    As a result of the above discussion, the OP is directed to refund the sum paid by the complainant alongwith interest @ 12% per annum from the date of payment till the date of refund, within 45 days.

          One copy of the order be placed on file No. 36/2014.

          Copy of the order be sent to both the parties free of cost.

 

 

(ANIL SRIVASTAVA)                                                                       (O.P.GUPTA)

MEMBER                                                                                           MEMBER(JUDICIAL)

 

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