Chandigarh

StateCommission

CC/110/2018

Parika Ganeriwal - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. - Opp.Party(s)

Kanisth Ganeriwala, H.S. Sidhu, Sukhveer S Khillianwali, Adv.

20 Dec 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        U.T., CHANDIGARH

 

Complaint case No.	:	110 of 2018
Date of Institution	:	08.03.2018
Date of Decision	:	19.12.2019

 

Parika Ganeriwal D/o Devki Nandan Ganeriwala r/o H.No.323, Advocate’s Enclave, Sector 49-A, Chandigarh through special power of attorney D.N.Ganeriwala.

 

                                                …… Complainant

                        V e r s u s

 

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Zonal Office : SCO 139-140, Sector 8-C, Chandigarh.

Now at present : India Trade Tower, 1^st Floor, Baddi Kurali Road, New Chandigarh, Mullanpur, Distt. SAS Nagar, Punjab – 140901.

Email : customerrelations_chandigarh@omaxe.com

 

                                                ....Opposite Party

BEFORE:      JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

            MRS. PADMA PANDEY, MEMBER

            MR. RAJESH K. ARYA, MEMBER

 

Argued by:-     Sh. D.N.Ganeriwala, Advocate for the  complainant.

Sh. Munish Gupta, Advocate for the Opposite Party.

 

PER PADMA PANDEY, MEMBER.

              The facts, in brief, are that the Opposite Party advertised their new project – ‘CLOCKTON HIGH STREET BUILT-UP SCO’, located in integrated township project “Omaxe New Chandigarh” situated at New Chandigarh, Punjab with the assurance of payment of ‘Assured Return’ on the advance amount paid. In pursuance to an invitation, the complainant purchased the property and was allotted commercial space bearing No.CSCO/SECOND/38 at Second Floor, Entry Backside, admeasuring 1266 sq. ft. in the commercial complex in the aforesaid project of the Opposite Parties. The Agreement was executed with the Opposite Party. Copy of the Agreement-cum-allotment letter dated 13.10.2014 is Annexure C-1. The complainant deposited the full and final payment of Rs.27,45,267.58 as the sale consideration to the tune of 100% advance of basic sales price of the unit on the assurance that the Opposite Party shall pay an “Assured Return’ of sum of Rs.45,587/- less applicable TDS per month as compensation/commitment charges against the said advance money till the offer of possession was made. It was further stated that the Addendum to Allotment letter dated 13.10.2014 was also issued (Annexure C-2). It was further stated that the complainant received a demand letter dated 01.02.2017 for making the payment (Annexure C-3), as such, he deposited an amount of Rs.4,99,939/- on 15.02.2017. It was further stated that when the complainant enquired from the Opposite Party regarding possession, the work was still going on and it was nowhere remotely ready for possession. Therefore, the complainant sent email dated 28.02.2017 and also visited the spot on 10.03.2017, 12.04.2017 and 10.05.2017 but to no avail. It was further stated that the possession offered by the Opposite Party vide demand letter dated 01.02.2017 was only ‘temporary’ since the project was on the verge of completion and that too without obtaining the occupation certificate/completion certificate. Ultimately, the complainant sent a legal notice dated 19.09.2017 but to no avail. It was further stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.                The Opposite Party, in its written version, has specifically stated that the complainant did not fall within the definition of “Consumer” as defined under Section 2(d) of the Consumer Protection Act, 1986, as he purchased the unit, in question, for commercial purposes/speculation. It was further stated that the complainant herself is lawyer by profession and purchased the said property only for rental gain. It was stated that the possession was offered to the complainant vide letter dated 01.02.2017 and thereafter vide letter dated 23.09.2017 after obtaining necessary permission sanction from the competent authority but the complainant has failed to take possession and is delaying the same. It was further stated that as per the Agreement, payment of assured return to the complainant to be paid to the complainant till offer of possession of fitout dated 01.02.2017.  It was further stated that the complainant has not disclosed that she has received huge amount of Rs.14,91,170/- from 10.05.2014 to 31.01.2017 towards assured returns in terms of addendum to agreement. It was further stated that if the complainant still wants to rescind the Agreement, then the same would attract forfeiture charges as per the Agreement and the complainants would be liable to refund the compensation amount with interest @18% p.a. It was stated that this Commission has no pecuniary jurisdiction as the amount of claim together with compensation/interest exceeds Rs.1 crore. It was further stated that this Commission has no territorial jurisdiction to try the complaint. It was denied that possession was not ready and that work was still going on. It was further stated that the alleged email dated 28.02.2017 was duly considered and the complainant was informed that she can come at any time to take possession but thereafter she filed the complaint. Copy of the occupation certificate and copy of letter of possession dated 23.09.2017 are Annexures OP-1 & OP-2. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Party, nor it indulged into unfair trade practice.

3.                The complainant, filed rejoinder to the written statement of the Opposite Party, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Party.

4.         The parties have been afforded adequate opportunities to adduce evidence, which has been led, in support of their respective cases, by way of affidavit and also produced numerous documents.

5.                We have heard the contesting parties and have gone through the evidence and record of the case, very carefully.

6.         First, we would like to deal with the objection raised by the opposite party, to the effect that in the face of existence of provision in the agreement, to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, wherein, it has been held that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018.

                   In this view of the matter, objection raised by the opposite party, in this regard, stands rejected.

7.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                   According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record that letter dated 01.02.2017, statement of account dated 01.02.2017, receipt  dated 15.02.2017 (Annexures C-3 & C-4) annexed by the complainant were sent by the Opposite Party from its Chandigarh Office, as the same bore the address of the Company as “SCO 139-140, Sector 8-C, Madhya Marg, Chandigarh - 160008”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

8.                Now coming to the objection raised with regard to pecuniary jurisdiction of this Commission, it may be stated here that in the present case, if total value of the reliefs claimed i.e. value of the commercial space; plus compensation claimed to the tune of Rs.2 lakhs towards mental harassment etc., is clubbed together, it exceeds Rs.20 lacs and falls below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide this complaint. Objection taken, thus, stands rejected.

9.                The next question, that falls for consideration, is, as to whether, the complainant is a consumer, as defined under Section 2 (1) (d)  of the Act. The complainant has specifically  mentioned in her complaint that she has purchased the property from her own savings in order to augment her income by using such property for self employment for her livelihood.  At the same time, there is nothing on record to show that the complainant is a property dealer and has indulged in sale and purchase of property on regular basis. In Laxmi Engineering Works Vs. P.S.G. Industrial Institute,  1995 AIR 1428, 1995 SCC (3) 583, the Hon’ble Supreme Court of India has specifically stated that if the commercial use is by the purchaser himself/herself, for the purpose of earning livelihood, by means of self-employment, such a purchaser of goods is a consumer. It was further said that to know that whether the goods have been purchased for commercial purpose, it is to be decided in the facts of each case. It is not value of the goods that matters, but the purpose, to which the goods bought, are put to.

                   It is very significant to add here that the complainant is seeking possession of the said commercial space and not refund of the amount deposited. Had the opposite party proved by placing on record some cogent evidence in the shape of ‘agreement to sell’ with some third person, showing sale of the office in question, by the complainant, only in those circumstances, it would have been held by this Commission that the said commercial space had been purchased for resale, to earn profits out of it. As such, the principle of law laid down in Laxmi Engineering Works` case (supra)  is fully applicable to the facts of the present case. Objection raised by the opposite party, in this regard, therefore being devoid of merit is rejected.

10.              The next question that falls for consideration before us is as to whether the complainant is entitled to ‘Assured Return’ of sum of Rs.45,587/- per month w.e.f. 01.02.2017 till handing over of actual physical possession of the unit, in question. The answer, to this, question is in the affirmative. It is, no doubt, true that the complainant was allotted commercial space bearing No.CSCO/SECOND/38 at Second Floor, admeasuring 1266 sq. ft. in the commercial space in the project ‘CLOCKTON HIGH STREET BUILT-UP SCO” located in integrated township “Omaxe New Chandigarh” situated at New Chandigarh, Punjab vide Agreement-cum-Allotment letter dated 13.10.2014 (Annexure C-1). A bare perusal of (Addendum for Lump Sum Plan)  - Annexure C-2 shows that the complainant paid the amount of Rs.27,45,267.58 as an advance of basic sale consideration of the unit. It is also true that the Opposite Party demanded an amount of Rs.4,99,939.92, as per demand letter dated 01.02.2017 alongwith Annexure A (Statement of Account). As such, the complainant paid the amount of Rs.4,99,803.92 vide receipt dated 15.02.2017 (Annexure C-4). So, the complainant paid the total amount of Rs.27,45,267.58 + Rs.4,99,803.92 = Rs.32,45,070.58 in respect of the unit, in question. According to the Opposite Party, the Company handed over possession firstly vide letter dated 01.02.2017 (Annexure C-3) to the complainant. The relevant portion of the said letter reads thus :-

“We are pleased to inform you that the development of the said Project is on the verge of completion and the construction work of your Unit has been completed and is now ready for fit-out. Therefore, the possession of your shop is offered to you to carrying out the interior work/fit outs like flooring, false-ceiling, painting and other activities.

X x x x x Upon receiving the balance payment and on adherence of required formalities, the temporary possession of the aforesaid Unit will be offered to you for interior, furnishing & fit-out purposes.”

 

It is crystal clear from the aforesaid lines that it is only a paper possession not more than that. According to the complainant, as per Addendum to Allotment letter dated 13.10.2014, he is entitled to Rs.45587/- per month (Annexure C-2). The relevant portion of the said letter reads thus :-

“It is agreed that upon receipt/realization of a sum of Rs.2745267.58 (Rupees Twenty Seven Lakh Forty Five Thousand Two Hundred Sixty Seven and Fifty Paisa) as an advance of basic sale consideration of the Unit in terms of Annexure B of the Allotment Letter (“Advance”) from the Allottee(s) on dated 10-MAY,14 (hereinafter referred to as the “Payment Date”), the Company shall pay the Allottee(s) a sum of Rs.45587.00 (Rupees FortyFive Thousand Five Hundred Eighty Seven) (less applicable TDS), per month as Commitment Charges (“Commitment Charges”) against the said Advance commencing immediately from the date of expiry of 60^th days from the date of booking of the said Unit and only after realization of 100% of Basic Sale Consideration amount till offer of Possession of fit-out (“Commitment Charges Period”).”

From the aforesaid paragraph, it is clear that the complainant is eligible for an amount of Rs.45587/- per month as commitment charges. Even the Opposite Party in para No.5 of its written statement, stated that the complainant received huge amount of Rs.14,91,170/- from 10.05.2014 to 31.01.2017 towards assured returns in terms of addendum to agreement. It is crystal clear from the letter dated 01.02.2017 that only paper possession was offered to the complainant. It is evident from the zimini order dated 09.08.2019 that the complainant placed on record Possession Certificate dated 02.08.2019 and another letter dated 04.07.2019 issued by the Opposite Party. From the said Possession Certificate, it is clear that actual physical possession was handed over to the complainant on 02.08.2019. Moreover, at the time of arguments, Counsel for the Opposite Party has submitted that sale deed has already been executed in favour of the complainant. Even the complainant received an amount of Rs.45,587/- till 31.01.2017, as such, she is entitled for an amount of Rs.45587/- from 01.02.2017 to 02.08.2019.  

11.              The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to her, for a long number of years, by not delivering physical possession of the unit to her, by the Opposite Parties. The complainant purchased the commercial space for earning livelihood but after receipt of the huge amount of Rs.32,45,070.58, the Opposite Party only offered paper possession vide letter dated 01.02.2017 and actual physical possession was given vide possession certificate dated 02.08.2019. The complainant underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Party. Compensation, on account of mental agony and physical harassment, caused to the complainant, due to the acts of omission and commission of the Opposite Party, if granted, to the tune of Rs.50,000/-, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.50,000/-.

12.        For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner. The Opposite Party is directed as under :-

(i)     To pay an amount of Rs.45,587/- per month as per the Addendum letter to the complainant w.e.f. 01.02.2017 till 02.08.2019 alongwith interest @9% p.a.

(ii)       To pay an amount of Rs.50,000/- towards compensation for mental & physical harassment caused to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @9% p.a., from the date of filing the complaint till realization.

(iii)      To pay an amount of Rs.50,000/- towards litigation expenses to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @9% p.a., from the date of filing the complaint till realization.

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

14.         The file be consigned to Record Room, after completion.

Pronounced.

December  19^th, 2019.                                          

                                                                [RAJ SHEKHAR ATTRI]

                                                                                [PRESIDENT]

 

                                                                        (PADMA PANDEY)

                                                                                 MEMBER

 

                                                                  

                                                                   (RAJESH K. ARYA)

                                                                                MEMBER