BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.135 of 2015

                                 Date of institution:          01.04.2015

                                                     Date of Decision:            26.11.2015

Ram Bhaj Garg resident of H.No.23, Green Enclave, Zirakpur, SAS Nagar, Mohali, Punjab.

    ……..Complainant

                                        Versus

1.     M/s. Shivalik Site Plainer Pvt. Ltd., SCO No.510, F.F. and S.F. Sector 70, SAS Nagar, Mohali Punjab through its Managing Director.

2.     Amarpreet Heera son of Sadhu Singh (authorised agent of M/s. Shivalik Site Plainers Pvt. Ltd.) R/o H.No.57, Phase-2, SAS Nagar, Mohali, Punjab.

………. Opposite Parties

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 Lakhbir Singh, counsel for the complainant.

                None for the OPs.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following directions to the Opposite Parties (for short ‘the OPs’) to:

(a)    immediately handover the possession of the plot.

(b)    pay him damages to the tune of  Rs.5,00,000/- for negligent, deficient service, illegal and unlawful acts and for harassment, humiliation, stress, strain  and mental agony.

(c)    pay him Rs.33,000/- as litigation charges.

                The case of the complainant is that he is running a shop of clothes under the name and style of M/s. Jyoti Saries and suit Centre at Zirakpur. He was to vacate the shop  and he contacted OP No.1 who is agent of OP No.2. The complainant was induced by the OPs to purchase a showroom No.14-B, Shivalik Avenue, Sector 125, Kharar and was told that the it will have salient features such as 200 feet wide road and separate 100 feet wide parking space in front of the showroom site.  The complainant was in need of running the business for earning his livelihood.  The aforesaid showroom was sold to the complainant by the OPs on 05.06.2012. The complainant was given symbolic possession and assured that the said showroom is free from all kinds of encumbrances. The OPs further assured that they would provide the CLU, occupation certificate and environment clearance from the concerned authorities.  The complainant went to the site in February, 2013 for raising construction on the plot but found that the land was being cultivated by some persons. On enquiry they informed the complainant that the land belongs to them.  The complainant immediately contacted the OPs and OP No.2 told him that the matter would be solved very soon. Thereafter the complainant visited the OPs number of times and even issued legal notice dated 08.08.2014 but the OPs failed to give him the actual possession of the plot, CLU of the land, occupation certificate and environment clearance.  With these allegations the complainant has filed the present complaint.

2.             The OPs in its reply have pleaded in the preliminary objections that a bare reading of the complaint shows that the OPs had given the possession to the complainant and after that someone has taken possession of the plot of the complainant and the complainant now wants to get the possession of the plot from that person. The matter in dispute can be resolved by the Civil Court only. The complaint is not maintainable as the complainant has not disclosed the value of the property to ascertain the pecuniary jurisdiction of this Forum.  On merits, it is pleaded that  the complainant himself is proclaiming that the site in dispute is commercial site and on this score this Forum does not have the jurisdiction to try the complaint.  Once the possession of the plot was given to the complainant it was incumbent upon him  to protect his property and in case someone else tried to dispossess him the complainant should approach the civil court for grant of injunction.  Thus, denying any deficiency in service on their part, the OPs have sought dismissal of the complaint.

3.             To succeed in the complaint, the complainant tendered in evidence affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-7.

4.             Evidence of the OP consists of affidavit of Daljit Singh, their signing authority Ex.OP-1/1.

5.             We have heard learned counsel for the parties and have also gone through the written arguments submitted by them.

6.             The sale of show room No.14-B, Shivalik Avenue, Sector 125, Kharar in favour of the complainant by the OPs is admitted as is evident from Ex.C-3 i.e. sale deed dated 05.06.2012.  As per the sale deed, the total sale consideration paid by the complainant to the OPs is Rs.9,75,000/-. As per the complainant though as per sale deed he has been given symbolic possession of the property in question whereas actually the OPs have failed to give him physical possession after getting it demarcated from the concerned quarters as the OPs have failed to provide him the copy of CLU, occupation certificate and environment clearance certificate from the concerned authorities.  When in February 2013 the complainant found the sold site in question being under cultivation, he raised the issue with the OPs. Rather than satisfying the complainant the OPs have shed off all their liabilities by taking the shelter under the contents of duly executed sale deed. The complainant, therefore, has alleged deficiency in service and unfair trade practice on the part of the OPs as they have failed to give him physical possession of the site in question being free from all kind of encumbrances and, therefore, due to the acts of omissions of the OPs, he has been deprived of the use and benefit of his property.

7.             The OPs in Para No.6 of their reply have admitted having handed over the possession to the complainant and it was incumbent upon the complainant to protect his property and, therefore, the OPs have nothing to do with the plot in question as the dispute is not regarding to any service.  Further the OPs have taken the preliminary objection that the complaint is not maintainable as the site in dispute is a commercial site.

8.             Before we deal the complaint on merits, it will be appropriate to address the issue of maintainability of the complaint as per the objection raised by the OPs.  Undisputedly the property in question is a show room which is a commercial site having been sold by the OPs to the complainant vide sale deed Ex.C-3. The complainant has purchased the commercial site from the OPs for running his cloth shop under the name and style M/s. Jyoti Saries and Suit Centre which he is already running in a rented accommodation for earning his livelihood as per Para No.2 of the complaint duly supported by the affidavit.  Therefore, as per the decision of Hon’ble Punjab State Consumer Disputes Redressal Commission in  Ms. Navinder Uppal & another Vs. M/s.  Spirit Infrastructure Private Ltd. in First Appeal No.1243 of 2014 decided on 09.09.2015, as defined under Section 2 (1) (d) explanation of the Consumer Protection Act, the complainant is a consumer and the complaint is maintainable. As per definition of ‘consumer’ contained in Section 2 (1) (d) explanation appended to that section and which reads as under:

“Explanation:- For the purposes of this clause, “commercial purposes” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.”

9.             Therefore, we are of the opinion that the objection raised by the OPs is not sustainable and the complainant is a consumer for purchase of commercial site in question which he has purchased for earning his livelihood.

10.           Now on merits, the sale deed dated 05.06.2012 Ex.C-3 is admitted. However, the Ops have failed to show any document of handing over the physical possession of the property in question to the complainant. Further the OPs have failed to show having provided any copies of the CLU, occupation certificate or clearance from concerned authorities.  The complainant has proved from Ex.C-5  his demand for demarcation of the property in question which has been duly received by the OPs on 10.05.2014 as is evident from some inscription words ‘received with dated 10.05.2014’, ‘Sanjeev’ ‘forwarded to  site industrial 125 Shivalik Avenue for necessary action . Sd/- 10.05.2014’ and further reminder dated 27.05.2014 duly acknowledged by one Meenaksi on behalf of the OPs.  The OPs have failed to take appropriate steps  to redress the grievance of the complainant as raised by him in Ex.C-5 and C-6.  So much so the legal notice dated 08.08.2014 sent by the complainant by registered post remained unanswered in the hands of the OPs as the OPs pleadings and evidence is silent on this account.

11.           The sale of property in question without its proper  and effective physical possession by the OPs in favour of the complainant is an act of unfair trade practice and deficiency in service writ large on their part as they have failed to provide the physical possession after getting demarcation of the property in question as per site plan Ex.C-4 on the part of the OPs.  We, therefore, hold the act of omissions and commissions on the part of the Ops being an act of unfair trade practice and deficiency in service. The complainant has since been deprived of the use and benefit of his property due to the acts of omission and commission of the OPs and under the forced circumstances he has been made to carry on his business in rented accommodation from February, 2013 to 31.12.2013 at a months rent of Rs.20,000/- per month with further increment of 10% rent after 11 months and continues to run his business from the rented accommodation as per rent agreement Ex.C-7. Therefore, the complainant has not only been put to suffer mental and physical harassment  and agony but has also been subjected to financial burden which he has to bear by way of payment of rent of the tenanted premises under his occupation for running his business for earning livelihood. Thus on all accounts the complaint deserves to be allowed and the complainant deserves to be compensated.

12.           Hence the complaint is allowed with the following directions to the OPs to:

(a)    to handover the physical possession of Show room No.14-B Shivalik Avenue, Sector 125, Kharar, District SAS Nagar (Mohali) after demarcation of the same as per site plan Ex.C-4.

(b)    pay a lump sum compensation of Rs.2,00,000/- (Rs. Two lacs only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

November 26, 2015.     

                                (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                       Member