Delhi

StateCommission

CC/36/2016

SYED AHMED NOOH SHAMSIE & ANR. - Complainant(s)

Versus

M/S GULSHAN DEV. PVT. LTD. - Opp.Party(s)

HEMANT GUPTA

05 Feb 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

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

                                                                Date of Decision : 10.02.2016

                        Date of arguments heard : 5.2.2016

Complaint Case  No. 36/2016

1. Syed Ahmed Nooh Shamsie

2627, 1^st Floor, Shamsie Cottage,

Churiwallan, Jama Masjid,

•  
• Syed Ahmed anzars Shamsie

2627, 1^st Floor, Shamsie Cottage,

Churiwallan, Jama Masjid,

•  
• Roopak Sahi

Flat No.402, Tower-7

Zion Lak View Apartments

Sector-48, Faridabad-121001

•  
• Meenu Sahni

Flat No.402, Tower-7

Zion Lak View Apartments

Sector-48, Faridabad-121001

……Appellant

Vs.

M/s Gulshan Developers Pvt. Ltd.

Through its Managing Director(s)/Director (s),

4, Dayanand Vihar,

Delhi – 110 092

E-mail:

M/s Gulshan Developers Pvt. Ltd.

Through its Managing Director(s)/Director (s),

A-23. Swasthya vihar,

Delhi- 110 092

CORAM

O.P. Gupta,Member(Judicial)

S.C. Jain, Member

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

2.       To be referred to the reporter or not?

O.P. Gupta, Member (Judicial)

1.         The complaint is based on the allegations that the complainants booked various flats in Housing Project floated by the OP. Complainant No. 1 booked two flats bearing No. J-132 and B-104 and paid Rs.5,44,309/-. Complainant No. 2 booked four flats bearing No. J-103, B-053, B-101 and J-131 and paid Rs.9,27,226/-. Complainant No. 3 & 4 jointly booked two flats No.A-032 and A-062 and paid Rs.9,76,460/- towards part of total cost of flat. The complainants were surprised and astonished to learn that allotment of land on which project was scheduled to be constructed was under challenge, on 6.7.11 Hon’ble Supreme Court passed an order whereby allotment of said land by Greater noida Authority to the builders was held to be violating purpose for which the same was acquired. It was made clear that those who had paid money to the builders for booking flats etc. would be entitled to get back the amount alongwith interest at an appropriate rate and if the builders refuse to repay the amount, then they (purchaser) would be free to avail appropriate legal remedy. In pursuance of the said order OP sent letter dated 11.7.11 informing that it was in possession of another land at GH-02A, Sector-16, Noida Extention, Greater Noida and it was in process to offer the said land as an alternative to the project in question. OP vide notifications at their WEB site gave two options to the investors/allottees, one to claim refund as per orders of Hon’ble Supreme Court and second, for alternative locations as mentioned above wherein similar size of flats would be provided at the same cost. The complainants opted for alternative flat. Vide letter dated 20.12.11 flat in new residential project in Roza village were offered to complainant No. 1. It was clarified that amount received against earlier flat would be transferred to new allotment.
2. Vide e-mail dated 2.5.12 complainant No. 1 was informed that against two old flats bearing No. B-104 & J-131, new flats bearing No. C-1023 and M-126 has been allotted. Vide e-mail 26.2.15 OP responded and directed the complainants to comply with communications dated 5.2.13 issued by it and claim return in compliance of orders of Hon’ble Supreme Court. Since OP had already allotted alternative flats to the complainants, the question of seeking refund does not arrise. The OP has not only committed contempt of court by not providing refund at the relevant time but also mislead complainant in the garb of offering alternative location. Hence this complaint for directing OP to allot alternative flats in lieu of original flats, direct the OP to pay damages equivalent to amount deposited with OP, direct OP to pay compensation of Rs.10 lacs to each complainant, Rs.65,000/- as costs of litigation.
3. At the very outset it may be mentioned that four persons has joined in one complaint only to create a jurisdiction with this Commission. Otherwise the costs of initial flats booked was Rs.5,44,309/-, Rs.9,27,226/- and Rs.9,76,760/- for which complaint should have been filed in the District Forum. To permit such a course would amount to allowing the consumers to buy Forums of their choice.
4. Secondly the complainants are investors as complainant No. 1 has booked two flats, complainant No. 2 has booked four flats, complainant No. 3 & 4 had booked two flats. Apparently the same was not meant for occupations by the complainant personally. The object was to sell the flats when the prices would increase. Such a person is not a consumer as per decision of National Commission in CC No.143/2013 titled as Ved Kumari & Anothers v. M/s. Omaxe Buildhome Pvt. Ltd. decided on 5.3.14.  In para 2 of the judgment it has been noticed that the complainant had booked four more flats.  The complainant booked those flats for taking care of his family in future.  The property consisted of two rooms only and he was married subsequently. Their family could increase.  He wanted a three room flat.  He explained that his family would feel confortable in flat in Sector 93 B, Noida and four other flats yet to be allotted.  The National Commission was not impressed by the arguments. The national Commission relied upon its previous decision in Chilkuri Adarsh v.. ESS ESs VEE Construction, Vol. III (2012) CPJ 315 in which it was held that complaint filed by a person where agreement was for construction of two showrooms related to commercial purpose, is not maintainable in Consumer Forums. It was held that even when a consumer had booked more than one unit of residential premises, it amounted to booking of such premises for investment/commercial purpose.  Similar view was taken by National Commission in case of Jagmohan Chabra and Ors. v. DLF Universal Ltd., IV (2007) CPJ 199 which was upheld by Hon’ble Supreme Court in  Civil Appeal No.730-731 of 2008 dismissed on 29.9.08.
5.         In the above case National Commission further relied upon its decision in Ms. Saavi Gupta & Ors. v. Omaxe Azorim Developers Pvt. Ltd. in CC No.208 of 2012 decided on 1.10.12 and decision in consumer case No.307 to 309/2012 titled as Moran Plantation Pvt. Ltd. v. Ambience Private Ltd. decided on 2.9.13.
6.         Reliance can also be placed upon decision of the National Commission in CC No.207/2013 titled as Smt. Madhu Saigal & Ors. v. M/s. Omaxe Buildhome Pvt. Ltd. decided on 20.3.14. Exactly same question as to whether complainants are entitled to invest in more than one apartment was raised and the same was answered in the negative.
7.         Thirdly the cause of action if any arose on 6.7.11 when the Hon’ble Supreme Court declared the allotment of land to the OP to be violated for the purpose for which the same was acquired. The complaint having been filed after two years from the said date in January, 2016 is apparently barred by limitation. The performance of the agreement became impossible due to order of the Hon’ble Supreme Court and the OP can not be blamed for it.
8.         Fourthly by order dated 18.5.15, the complainant have called upon the OP to allot alternative flat or pay amount of Rs.10 lacs each towards compensation for mental agony. Now the complainant has added number of other reliefs. The complainants have not given any basis for compensation of Rs.10 lacs to each complainant. The prayer made in the complaint are imaginary.
9.         Lastly the OP had already offered the complainants to take the amount alongwith interest @ 12% p.a. from the date of booking though interest is liable to be paid from the date of order of Hon’ble Supreme Court, vide letter dated 26.2.15 copy of which has been filed by the complainant at page 53. This is quite reasonable offer. The rate of interest offered by the OP is better than rates prevailing at present. It appears that complainants wants to create a dispute for the sake of dispute and restored money from the OP under the garb of present complaint. Consumer Protection Act is not meant for this purpose.
10. The complaint is dismissed in limine.
11. A copy of this order as per the statutory requirements be forwarded to the parties free of charge.

        File be consigned to record room.

(O.P. Gupta)
Member (Judicial)

(S.C. Jain)

Member