Chandigarh

StateCommission

CC/48/2023

Arpana Sood - Complainant(s)

Versus

Sushma Buildtech Ltd. - Opp.Party(s)

Rajesh Verma & Mukesh Verma Adv.

05 Feb 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	48 of 2023
Date of Institution	:	15.06.2023
Date of Decision	:	05.02.2024

 

 

Arpana Sood, aged 56 years, W/o Sh. Ishwar Dass Sood, Resident of House No. 5-G, Preet Nagar, Ambala, Haryana-133001.

…… Complainant

 

V e r s u s

 

1. SUSHMA BUILDTECH LIMITED, Unit No. B-107, 1st Floor, Business Complex, Elante Mall, Industrial Area, Phase-1, Chandigarh-160002, through its Managing Director.

Email Id:- group.sushma2005@gmail.com

 

2. M/S BRAVIN REALTORS PRITVATE LIMITED, Registered Office at SCO No. 2, Urban Plaza, Sushma Square, Village Gazipur, Zirakpur, Mohali, Punjab. Email Id:- group.sushma2005@gmail.com

 

3. MANHATTAN INFRA SERVICES PRIVATE LIMITED, Unit No. B- 107, 1" Floor, Business Complex, Elante Mall, Industrial Area, Phase-1, Chandigarh-160002, through its Managing Director/Director. Email Id:- binderpal@sushmabuildtech.com

…..Opposite parties

 

============================================================

Complaint case No.	:	49 of 2023
Date of Institution	:	15.06.2023
Date of Decision	:	05.02.2024

 

Shaminder Kaur, aged 55 years, D/o S. Malkiat Singh, Resident of House No. 12-B, New KV Quarters, PGT Chemistry, New Quarters, AFS, Ambala Cantt., Haryana, 133001.

…… Complainant

V e r s u s

 

1. SUSHMA BUILDTECH LIMITED, Unit No. B-107, 1st Floor, Business Complex, Elante Mall, Industrial Area, Phase-1, Chandigarh-160002, through its Managing Director.

Email Id:- group.sushma2005@gmail.com

 

2. M/S BRAVIN REALTORS PRIVATE LIMITED, Registered Office at SCO No. 2, Urban Plaza, Sushma Square, Village Gazipur, Zirakpur, Mohali, Punjab. Email Id:- group.sushma2005@gmail.com

 

3. MANHATTAN INFRA SERVICES PRIVATE LIMITED, Unit No. B- 107, 1" Floor, Business Complex, Elante Mall, Industrial Area, Phase-1, Chandigarh-160002, through its Managing Director/Director. Email Id:- binderpal@sushmabuildtech.com

…..Opposite parties

 

============================================================

 

Complaint case No.	:	93 of 2023
Date of Institution	:	28.08.2023
Date of Decision	:	05.02.2024

 

 

Ravi Ranjan Kumar Verma S/o Sh. Bimal Kumar Verma R/o Flat No. 2031, City of Dreams, SBP, Sector 116, Kharar-Landran Road, Mohali, Punjab, 140307.

 

…… Complainant

 

V e r s u s

 

1. SUSHMA BUILDTECH LIMITED, Unit No. B-107, 1st Floor, Business Complex, Elante Mall, Industrial Area, Phase-1, Chandigarh-160002, through its Managing Director.

Email Id:- group.sushma2005@gmail.com

 

2. M/S BRAVIN REALTORS PRIVATE LIMITED, Registered Office at SCO No. 2, Urban Plaza, Sushma Square, Village Gazipur, Zirakpur, Mohali, Punjab. Email Id:- group.sushma2005@gmail.com

 

3. MANHATTAN INFRA SERVICES PRIVATE LIMITED, Unit No. B- 107, 1" Floor, Business Complex, Elante Mall, Industrial Area, Phase-1, Chandigarh-160002, through its Managing Director/Director. Email Id:- binderpal@sushmabuildtech.com

…..Opposite parties

 

============================================================

 

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR. RAJESH K. ARYA, MEMBER.

 

Present:-               Sh.Rajesh Verma, Advocate for the complainants.

       Sh.Vishal Singal,  Advocate for opposite parties.

 

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

         

                   By this order, we propose to dispose of the aforesaid three consumer complaints. Since, the issues involved in these complaints, except minor variations, here and there, of law and facts are the same, therefore, we are of the opinion that the same can be disposed of, by passing a consolidated order.

2.           The aforesaid consumer complaints bearing no.48 of 2023 titled as Arpana Sood Vs. Sushma Buildtech Limited and ors. and 49 of 2023 titled as Shaminder Kaur Vs. Sushma Buildtech Limited and ors. have been filed by the respective complainants, seeking refund of the amount paid by them against their respective units, alongwith interest, compensation, litigation cost etc. and in consumer complaint bearing no.93 of 2023 titled as Ravi Ranjan Kumar Verma Vs. Sushma Buildtech Limited and ors., the complainant has sought delivery of physical possession of the unit in question; payment of lease amount till actual possession is delivered alongwith compensation, litigation expenses etc. The complainants have also prayed for declaring certain terms and conditions of the agreements/ memorandum of understandings executed between the parties as null and void, on the ground that the same are one-sided and oppressive. It has been pleaded by the complainants that despite the fact that the entire sale consideration stood paid by them to opposite party no.1, yet, legal and valid possession was never delivered to them and on the other hand, opposite party no.1 offered paper possession only in order to avoid payment of assured return committed vide respective agreements. It has been averred that taking benefit of innocence of the complainants, they were made to execute memorandum of understanding and General Power of Attorney  with  partner of the opposite partly no.1 i.e. M/s Bravin Realtors Pvt. Ltd./opposite party no.2 for the purpose of leasing the units in question.  Even the said MOUs, which were got signed blank from the complainants were not supplied to the complainants. It has been stated that even the interior fittings in the units and also the basic amenities were not provided by opposite party no.1 and the complainants have to pay from their own pocket to get the units completed. Even maintenance charges were received by opposite party no.1 without obtaining occupation and completion certificates. Details with regard to the project in dispute; units booked by the complainants; payments made by them etc. of these complaints are given below:-

 

CC No.	48/2023	49/2023	93/2023
Project	Sushma Chandigarh Infinium, SAS Nagar, Mohali, Punjab	Sushma Chandigarh Infinium, SAS Nagar, Mohali, Punjab	Sushma Chandigarh Infinium, SAS Nagar, Mohali, Punjab
Allotment made on	05.12.2016 (Ann. R-1)	06.10.2016 (Ann. R-1)	05.08.2017   (Ann. R-1)
Unit No.	46, 7th Floor	39, 7th Floor	20, 12th Floor
Area of the unit	446.73 sq. ft.	297.82 sq. ft.	297.82 sq. ft.
Total cost	Basic Sale Price 2327908/- plus miscellaneous charges	Basic Sale Price 1609915/- plus miscellaneous charges	Basic Sale Price 1727356/- plus miscellaneous charges
Total amount paid	2767685.00	2105929.00	2359416.00
Agreement to sell	05.12.2016 (Ann. R-2)	28.12.2016  (Ann. R-2)	08.08.2017  (Ann. R-2)
Due date of possession	30 months (As per clause 9 of the agreement) plus 9 months grace period	30 months (As per clause 9 of the agreement) plus 9 months grace period	30 months (As per clause 9 of the agreement) plus 9 months grace period
Possession offered on	14.12.2019 (Ann. R-5)	03.07.2019 (Ann. R-5)	18.09.2019  (Ann. R-5)
Possession delivered on	27.02.2020 (Ann. R-11)	23.07.2019 (Ann. R-7)	16.12.2019 (Ann. R-11)
Allottee	Original allottee	Original allottee	Original allottee

         

3.           It has been pleaded further that even various terms and conditions of the agreements/MOUs and maintenance agreements being one-sided and heavily loaded in favour of opposite party no.1 are liable to be declared null and void. Hence these complaints.
4.           In the replies filed by the opposite parties, in all the three complaints, numerous similar objections/grounds, inter alia, were taken as under:-
   1. the complainants in all the three complaints have purchased commercial units, which have been leased out to third party i.e. M/s Bravin Realtors Priviate Limited after execution of General Power of Attorneys/ Memorandum of Understandings and they are earning lease/rent amount out of the same meaning thereby that they are not using the same for earning their livelihood by means of self employment, as such, they are not consumers under the CP Act, 2019;
   2. that the complainants are in possession of their respective units since long and at the time of taking over possession, they have submitted their satisfaction notes/ undertakings regarding fittings/quality of construction etc. etc. and that they shall not raise any kind of claim or dispute;
   3. that these complaints are barred by limitation;
   4. that this Commission is not vested with pecuniary and territorial jurisdiction to entertain and decide these complaints;
   5. that the complainants have also given undertakings to the effect that they are in the knowledge that opposite party no.1 has been sanctioned one point supply electric connection from PSPCL and further agreed not to apply for transfer of electric meter connections in their name;
   6. that possession of the respective units were delivered to the complainants after obtaining occupation and completion certificates dated 15.12.2017 and 25.07.2019, respectively;
   7. that over and above the rental income, the complainants have also received huge amount of assured rent till the date of delivery of possession of their respective units, which shall be ordered to be refunded to the opposite party no.1, in case, this Commission comes to the conclusion that the complainants are entitled for refund of the amount paid;

 

5.           On merits, booking of the respective commercial units; execution of the buyer agreements; payments made by the complainants against their respective units have not been disputed by the opposite parties.  Prayer has been made to dismiss the complaints.
6.           The contesting parties led evidence in support of their cases.
7.           We have heard the contesting parties and have gone through the evidence and record of both the cases, including the written arguments, very carefully.
8.           Counsel for the complainants submitted that legal and valid possession of the respective units was never delivered to the complainants, as opposite party no.1 failed to obtain necessary NOCs/ NDCs from the competent authorities like electricity department etc.  He further submitted that in the absence of necessary NOCs/NDCs, the occupation and completion certificates obtained by the opposite party no.1 are deemed to be cancelled.
9.           On the other hand, counsel for the opposite parties has vehemently contended that because the commercial units in question have been purchased by the  respective complainants only for the purpose of earning profits by leasing/renting the same to a third party and infact are still receiving rental income out of the same by leasing it out, as such, these complaints are liable to be dismissed on this ground alone. He further submitted that the complainants are already in possession of their respective units since long, therefore these complaints having been filed in the year 2023 are palpably barred by limitation. He further submitted that possession of the respective units had been delivered to the complainants complete in all respects, and they have furnished their satisfaction notes/undertakings in that regard.       
10.           First, we will deal with the objection taken by the opposite parties to the effect that since the complainants have purchased commercial units for which they earned assured return in the shape of lease amount and also the same are also being used by them for earning rent out of the same, by leasing out the said units, as such, these complaints are liable to be dismissed on this ground alone. It may be stated here that, in our considered opinion, the objection taken by the opposite parties has to be divided into two limbs.

                   Coming to the first limb of this objection to the effect that since the complainants have purchased the respective commercial units for which they earned assured return in the shape of lease amount in the shape of assured return, as such they are not consumers and therefore these complaints are liable to be dismissed, it may be stated here that in our considered opinion the mere fact that a person who has purchased a commercial unit and have earned assured return or lease amount as committed  by the developer/builder till the date of offer of possession, in itself is not sufficient to hold that he/she is not a consumer. Our this view is supported by the observations made by the Hon’ble National Commission in its order dated 23.01.2018 passed in First Appeals No.  1260 to 1262 of 2016 (M/s. Landmark Apartment Pvt. Ltd. Vs. Ms. Parnita Garewal, wherein while dealing with the same point of law, as to whether the complainants are consumers when they have purchased commercial space,  it was held that  they are Consumers as defined under Section 2 (i)(d) of the Act.  Even one of the SLP No. 9147 of 2018 (M/s. Landmark Apartment Pvt. Ltd. Vs. Krishna Prakash) filed by builder was dismissed by the Hon’ble Supreme vide order dated 16.04.2018 thereby upholding 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. Under these circumstances, it is held that irrespective of the fact that the complainants have purchased the respective commercial units in the project of the opposite party no.1 and have earned assured return or lease amount till the date of offer of possession, yet, that fact alone is not a sufficient ground to dismiss these complaints.

11.           Now coming to the second limb of objection taken by the opposite parties to the effect that on the one hand the complainants after taking over possession of their respective units without any protest have rented /leased out the same, are now receiving rental income out of the same from a third party and as such at this stage, neither they can seek refund of the amount paid nor can they say that physical possession of the units have not been delivered to them and therefore these complaints are liable to be dismissed on this ground alone.

                   In our considered opinion, to this extent, the objection raised by the opposite parties seems to be genuine, for the reasons recorded hereinafter.  Perusal of following documents placed on record reveals that after taking possession of their respective units, on the dates mentioned in the chart above, the complainants have leased out their respective units and  are earning rent out the same i.e. in CC No.48 of 2023 the complainant has executed  General Power of Attorney, Annexure R-16 with opposite party no.2/M/s Bravin Realtors Private Limited, whereafter she started getting monthly rent to the tune of Rs.17,570/- from July 2020 till 05.01.2023 totalling to Rs.6,32,520/-, as reflected in Ledger Account, Annexure R-17. Similarly, in CC No.49 of 2023, the complainant  has executed General Power of Attorney, Annexure R-16 with opposite party no.2/M/s Bravin Realtors Private Limited, whereafter she started getting monthly rent to the tune of Rs.11,713/- from February 2020 till 10.07.2022 totalling to Rs.4,21,668/-, as reflected in Ledger Account, Annexure R-18. In CC No.93 of 2023 also,   the unit in question stood leased out by the complainant by executing General Power of Attorney dated 31.01.2020, Annexure R-17 with opposite party no.2/M/s Bravin Realtors Private Limited, whereafter he started getting monthly rent to the tune of Rs.12,955/- from February 2020 till 10.09.2022 totalling to Rs.4,63,037/-, as reflected in Ledger Account, Annexure R-19.   

12.           Not even a single evidence has been placed on  record by the complainants to prove that they have ever raised any protest at the time of taking over possession of their respective units saying that it was not  legal and valid possession or that it was a paper possession. On the other hand, it has been proved on record that after taking over possession of their respective units; the complainants are utilizing the same by renting out the same to a third party. Thus, once it has been proved on record that the complainants have taken over possession of their respective units since long; that too without any protest; and are utilizing the same by earning lease/rent therefrom, in the manner stated above, as such, the doctrine of approbate and reprobate,which is a rule of equity and a species of estoppel, is applicable to the present cases. As such, under above circumstances, now the complainants are estopped from seeking any relief qua refund of the amount paid towards the said units or compensation on the ground that  physical possession of the said units has not been delivered.
13.           For the reasons recorded above, all the three complaints are dismissed with no order as to cost.   
14.           Pending applications, if any, stand disposed of, accordingly.
15.           Certified Copies of this order be sent to the parties, free of charge, forthwith and one copy thereof be placed in the connected case files, referred to above.
16.           The files be consigned to Record Room, after completion.

Pronounced

05.02.2024

 

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg