RAJBIR SINGH BHANGAL V/S CONCORD HOSPITALITY PRIVATE LIMITED AND ORS - Consumer Court Case

Chandigarh

StateCommission

A/158/2024

CONCORD HOSPITALITY PRIVATE LIMITED AND ORS - Complainant(s)

Versus

RAJBIR SINGH BHANGAL - Opp.Party(s)

T.S. KHAIRA

07 May 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	158 of 2024
Date of Institution	:	16.04.2024
Date of Decision	:	07.05.2024

CONCORD HOSPITALITY PRIVATE LIMITED through Sh. Harpinder Singh Gill Managing Director, Registered office at 1, VPO Bal Sachander, Airport Road, Ajnala Road, Amritsar - 143101.
CONCORD HOSPITALITY PRIVATE LIMITED office at 38, Court Road, Amritsar-143001 through its authorized personnel. Email:-ringill@yahoo.com
AMRITSAR WORLD TRADE CO. PRIVATE LIMITED through its Managing Director, registered office at Radisson Blu Hotel (blessing Project Office) Airport Road, Amritsar-143001.

…..Appellants/Opposite parties no.3 to 5

Versus

RAJBIR SINGH BHANGAL S/o Late Sh. Avtar Singh Bhangal, Permanent Address R/o H. No. 3046, Sector-19-D, Chandigarh

2nd Address:- RAJBIR SINGH BHANGAL S/o Late Sh. Avtar Singh Bhangal, 69 Springacre Road, ThornsLands, Queensland, Australia.

……Respondent no.1/complainant

ANSAL PROPERTIES & INFRASTRUCTURE LTD., through its Managing Director, 1202-04, Antriksh Bhawan 22-Kasturba Gandhi Marg, New Delhi - 110001.
ANSAL PROPERTIES & INFRASTRUCTURE LTD., through its Branch Manager, office at Sco 183-184, Sector 9 C, Madhya Marg, Chandigarh- 160009

(Both OPs No.1 & 2 deleted vide order dated 27.3.2023 by the District Commission)

….Respondents No.2 and 3/opposite parties no.1 an 2

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

MR. RAJESH K.ARYA, MEMBER

Present:- Sh.Gunjan Rishi, Advocate for the appellants

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

The opposite parties no.3 to 5 (now the appellants) have assailed the order dated 13.02.2024, passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), whereby consumer complaint bearing no.134 of 2021 was allowed and they were directed as under:-

“……In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OPs No.3,4 and 5 are directed as under:-

to refund Rs.33,60,000/- with interest @9% P.A. from the respective dates of deposit till onwards.
to pay Rs.50,000/- to the complainant as compensation for causing mental agony and harassment to him;
to pay Rs.10,000/- to the complainant as costs of litigation.

This order be complied with by the OPsNo.3,4, and 5 within 45 days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above..…..”

Before the District Commission, it was the case of the complainant/respondent no.1 that he purchased a commercial unit, in the project of the opposite parties for his livelihood, in resale from one Jotinder Singh. The opposite parties transferred the unit in question in the name of the complainant vide endorsement dated 17.10.2008 and as such the complainant stepped into shoes of Jotinder Singh. The total cost of the unit in question was Rs.48,00,000/- and the complainant has paid an amount of Rs.33,60,000/-. As per clause 11 of the agreement, possession of the unit was to be handed over in three years from the date of booking/allotment after obtaining all necessary sanctions from the competent authority. However on 15.10.2013 the complainant received a letter from the opposite parties intimating that they have entered into an agreement dated 11.06.2013 vide which the opposite parties no.3 to 5 have agreed to take over the business of the said project completely including its management, all obligation, warrantees, representation made to the allottees by the opposite parties no.1 and 2 in the agreement entered into between the parties without any consent of the complainant. The complainant objected the said action and filed various complaints before the appropriate forums. The opposite parties even after receiving huge amount from the complainant neither handed over possession of the unit in question nor refunded the deposited amount. Hence, consumer complaint was filed by the complainant before the District Commission.
The complaint was contested by opposite parties no.3 to 5 by way of filing written version, wherein, while admitting the factual matrix of the case, it was stated that the complainant has no jurisdiction to file complaint before the District Commission as he is not an Indian Citizen and a resident of Australia. It was admitted that the complainant had paid an amount of Rs.33,60,000/- towards the unit in question out of the total sale consideration of Rs.48,00,000/-. It was alleged that the complainant is defaulter in payment of the remaining amount despite various reminders having been sent to him from 2013 to 2019. It was averred that possession of the unit in question was offered to the complainant vide letter dated 12.11.2013 and he was asked for making payment of remaining sale consideration, but he failed to do so.
Names of opposite parties no.1 and 2 were deleted by the District Commission vide order dated 27.03.2023.
In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those of opposite parties no.3 to 5.
The contesting parties led evidence in support of their contentions before the District Commission and the consumer complaint was ultimately, allowed in the manner stated above.
Hence this appeal.
We have heard the counsel for the appellants/opposite parties no.3 to 5 at the preliminary stage, and have also gone through the entire record of this case, very minutely.
Counsel for the appellants while taking following objections, contended with vehemence that the District Commission fell into a grave error in allowing the consumer complaint vide the order impugned, which is liable to be set aside:
1. that the District Commission was not having territorial jurisdiction to entertain and decide the consumer complaint;
2. that because the complainant had purchased the commercial unit, therefore, he did not fall within the definition of consumer;
3. that the complainant being not an Indian Citizen/NRI was not a consumer;
4. that possession of the unit in question was offered and the complainant was requested number of times to take over the same, after making payment of balance sale consideration, but he failed to do so.
5. that the consumer complaint was time barred;
First coming to the objection taken by the appellants regarding territorial jurisdiction of the District Commission, it may be stated here that since it is clearly coming out from the record that sale agreement dated 20.05.2008 (Annexure C-3) in respect of the unit in question, between the complainant and original allottee was executed at Chandigarh i.e. House No.38, Sector 2, Chandigarh and also House No.3046, Sector 19-D, Chandigarh, respectively; secondly, an amount of Rs.4,80,000/- had been received by the opposite parties from the complainant, vide receipt dated 17.01.2009 (Annexure C-4 colly.) at their Chandigarh Office i.e. SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh; and thirdly, the permanent address of the complainant is at House No.3046, Sector 19-D, Chandigarh, as such, the District Commission was having territorial jurisdiction to entertain and decide the consumer complaint in view of Section 34 (2) (a) (b) (c) and (d) of the CPA 2019. As such, objection taken by the appellants in this regard stands rejected.
Now coming to the objection taken by the appellants to the effect that because respondent no.1/complainant had purchased the commercial unit, therefore, he did not fall within the definition of consumer, it may be stated here that the complainant in his complaint has clearly stated that he had purchased the unit in question, in order to start his own consultancy office, by way of self employment, to provide expertise consultancy to the Environmental Industries. Thus, in our considered opinion, if respondent no.1 has purchased the unit in question, for earning his livelihood by way of self employment, in the manner stated above, then in no way, it can be said that he is not a consumer. On the other hand, the appellants have failed to place on record any evidence to prove that the respondent no.1 is an investor or is a property dealer and has purchased the unit in question for resale, to earn profit. The mere fact that it is a commercial unit, in itself, is not a ground to shove respondent no.1 out of the purview of consumer. It is significant to mention here that a similar objection has already been dealt with by the Hon’ble National Commission in L.K. Vashisht & Anr. Versus M/S. Landmark Apartment Pvt. Ltd. First Appeal No. 815 of 2018, decided on 29 Jul 2019, wherein while brushing aside the similar objection taken by the builder, it was held as under:-

“…….10. At the outset, we address to the issue as to whether the Complainants fall within the Ambit of the definition of ‘Consumer’ as defined under Section 2(i)(d) of the Act.

11. Learned Counsel appearing for the Developer vehemently contended that the Complainants were not ‘Consumers’ as they have booked ‘Commercial Space’ in the IT Park and that there was no plea in the Complaint that it is for their livelihood. He further submitted that the Complainants already received an amount of ₹57,70,050/- towards assured return in both the Complaints and that the plea that this Commercial Space was purchased for their own livelihood was raised by the Complainants for the very first time in their Evidence Affidavit without filing any documentary proof thereof and that the IT Park today is complete and the competent authority has also issued part Occupation Certificate and hence seeking refund with interest at this juncture, is not justified. He drew our attention to Clause 11 in the said MOU, which is reproduced as here under:

“11. That the First Party will reimburse 2.2 times of the entire principal amount in case of non completion of project along with bank interest of 18% annually.”

12. It is the case of the Developer that there was no definite time frame given to construct the project and as it was an assured return project the benefits of which were already availed by the Complainants together with the fact that the project today is complete, question of refund of the principal amount with interest does not arise.

13. A brief perusal of the Affidavit of Evidence filed by the Complainants before the State Commission establishes that the Complainants wanted to use the said space for opening an office for their livelihood by employing themselves. This Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, has held that when a plea is raised by the Developer/ Developer that the Complainant is not a Consumer as defined under Section 2 (i)(d) of the Act as the space was purchased for commercial purpose or that more than two shops / flats have been purchased, it has been held by this Commission that the onus shifts to the Developers / Developer to establish that the Complainant was dealing in real estate i.e. in purchase and sale of shops / flats. In the instant case the Developer did not discharge its onus.

14. Be that as it may, this Commission in its order dated 23.01.2018 in First Appeals No. 1260 to 1262 of 2016 (M/s. Landmark Apartment Pvt. Ltd. Vs. Ms. Parnita Garewal), while dealing with the same point of law, as to whether the Complainants were Consumers when they have purchased commercial space in the same project floated by the same developer, has held that the Complainants were Consumers as defined under Section 2 (i)(d) of the Act and that the Agreement does not anywhere specify that the space is meant for only IT Park enabled services. Even in the instant case, neither the Application Form nor the MOU states that the space had to be used only for an IT related purposes.

15. It is pertinent to mention that the Hon’ble Supreme Court in its order dated 16.04.2018 in SLP No. 9147 of 2018 ((M/s. Landmark Apartment Pvt. Ltd. Vs. Krishna Prakash), has dismissed the SLP preferred by the Developer against the orders passed in the aforenoted First Appeals and therefore the finding that the Complainants who have purchased Commercial Space in the said IT Park fall within the definition and Ambit of Section 2 (i)(d) of the Act, has attained finality….”

Not only as above, a similar controversy has already been set at rest by the Hon’ble Supreme Court of India in the case titled as Sunil Kohli and anr. Vs. M/s Purearth Infrastructure Ltd., Civil Appeal nos.9004-9005/2018, decided on 01.10.2019. In this case, the complainants had been staying in Denmark and put their house on sale in that Country and wanted to reside in India. They booked a shop with M/s Purearth Infrastructure Ltd., with a view to open a store of lingerie by the brand name of “Change’, yet, the Hon’ble National Commission dismissed the complaint filed by them, holding that since the shop in question was booked for commercial purpose, as such, the complainants did not fall within the definition of consumer. In the appeal filed, the Hon’ble Supreme Court while interpreting the legal term of consumer, has categorically observed as under:-

“As laid down by this Court in Laxmi Engineering Works, the explanation to Section 2(1)(d) of the Act clarifies that “in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-

employment, such purchaser of goods is yet a ‘consumer’”. This Court went on to observe that what is “Commercial Purpose” is a question of fact to be decided in the facts of each case.

To similar effect are the observations of this Court in Cheema Engineering Services wherein it was observed in para 6 thus:

“6. In other words, the Explanation excludes from the ambit of commercial purpose in sub-clause (i) of Section 2(1)(d), any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. The question, therefore, is whether the respondent has been using the aforesaid machine for self-employment? The word “self-employment” is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self- employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but “merely earning livelihood in commercial business”, does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood.

‘He’ includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that, therefore, it is not a commercial purpose. The orders of all the Tribunals stand set aside. The matter is remitted to the District Forum. The District Forum is directed to record the evidence of the parties and dispose of it in accordance with law within a period of six months from the date of the receipt of this order.” The issue therefore is whether the evidence on record is suggestive or indicative of the fact that the premises in question were booked by the complainants with the intention of self-employment or self-use.

The affidavit of evidence as quoted above clearly points that the complainants wanted to dispose of the property in DENMARK and wanted to come down to Delhi to start a business. It is for this purpose that the premises in question were booked. The evidence also discloses that the Complainant no.1 was not employed any more in DENMARK and as a matter of fact, he was serving RED CROSS, a charitable organization. In the circumstances, it cannot be ruled that the case of the Complainants would not come within the definition of “consumer” as defined under the provisions of the Act.”

In the case of Tosoh India Pvt. Ltd. (Formerly Lilac Medicare Pvt. Ltd.) Vs. Ram Kumar & 3 Ors., Revision Petition No. 2833 of 2018, decided on 06 Jan 2020, also, the Larger Bench of the Hon’ble National Commission has laid down following preposition of law, under which, consumer complaints are admissible in respect of commercial units:-

“ (a) Only a person engaged in large scale commercial activities for the purpose of making profit is not a consumer;

(b) There should be a direct nexus between the large scale commercial activities in which a person is engaged and the goods purchased or the services hired or availed by him, before he can be excluded from the purview of the term ‘consumer’. Therefore any goods purchased or the services hired or availed even by a person carrying on business activities on a large scale for the purpose of making profit will not take him out of the definition of the term ‘consumer’, if the transaction of purchases of goods or hiring or availing of services is not intended to generate profit through the large scale commercial activity undertaken by him and does not contribute to or form an essential part of his large scale commercial activities.

(c) What is crucial for the purpose of determining whether a person is a ‘consumer’ or not is the purpose for which the goods were purchased or the services were hired or availed and not the scale of his commercial activities.

(d) The explanation below Section 2(1)(d) of the Consumer Protection Act is clarificatory in nature

(e) A person purchasing goods or hiring or availing services for a consideration, for the purpose of earning his livelihood by way of self-employment is a ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act.

(f) It is not necessary that a person should be working alone in the commercial activity undertaken by him for earning his livelihood and his family members and / or a few employees can assist him in his commercial venture. Such assistance by his family members or by a few employees engaged by him does not convert his business or profession into a commercial activity on a large scale, for the purpose of making profit and therefore, does not exclude him from the purview of the term ‘consumer’.”

As such, since in the present case also, as stated above, respondent no.1 has clearly taken a stand, that he had purchased the unit in question, in order to start his own consultancy office, to run the same by way of self employment, to provide expertise consultancy to the Environmental Industries, which has not been disproved by the appellants by placing on record any contrary evidence, as such, it is held that respondent no.1 is a consumer. Objection taken by the appellants in this regard stands rejected.

Now we will deal with the objection taken by the appellants that the complainant being not an Indian Citizen and on the other hand an NRI is not a consumer, it may be stated here that the mere fact that the complainant is an NRI/residing in Australia now, is no ground to snub him out of the purview of ‘consumer’. No law debars NRI and any other person sitting abroad, with roots in India, to purchase a property in India for his/her personal use. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. The complainant is an independent person and can purchase any unit in India, in his own name. Similar view was expressed by the Hon’ble National Commission in Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd., Consumer Complaint No. 118 of 2012, decided on 04.01.2016. Objection taken in this regard is rejected.
The next question that falls for consideration is, as to whether, actual physical possession of the unit in question was offered to the respondent no.1 vide letter dated 12.11.2013, Annexure OP-3/1 or not? It may be stated here that we have gone through the contents of letter dated 12.11.2013, Annexure OP-3/1 and are of the considered view that it was not a valid possession as it was accompanied with demand of Rs.9,60,000/- towards 2^nd installment as per Construction Linked plan including interest of Rs.7,42,750/- i.e. total Rs.17,02,750/- meaning thereby that it was a conditional offer of possession. Our this view also finds support from the ratio of law laid down by the Hon’ble Supreme Court in Utpal Trehan Versus DLF Home Developers Ltd., Civil Appeal No. 4690 Of 2022, decided on July, 11^th 2022, wherein also it was clearly held that if possession letter is conditional on settling of accounts, the builder cannot argue that there was a valid offer of possession. Furthermore, there is nothing on record that the appellants have obtained occupation and completion certificates in respect of the unit and also the project in question. On the other hand, the appellants themselves have placed on record, copy of letter dated 09.01.2019, Annexure OP-3/8 having been issued to them by the Town and Gram Planning Department, Amritsar wherefrom, it is clearly coming out that completion certificate in respect of the project in question was not obtained by the appellants and they were asked to take the same. Relevant part of the said letter is reproduced hereunder:-

“…Subject:- Completion of Aerodrome Building falling under Khasra No's. 23//18, 19 falling in village Sachander, Tehsil and District Amritsar.

In relation to the above subject, you are informed that as per point no. 5 of letter no. 2119 DTP(A)/AL-21 dated 26-9-2006 issued to you if the construction is not done as per the approved building plan, after taking the revised approval, the completion should be obtained from the Competent Authority….”

It is settled law that before offering possession of the unit, the builder/development is legally bound to obtain completion certificate from the competent authorities. An allottee is not obliged to take possession of a unit, unless it is complete in every respect, including the completion certificate. It was so said by the Hon’ble National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015. Relevant part of the said order reads as under:-

‘….An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate….’

The Hon'ble National Commission in its order dated 13.06.2018 passed in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) also, categorically held that legal possession cannot be delivered in the absence of completion certificate issued by the competent authority. It was held in Para No.5 as follows:

5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."

Thus, in view of findings given above, we are of the considered opinion that in the absence of any evidence to prove that the project in question was complete in all respects by the year 2013 and also in the absence of any completion certificate, it can safely be said that the letter dated 12.11.2013, Annexure OP-3/1, was nothing but a paper transaction and infact a demand letter, and in no way it can be termed as offer of possession.

Now coming to the objection taken by the appellants that the consumer complaint was barred by limitation, it may be stated here that once it has been held above that actual physical possession of the unit in question was never offered and delivered by the appellants to respondent no.1, as such, there was a continuing cause of action in favour of respondent no.1 to file the consumer complaint in view of Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when actual physical possession of the units/plots is not delivered, there is a continuing cause of action in favour of the allottee/buyer. Not only as above, since it has been held above that occupation and completion certificates have not been obtained by the appellants from the competent authorities, as such, this objection taken by the appellants is bereft of merit in view of ratio of law laid down by the Hon’ble Supreme Court in the case titled as Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., , wherein, it was held that continuous failure to obtain occupancy certificate is continuing wrong, therefore, complaint cannot be said to be barred by limitation. Relevant part of the said order is reproduced hereunder:-

“………Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant society. For this reason, a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate, there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation.………”

In the present case also, the act of the appellants of continuous failure to obtain occupation and completion certificates is a breach of the obligations and amounts to a continuing wrong and therefore, there is a continuing cause of action in favour of respondent no.1 to file the consumer complaint before the District Commission in view of ratio of law laid down in Samruddhi Coop. Housing Society Ltd. case (supra). Thus, objection taken by the appellants in this regard stands rejected.