Delhi

New Delhi

CC/665/2011

Mahesh Chand Garg - Complainant(s)

Versus

M/S. Supertech - Opp.Party(s)

30 Jan 2020

ORDER

 

CONSUMER DISPUTES REDRESSAL FORUM-VI (DISTT. NEW DELHI),

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC. 665/2011                                                                   Dated:

      In the matter of:                         

 

            Mahesh Kumar Garg,

           S.no. 85, Syndicate Market,

            Raj Nagar, Palam Colony,

             New Delhi-45                                                                                                                                                                                                                                                                                                                                               ……..COMPLAINANTS

VERSUS

1.            M/s Gupta Associates

19, Regal Building,

Connaught Place,

New Delhi-110001.

 

2.               M/s Supertech

1114, Hemkunt Chamber,

89 Nehru Place,

New Delhi-110019                                                                                    ……………OPPOSITE PARTIES

 

 

  ARUN KUMAR ARYA-PRESIDENT

ORDER

The complainant filed his complaint under Section 12/13 of the Consumer Protection Act, 1986 alleging that the complainant himself was the allottee unit No. 1410 in Socrates 2 Tower “ CZAR SUITES” fully loaded  studio apartment at plot No. -02 Greater Noida ( UP) of 477 sq. ft. super area at 14^th Floor for that the complainant  had paid  Rs. 13,29,449/- till 31/03/2011 whereas the total cost of the said “ CZAR SUITES” fully loaded studio apartment was Rs. 13,99,416/-  and the balance amount of Rs. 69,967/- was to be made at the time of possession in question. As per scheme of OP-2 , the allotee of “ CZAR SUITES” fully loaded  studio apartment  will get @ 12 %  interest Per annum on the paid amount  i.e. 13,29,449/-  as the post datedcheques of each month but OP-2 failed to do so inspite of numerous visits of the OP-2 office. OP-1 was the authorized broker or agent of the supertech Ltd. i.e. (OP-2). Alleging deficiency in service on the part of OP-2, following prayer has been made:-

Interest  @ 12% P.A. on the paid amount i.e. Rs. 13,29,449/-  by way of PDC till possession-of the “ CZAR SUITES” fully loaded studio apartment  in question alongwithRs. 50,000/-  as compensation for the harassment inconvenience, frustration and mental agony suffered by the Deponent and Rs. 20,000/- towards costs and other expenses

The OP was noticed and filed written statement / versions stating that they advanced 30 post dated cheques to the complainant as per their  commitments  which had been duly encashed  by the complainant and hence no liability stood against the OP-2. It was submitted that OP-2 was liable to pay the assured returns @Rs. 12,090/- for a period of 30 months or offer of possession whichever is earlier. According to the payment schedule prescribed under the allotment letter  dated 05/10/2010 the complainant was liable to pay a sum of Rs. 13,99,416/-  towards the total sale price excluding registration charges, parking, club membership etc and out of that complainant was liable to pay a sum of Rs. 1,39,941/- on 24/07/2010 and then second installment amounting Rs. 11,89,503/- on or prior to 07/09/2010 and the third and final installment  for Rs. 69,972/- on or prior to 30/10/2012 But the complainant defaulted in timely payment and only after issuance of demand notice dated 11/03/2011 and paid the second installment on 17/03/2011.  It was submitted that after the amendments in the service tax Act w.e.f 01/07/2010 the complainant was also liable to pay s um of Rs 37,002/- towards the service tax and demand was raised for a sum of Rs. 36,998/- but the complainant has not paid the said amount along with interest till the date. In short, complainant was liable to pay Rs. 1,06,970/- alongwith interest on arrears.

It was also alleged by the OP-2 that the flat of the complainant was ready for possession and complainant changed his residential address without giving fresh address to the OP-2.  There was no unfair trade practice  and deficiency in service on the part of OP-2. Hence, the present complaint is liable to be dismissed.

All the parties to the case has filed evidence by way of affidavit. Oral submissions were also made by the parties.

We have considered the material placed before us with relevant provisions of law.

The Memo of understanding signed between the parties on 22/03/2011 and the present complaint filed on 27/05/2011. It is not in dispute that the amount of Rs. 13,29,449/- was received by the OP till 31/03/2011. The OP had handed over the 30 post dated cheques of Rs. 12,090/- each and all cheques have been encashed/ credited in the favor of the complainant.

The OP issued 3 letters dated 08/10/2016 including the pre-possession letter of even dated within its as above stipulated that for the delayed period the compensation of Rs. 5 per sq. ft. After expiry of 30 month lock in period would be payable. The prayer of the complainant is for refund and the delivery of the possession has not been made.

The present complaint since filed around 2 months of the date of execution of the Memo of understanding, praying for refund with interest has been made.

The OP has not refunded the amount and opted to contested the case. It is not in dispute that till 2016 the OP was unable to handed over the possession of the said letter dated 08/10/2016 has also did not the offer possession but a prepossession letter was issued with simultaneously  raising demand for payment.

In view of the above factual metrix, it is clear that the complainant enjoyed the assured return and encashed 30 post dated cheques issued by the OP.

Thus, the complainant had deposited the amount with the OP for earning profit, which amount to commercial activity.

On the same issue we are also guided by judgement of our Hon’ble State Commission in First appeal no. 156/2019 titled as Dhan Devi Vs. Shanti Swaroup Satija decided on 05/04/2019 and by Hon’ble  National  Commission in Consumer Case no. 246/2013 titled as Mrs. Priti Arora Vs. M/s ARN Infrastructure India Pvt. Ltd. dated 06/04/2017.

Hence, in view of the above judgements, the complainant is not a consumer as per section 2 (1) (d) of CP Act 1986 as the complainant has not hired any services of the OP, on the contrary, he has deposited the money with the OP for getting the Assured Return @ 12% p.a. Therefore, we find no merits in the complaint; same is hereby dismissed.  However, liberty is given to the complainant to approach the appropriate Forum/Court as per the Law.

Copy of the order may be forwarded to the complainant to the case free of cost as statutorily required. The orders be uploaded on www.confonet.nic.in.  File be consigned to record room.

 

Pronounced in open Forum on  30/01/2020

 

 

(ARUN KUMAR ARYA)

                                                                                                  PRESIDENT

 

 

 

                                  (NIPUR CHANDNA)

                                                                               MEMBER