BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.287 of 2014
Date of institution: 06.05.2014
24.08.2015
Date of Decision: 09.02.2016
Dr. Geetanjali wife of Dr. Rakesh Arora resident of 46/2, Passi Road, Patiala.
……..Complainant
Versus
M/s. Bajwa Developers Ltd. having its registered office at Sunny Enclave, Desu Majra, Tehsil Kharar, District SAS Nagar, Mohali through its Managing Director Shri Jarnail Singh Bajwa.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Abhishek Arora, counsel for the complainant.
Shri Kulwinder Singh, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
(a) to refund the amount already paid by the complainant alongwith interest @ 24% per annum from the date of receipt till realisation.
(b) to pay Rs.2,00,000/- as damages on account of mental agony, harassment and monetary loss and costs of litigation.
The case of the complainant is that the complainant on 20.04.2011 booked two bedroom flat No.(773) 1573 having total area of 450 sq. ft. by paying Rs.1.00 lac. The total sale consideration of the flat was Rs.12,00,150/-. The possession of the flat was to be handed over by March, 2013. At the time of booking, the OP assured that it has necessary approvals from the Govt. and clearance from the GMADA. The complainant made further payment of Rs.1.00 lac each on 30.04.2011 and also paid Rs.50,000/- on 02.05.2011. Thus, the complainant paid a total sum of Rs.3.50 lacs to the OP. Thereafter an agreement to sell was executed on 09.05.2011 between the complainant and the OP. The complainant was then asked to make further payment of Rs.1,80,000/- which the complainant paid to the OP on 26.09.2011. The complainant had time and again approaching the OP to inform her the status of construction of the flat but the OP had been giving false assures to the complainant. The date of possession was extended by the OP number of times and lastly upto 15.10.2012. Since the construction of the flat had not started till date, the complainant requested the OP to refund her money alongwith interest which the OP has failed to refund, thus necessitating the complainant to file the present complaint.
2. The OP in the preliminary objections of the written statement has pleaded that this Forum has no pecuniary jurisdiction to try the complaint. There is no customer service provider relationship between the complainant and the OP. The complainant is not a consumer as per the provisions of Consumer Protection Act. The complainant has failed to pay the installments as per the agreement. On merits, it is pleaded that nowhere in the agreement the date for handing over the possession has been provided. The installments were to be paid upto 05.09.2011 but the complainant has not paid the installments as per the schedule. The relationship between the complainant and the OP is governed by the agreement to sell dated 05.09.2011. As per Clause 3 of the agreement if the installment is not paid within 15 days of the stipulated date the entire biana amount shall be considered forfeited. The OP has never refused to hand over the possession of the flat. The possession would be handed over as and when the construction is complete. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. Thereafter the parties compromised the matter and in pursuance of the compromise, the complainant received two cheques No.631428 dated 06.08.2014, 631429 dated 06.09.2014 for Rs.2,15,000/- each from the OP. The amount of these cheques was realized by the complainant. However, the counsel for the complainant stated that Rs.50,000/- was still to be paid by the OP. Since the complainant has not attached any receipt for payment of Rs.50,000/- to the OP, therefore, vide order dated 25.11.2014, the complaint being bereft of any merit qua claim of Rs.50,000/- was disposed off.
4. Feeling aggrieved against the order dated 25.11.2014, the complainant preferred appeal before the Hon’ble State Commission and the Hon’ble State Commission vide order dated July 20, 2015 accepted the appeal and remanded back the complaint to this Forum for deciding the controversy regarding the sum of Rs.50,000/- after giving due opportunities to the parties to produce evidence in support of their respective averments.
5. The complainant proved on record affidavit Ex.CW-1/1, and tendered in evidence copy of agreement to sell dated 09.05.2011 Ex.C-1.
6. Evidence of the OP consists of affidavit of Jarnail Singh Bajwa, Ex.OP-1/1.
7. We have heard learned counsel for the parties and have also gone through the written arguments filed by them.
8. Before we decide the issue on merits i.e. whether the complainant is entitled to refund of Rs.50,000/-, it will be appropriate to decide the preliminary objections raised by the OP i.e. regarding maintainability of the present complaint as the complainant is not a consumer.
9. As per the OP, the present complainant i.e. Dr. Geetanjali Arora is the wife of Dr. Rakesh Arora who is complainant in complaint No.286 of 2014 both husband and wife booked two separate flats and executed separate agreements with the OP and as per Hon’ble National Commission decision in Jagmohan Chabra and another Vs. DLF Universal Ltd. IV (2007) CPJ 199 even when a consumer has booked more than one unit of residential premises, it amounts to booking of such premises for investment/commercial purposes and, therefore, the complaint is not maintainable under Consumer Protection Act, 1986. The decision of the Hon’ble National Commission in Jagmohan Chabra and another Vs. DLF Universal Ltd. (supra) has been upheld by the Hon’ble Supreme Court in Civil Appeal No.6030-5031 of 2008 decided on 29.09.2008.
10. While arguing both the complaints, i.e. the present complaint and complaint No.286 of 2014, the counsel for the complainants has admitted relationship of both the complainants as husband and wife. Thus, it is ample clear that both husband and wife have booked two separate flats for residential purposes with the OP and signed separate agreements, though they have filed two separate complaints. The ratio of the decision of Hon’ble National Commission in Jagmohan Chabra and another Vs. DLF Universal Ltd.(supra) is fully applicable to the facts of the present complaint. Therefore, two residential flats have been booked by the complainant and her husband for investment/commercial purpose and the complaint and the complaint is not maintainable under the Consumer Protection Act, 1986. For our above findings we are fortified by the decision of Hon’ble National Commission in Chilkuri Adarsh Vs. EssEss Vee Constructions, III (2012) CPJ 315, Shri M. Vittal Rao and others Vs. M/s. Brindavan Builders Pvt. Ltd., 2008 (1) CPR 218 and Rameshwaran and others Vs. Sujith Kumar Banarjee and others in F.A. No.12 of 2003 decided on 04.07.2005.
11. The complaint, therefore, is disposed of and returned to the complainant with the liberty to avail legal remedy available under law before any appropriate Forum/Legal Authority. Certified copies of the order be furnished to the parties forthwith free of cost. The Office is directed to retain photocopies of the complaint and documents and thereafter the file be consigned to the record room.
Pronounced.
February 09, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
