DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Wg.Cdr.J.Biswas, Qtr No.1295, Defence Service Officers Hostel, Sector 2, R K Puram, New Delhi, now residing at 16/200, Arjun Vihar, Delhi Cantt. New Delhi-110010.

…..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 0147 through its Managing Director.

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

……Opposite Parties

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

Argued by: Sh.Rajiv Gupta, Counsel for complainant.

                     Sh.K.S.Lang, Counsel for OP No.1.

                     Sh.Shireesh Gupta, Counsel for OP No.2.

PER P.L.AHUJA, PRESIDENT

1.                Wg.Cdr.J.Biswas, complainant has filed this consumer complaint under Section 12 & 13 of the Consumer Protection Act, 1986, against M/s Greenfield Sites Management Private Limited & Anr. - Opposite Parties (hereinafter called the OPs), alleging that the OPs floated a scheme for allotment of unit in Design Studio in Industrial Complex/Zone in the Industrial Knowledge (Fashion Technology) Park, Sector 90, Mohali. The complainant submitted his application form No.102761 vide receipt bearing No.626 dated 14.10.2006 and the same was confirmed vide letter dated 14.10.2006 – Annexure C-1. The complainant was informed that he was eligible for buy back option. The complainant had made the application for allotment under Small Investors Scheme and copy of the Information Memorandum for Small Investors is Annexure   C-2. Subsequently the complainant made payment of about Rs.4,75,000/- with OPs and the copies of the receipts are Annexure C-3 to C-6. An area measuring 125 sq.ft. super area in the Design Studio No.9 in the building called Block A1 on 6^th floor in the Industrial Knowledge (Fashion Technology) Park, Sector 90, Mohali was allotted to the complainant vide allotment letter dated 9.12.2006, copy of which is Annexure C-7. Copy of Development Buyer Agreement is Annexure C-8. The complainant invested the amount for using the premises for his own use and for other members of the family and the application was not given for commercial purpose/resale purpose. It has been further alleged that vide letter dated 22.6.2009, copy of which is Annexure C-9, the company offered the complainant to buy back his unit @Rs.7.50 lacs per single unit. In response to that letter, the complainant vide his letter dated 9.9.2009 – Annexure C-10 informed that he wanted to avail of the buy back option and requested to reimburse the amount due at the earliest.  As per the OPs, the date of start of construction was 19.7.2007 and 30 months period for completion of construction ended on 18.1.2010. After 18.1.2010, the OPs are liable to make payment of Rs.50/- sq. ft. per month on account of non construction/completion of construction to the complainant but the OPs have given only a small amount of Rs.15,121/- as compensation for the period from 19.1.2010 to 31.3.2010 and Rs.18,750/- for the period from 1.4.2010 to 30.6.2010 under Clause 28 of the agreement on account of non start/completion of construction. The complainant has alleged deficiency in service on the part of OPs. The complainant has made a prayer for a direction to the OPs to pay an amount of Rs.7,50,000/- in the account of buy back option ; pay Rs.6250/- per month w.e.f. July, 2010 onwards for the delay in starting the construction along with interest ; pay Rs.50,000/- as compensation for mental agony and harassment caused to him and pay legal expenses to the tune of Rs.10,000/-.

2.                OP No.1 in its written reply has contended that it has no role in the construction work of industrial unit at FTP, Sector 90, Mohali and it is also not responsible for delivering the possession of the unit to the complainant. It has been stated that both the companies have their separate status and separate liabilities, separate assets and separate work and OP No.1 is not responsible for any act done by OP No.2. It has been admitted that unit has been allotted by OP No.2 to the complainant and OP No.1 offered the buy back option to the complainant vide Annexure C-9. It has been stated that the complainant had purchased the industrial unit from OP No.2 and not from OP No.1. It has been further stated that OP No.1 has not received any letter dated 9.9.2009 from the complainant and the buy back option is not applicable.

3.                OP No.2 has pleaded in its written reply that the complainant does not fall within the definition of term ‘consumer’ because the industrial units were to be located in an area specifically for industrial activities and this Forum has no jurisdiction to decide the complaint. It has been stated that there was no agreement between the parties with regard to the buy back offer. It has been averred that the offer mentioned by the complainant was made by OP No.2 (OP No.1?). It has been stated that the amount claimed by the complainant against the purchase offer given by OP No.2 (OP No.1?) can be answered only by OP No.2 (OP No.1?) and the answering OP cannot answer the same.

4.                The parties led evidence in support of their contentions.

5.                We have appraised the entire evidence and heard the arguments addressed by the learned Counsel for the parties.

6.                It is proved from the copy of the letter dated 14.10.2006 – Annexure C-1 that the complainant made an application for Small Investment Invitation Program in Fashion Technology Park and OP No.2 acknowledged the receipt of his application and informed him that his application was eligible for the buy back option. The Information of Memorandum for Small Investors  - Annexure C-2 also shows that the first 500 units sold shall be entitled to a buy back option by the company @Rs.7,50,000/- per unit. The copies of receipts Annexure C-3 to C-6 reveal that the complainant had made payment of an amount of Rs.4,75,000/- to OP No.2. The copy of allotment letter dated 9.12.2006 – Annexure C-7 also shows that OP No.2 allotted one 125 sq. ft. of super area in the Design Studio No.9 to the complainant. The complainant also executed a Developer Buyer Agreement – Annexure C-8 with OP No.2. The copy of letter dated 22.6.2009 – Annexure C-9 shows that OP No.1 wrote about the offer of buy back of the complainant’s unit @Rs.7.50 lacs per single unit and it was intimated that since the date of start of construction was 19.7.2007 and 30 months get completed on 18.1.2010, therefore, if the complainant wished to avail the buy back offer, he should write to them at least one month before that date. The copy of letter dated 9.9.2009 – Annexure C-10 shows that the complainant sent a letter to OP No.2 intimating his acceptance for buy back option and they were asked to send the buy back amount cheque. The copy of letter dated 30.11.2011 – Annexure C-11 shows that the complainant was sent a cheque of Rs.33,871/- only as compensation from 19.1.2010 to 30.6.2010 by OP No.2. The circumstances show that the complainant has not been paid an amount of Rs.7,50,000/- towards buy back option so far nor he has been paid the compensation @Rs.50/- per sq. ft. for non construction/non completion of construction as per Clause 28 of the agreement.

7.                The first ground on which the OPs have opposed the complaint is that the complainant does not fall within the definition of consumer as defined in the Consumer Protection Act. It has been urged that the complainant entered into an agreement to purchase an industrial unit located in an area specifically for industrial activities. It has been further urged that the complainant has also entered into an Agreement to Lease the industrial unit to another party for profit. The learned Counsel for OP No.2 has cited Rajasthan State Industrial Development and Investment Corporation Ltd. (RIICO) Vs. M/s Diksha Enterprises, Revision Petition No.3811 of 2007 decided by the Hon’ble National Commission on 9.7.2010 and has argued that the intention of the complainant was far from earning his livelihood by means of self employment but was purely intended to make profit and since the said design studio was purchased for a commercial purpose, the dispute does not fall within the domain of Consumer Fora.

8.                We have carefully considered the above arguments. The ruling cited by the learned Counsel for the complainant is not applicable to the facts of the present case because in that case the complainant had applied for an industrial plot of 4000 sq. meters for the purpose of setting of a factory for manufacturing S.O.Dyes. In the instant case, the complainant agreed to purchase only an area measuring 125 sq. ft. super area under the Small Investor Scheme. The complainant has specifically pleaded in the complaint that he invested this amount for using the premises for his personal use and for other members of the family and application was not given to purchase it for commercial purpose/resale purpose, otherwise it is a very small unit and it cannot be used for commercial purpose.  The allegations of the complainant are supported by his own affidavit. There is no reason on record to disbelieve the above said version of the complainant. Pertinently in an earlier complaint titled as Ruchira V.Arora Vs. M/s Chandigarh Overseas Private Limited & Ors, Consumer Complaint No.398 of 2012, decided on 29.11.2012, this Forum had dismissed that complaint holding the complainant of those complaint not to be a consumer. However, in the instant case, the position is entirely different because there is a specific plea of the complainant in the complaint that he invested the amount for using the premises for his personal use and for other members of the family. It is also worth noting that earlier Mrs.Meenakshi Tuli Pasrija and Ms.Saloni Jain filed similar complaints No.281 and 282 of 2011 against the OPs, which were decided by this Forum (presided over by Sh.P.D.Goel) on 1.12.2011, in which, they were held to be consumers under the Consumer Protection Act. Their complaints were allowed against the OPs. The OPs filed appeals in the Hon’ble State Commission, UT, Chandigarh and the Hon’ble State Commission vide judgment dated 2.4.2012 found that the complainants had purchased two small units bearing 125 sq. ft. each, the price whereof was Rs.5 lacs each, out of which, Rs.4.75 lacs were paid by the complainants and 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. The above appeals of the OPs were dismissed by the Hon’ble State Commission. However, when I decided the case titled as Ruchira V.Arora Vs. M/s Chandigarh Overseas Private Limited & Ors., Consumer Complaint No.398 of 2012 on 29.11.2012, the above said judgments were not brought to my notice. Since in the exactly similar circumstances, the Hon’ble State Commission took a view against the OPs and held that the complainants were consumer under the Consumer Protection Act, the complainant of this case is also covered under the definition of consumer as defined under Section 2(1)((d)(ii) of the Consumer Protection Act, 1986.

9.                Adverting to the question of the liability of the OPs, it is important to note that even in the letter dated 14.10.2006 – Annexure C-1, OP No.2 informed the complainant that his application was eligible for buy back option. The copy of Information Memorandum of Small Investors – Annexure C-2 also shows that under Clause No.16 relating to Buyback Offer, OP No.2 gave an information that the first 500 units sold shall be entitled to a buy back option by the company @Rs.7,50,000/-. The complainant made the payment of an amount of Rs.4.75 lacs as mentioned above to OP No.2, therefore, he was entitled to buy back option. In fact buy back option dated 22.6.2009 – Annexure C-9 was given to the complainant by OP No.1, which was accepted by him vide letter dated 9.9.2009 – Annexure C-10 and that letter was addressed to OP No.2. However, the amount of Rs.7,50,000/- was not paid to the complainant, despite the exercise of buy back option.

10.              It has been contended by the learned Counsel for the OP No.1 that the letter dated 9.9.2009 – Annexure  C-10 was not sent to OP No.1 and there is no proof of sending this letter to OP No.1. He has further argued that since possession of the said studios was not handed over to OP No.1, therefore, it could not make payment of any amount under buy back offer. The learned Counsel for OP No.1 has also urged that both the OPs are different companies having separate status and separate liabilities. The learned Counsel for OP No.2 has also vehemently argued that the action of OP No.1 cannot be held against OP No.2.

11.              On the other hand, the learned Counsel for the complainant has urged that both the OPs are sister concerns and they are carrying on business in the same premises and they are now taking a plea of separate entities in order to escape the liability. He has drawn our attention to the complaints titled as Saloni Jain Vs. M/s Greenfield Sites Management Private Limited & Ors. and the judgments of the Hon’ble State Commission in appeal and has contended that in the similar cases, the OPs were found to have not delivered the possession as agreed upon and it was also held that OP No.1 had offered the buy back option to the complainant, which was accepted and the complainant had a right to exercise the buy back option and the OPs were directed to pay jointly and severally the amount of buy back i.e. Rs.7,50,000/- and also for compensation for the delay in starting the construction. Therefore, in this case also both the OPs are jointly and severally responsible.

12.              After giving our thoughtful consideration to the rival arguments, we find considerable force in the arguments of the learned Counsel for the complainant and feel that the same must prevail. A perusal of the address of M/s Chandigarh Overseas Private Limited – OP No.2 shows that the same is mentioned as SCO No.196-197, Sector 34-A, Chandigarh 160 022, India, Tel.:+91-172-5001170, 5001180, Fax No.5001190 in Annexure C-1 and C-2. Similarly in the letter dated 22.6.2009 – Annexure C-9 sent by OP No.1 the address is mentioned as SCO No.196-197, Fourth Floor, Sector 34-A, Chandigarh 160 022, India, Tel.:+91-172-5001170-80, Fax No.+91 172 5001190. Pertinently the addresses, telephone numbers and the fax numbers of both the OPs are the same. In the earlier complaints titled Mrs.Meenakshi Tuli Pasrija Vs. M/s Greenfield Sites Management Private Limited & Ors. & Saloni Jain Vs. M/s M/s Greenfield Sites Management Private Limited & Ors. (supra) both the OPs filed joint written statement but in the present complaint, they have filed separate written replies deliberately to escape their liability. We are of the opinion that it is established from the evidence on record that OP No.2 gave a buy back offer to the complainant @Rs.7,50,000/-. No doubt the letter for buy back option dated 22.6.2009 – Annexure C-9 was sent by OP No.1 but the acceptance for buy back option was given by the complainant to OP No.2 vide letter dated 9.9.2009 – Annexure C-10. Significantly, the complainant specifically pleaded about his information for availing buy back option in para No.3 of the complaint and OP No.2 in para No.3 of its written reply did not state that it did not receive the letter dated 9.9.2009 from the complainant. We are of the view that the complainant duly exercised his right to buy back option. Furthermore, as per Clause 28 of Developer Buyer Agreement – Annexure C-8 if there is a delay in handing over the possession of the unit i.e. beyond 30 months from the date of start of the construction, the developer shall compensate the buyer by paying him Rs.50 per sq.ft. per month of the super area of the unit as compensation. In the instant case, since OP No.2 paid only a meager amount of Rs.33,871/- towards compensation vide letter dated 30.11.2011 – Annexure C-11, the complainant is entitled to recover the compensation @Rs.6250/- per month w.e.f. July, 2010 for the delay in starting the construction. Consequently, we find deficiency in service on the part of OPs.

13.              It is no doubt true that in Ruchira V.Arora Vs. M/s Chandigarh Overseas Private Limited, Consumer Complaint No.398 of 2012, decided on 29.11.2012 (supra), the complaint of Ruchira V.Arora was dismissed vide order dictated by me but as already mentioned the judgments passed by this Forum in cases of Saloni Jain Vs. M/s Greenfield Sites Management Private Limited and Mrs.Meenakshi Tuli Pasrija Vs.  M/s Greenfield Sites Management Private Ltd. and upheld in the appeal by the Hon’ble State Commission were not brought to my notice at that time. The judgments passed in appeal by the Hon’ble State Commission in identical cases are evidently binding on this Forum.

14.              For the reasons recorded above, I find merit in the complaint and the same is hereby allowed. The OPs are jointly and severally directed to pay Rs.7,50,000/- to the complainant on account of buy back option and Rs.6250/- per month w.e.f. July, 2010 till the actual date of payment as compensation along with interest @9% p.a. from the date of filing of the complaint, till payment. The OPs shall also pay an amount of Rs.50,000/- to the complainant towards compensation for mental agony and harassment and Rs.5,000/- towards costs of litigation.

15.              This order shall be complied with by OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the above said awarded amount to the complainant along with penal interest @ 12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation.

16.              The certified copies of this order be sent to the parties free of charge. The file be consigned.