Chandigarh

StateCommission

CC/164/2014

Om Parkash Gagneja - Complainant(s)

Versus

Unitech Limited & Others - Opp.Party(s)

Divya Vishavjeet Singh & Indresh Goel

06 Feb 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                UNION TERRITORY, CHANDIGARH

 

                                   

Consumer Complaint No.	164 of 2014
Date of Institution	24.11.2014
Date of Decision	06/02/2015

 

Om Parkash Gagneja, aged about 78 years, H.No.417, Sector 37-A, Chandigarh – 160036, Customer Code No.AGR0002 with respect to Unit No.0063 (358.8 Sq. Yards) and Block No.B at Aspen Greens (Sector 106), Uniworld City, Mohali.

….…Complainant

 

V E R S U S

 

1. UNITECH Ltd., Real Estate Division (Marketing), Ground Floor, Signature Towers, South City-1, NH-8, Gurgaon – 122011, Haryana, through its Managing Director.

 

1. UNITECH Ltd., Regd. Office – 6, Community Centre, Saket, New Delhi – 110017, through its Managing Director.

 

1. UNITECH Ltd., SCO No.189-190-191, First Floor, Sector 17-C, Chandigarh, through its Manager.

 

1. HDFC Ltd., SCO No.153-155, Sector 8-C, Madhya Marg, Chandigarh 160008, through its Branch Manager.  

                                         .….. Opposite Parties

 

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                SH.DEV RAJ, MEMBER

                SMT.PADMA PANDEY, MEMBER 

                                                                       

Argued by:   

Sh.Indresh Goel, Advocate for the complainant.

Sh.Ishant, Advocate, Proxy for Ms.Vertika H.Singh, Advocate for Opposite Parties No.1 to 3.

Ms.Rupali Shekhar Verma, Advocate for Opposite Party No.4.

 

PER PADMA PANDEY, MEMBER

 

              In brief, the facts of the case, are that Opposite Parties No.1 to 3 had advertised the plots in the scheme known as Uniworld City, Mohali, during the year 2011. The complainant being a Senior Citizen, also looking for a peaceful abode to reside in the lap of nature away from intense urban life and, as such, he agreed to purchase plot No.0063, Block B in Aspen Greens, Sector 106, Uniworld City, Mohali. It was stated that Opposite Parties No.1 to 3 projected a very easy, smooth and lucrative offer to the complainant. The complainant was shown the plot physically, where all the roads had already been properly carved out and there was provision of sewerage and manholes alongwith streetlight and other features. The complainant was also assured that possession of the plot shall be given at the earliest. It was further stated that the complainant was offered plot No.0063, Block-B in Aspen Greens, Sector 106, Uniworld City, Mohali vide allotment letter dated 05.07.2011 (Annexure C-1). The total price of the plot was Rs.89,61,030/- under Down Payment Plan. Copy of the payment schedule is Annexure C-2. Thereafter, the Buyer’s Agreement was executed between the complainant and Opposite Parties No.1 to 3 on 08.09.2011 (Annexure C-3), vide which, possession of the plot was to be given at the end of the 12 calendar months, failing which, they were liable to compensate him by way of specific charges @Rs.50/- per sq. yards per month. The complainant was also assured that in case he wished to get some finance, Opposite Parties No.1 to 3 would themselves arrange a suitable agency for this purpose.

2.             It was further stated that Tripartite Agreement (Annexure C-11), which was executed amongst the complainant, Opposite Parties No.1 to 3 and Opposite Party No.4, on 08.09.2011, was only an attempt to lure the complainant, since no possession whatsoever was delivered, even after a period of three years. The complainant had regularly paid the installments, as per the schedule of payment. It was further stated that Opposite Parties No.1 to 3  further introduced Opposite Party No.4 to avail of the finance because the Bank (Opposite Party No.4) was having good relationship and understanding with Opposite Parties No.1 to 3.

3.             It was further stated that an amount of Rs.7,70,000/- was paid on 02.07.2011 and, thereafter, the complainant made various payments from time to time, as stipulated under the Agreement. He paid an amount of Rs.46 lacs approximately. It was further stated that strangely enough even after the lapse of so much time and regular payments made by the complainant, Opposite Parties No.1 to 3, refused to offer possession to him and started harassing him by asking for a sum of Rs.4.25 lacs approximately as interest, according to their own false calculations and other motives. The complainant received two letters (Annexures C-4 & C-5), which revealed that Opposite Parties No.1 to 3 raised demand of such a huge amount as arrears of interest, whereas, there was no question of interest because he had made every bit of payment in time, as per the schedule. It was further stated that although the complainant made all the installments and dues regularly, yet the Company harassed him by not adhering to the terms of the Agreement because neither any possession was offered nor the Company came forward to give alternate relief in terms of monthly compensation to be payable to him, in the event of non-delivery of possession.   

4.             It was further stated that Opposite Parties No.1 to 3 in order to cover up their fault, asked the complainant to pay an amount of Rs.4,25,372/- for some alleged delayed payments and penal interest by way of letter dated 05.05.2014. Ultimately, the complainant sent a legal notice dated 25.08.2014 (Annexure C-6) to Opposite Parties No.1 to 3 but to no avail. It was further stated that when Opposite Parties No.1 to 3  did not provide any relief,  the complainant again sent a legal notice dated 27.09.2014, Annexure C-7 (Colly.) to the Opposite Parties, which was duly replied to by Opposite Party No.4 (Annexure C-8). It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

5.             In their written statement, Opposite Parties No.1 to 3 stated that this Commission has no territorial Jurisdiction to adjudicate upon the present complaint because the property is in Mohali, Buyer Agreement was executed between the parties at New Delhi and moreover, the demand for the payment was raised by the replying Opposite Parties from their Gurgaon Office. It was further stated that the complainant did not fall within the definition of “Consumer” as per Section 2(d) of the Act, because he has been a permanent resident of his exclusively owned independent house measuring 338 Sq. Yards in Sector 37-A, Chandigarh since 1978, as per record of the official website of Chandigarh Administration (Annexure R-1) and he had bought this property for the purpose of resale.  It was further stated that the complainant himself is a deliberate defaulter of payments to be made towards the sale consideration of the plot, in question and as per settled law, he cannot claim any compensation towards the delay in possession of the said plot.  It was admitted that as per Clause 4.C of the Buyer Agreement, the replying Opposite Parties were liable to pay charges at the rate of Rs.50/- per sq. yard per month of the area of the plot, for the period of delay in offering possession of the said plot beyond the period of 12 months but the said clause was not applicable, if the offer of possession could not be made for the reasons, beyond the reasonable control of the developers. Moreover, Clause 4.C specifically stated that the said charges, if payable, were to be adjusted at the time of final notice of possession. It was further stated that Clause 4.A clearly stipulated that possession of the plot would be delivered within 12 months subject to force majeure circumstances. In the present case, the Company could not hand over possession of the plot due to the reasons of Global meltdown of the economy worldwide, wherein, the foreign investors, as anticipated by them (Opposite Parties), had refrained from any kind of investment, in India, and there was a cash crunch throughout. It was denied that the replying Opposite Parties at any point of time forced or lured the complainant to take any kind of financial support from Opposite Party No.4. The replying Opposite Parties and the HDFC Bank (Opposite Party No.4) are different entities. The relationship between the replying Opposite Parties, complainant and the Bank was governed absolutely by the Tri-Partite Agreement (Annexure C-11). It was further stated that the demand of Rs.4.25 lacs approximately was raised by the replying Opposite Parties on account of delay in making the payment. The complainant had opted for Down Payment Plan, as per the Agreement and he was bound to make the entire payment of Rs.81,87,618/- towards the sale price of the said plot but as per his own admission, he had deposited only Rs.45 lacs approximately. It was further stated that the permission to mortgage was issued by the Gurgaon Office of the replying Opposite Parties vide letter dated 9.9.2011 (Annexure C-10). It was further stated that Tri-Partite Agreement dated 8.9.2011 was executed between the parties at Chandigarh, but the same could not be used to confer territorial jurisdiction on this Commission, as none of the clauses of the Tri-Partite Agreement was challenged in the present case. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 to 3, nor they indulged into unfair trade practice.

6.             In its written statement, Opposite Party No.4 stated that the complainant was himself satisfied with the performance of Opposite Parties No.1 to 3,  executed a Tripartite Agreement and notwithstanding any dispute with Opposite Parties No.1 to 3, he in unequivocal terms agreed to pay the dues/repay the loan to the replying Opposite Party. Copy of Tripartite Agreement and mortgage documents are Annexure R-4/1 and R-4/2 (Colly.). It was further stated that the replying Opposite Party had no role in the sale of property by Opposite Parties No.1 to 3 to the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.4, nor it indulged into unfair trade practice.

7.             The complainant, filed replications to the written statements of Opposite Parties No.1 to 3 and Opposite Party No.4, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written versions of the Opposite Parties. 

8.             The Parties led evidence, in support of their case.

9.             We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

10.           The Counsel for the complainant, submitted that the complainant being a Senior Citizen, also looking for a peaceful abode to reside in the lap of nature away from intense urban life and, as such, he agreed to purchase the plot in the project of Opposite Parties No.1 to 3. The complainant was offered plot No.0063, Block-B in Aspen Greens, Sector 106, Uniworld City, Mohali vide allotment letter dated 05.07.2011 (Annexure C-1). He further submitted that price of the plot was Rs.89,61,030/-. He further submitted that Buyer’s Agreement was executed between the complainant and Opposite Parties No.1 to 3 on 08.09.2011 (Annexure C-3), vide which, possession of the plot was to be given at the end of the 12 calendar months, failing which, they were liable to compensate him by way of specific charges @Rs.50/- per sq. yards per month. He further submitted that Opposite Parties No.1 to 3  further introduced Opposite Party No.4 to avail of the finance because the Bank was having good relationship and understanding with them. He further submitted the Tripartite Agreement (Annexure C-11) was executed between the parties but possession was not delivered, even after a period of three years. He further submitted that the complainant regularly paid the installments, as per the schedule of payment but Opposite Parties No.1 to 3 refused to offer possession to him and demanded a sum of Rs.4,25,372/- for some alleged delayed payments and penal interest by way of letter dated 05.05.2014. He further submitted that the complainant sent a legal notice dated 25.08.2014 (Annexure C-6) to Opposite Parties No.1 to 3 but to no avail. He further submitted that the complainant again sent a legal notice dated 27.09.2014, Annexure C-7 (Colly.) to the Opposite Parties, which was duly replied by Opposite Party No.4 (Annexure C-8). He further submitted that this Commission has the territorial jurisdiction to entertain the complaint because the Tri-partite Agreement was executed amongst the complainant, Opposite Parties No.1 to 3 and Opposite Party No.4, at Chandigarh. He further submitted that the payments were also made at Chandigarh. He further submitted that the complainant is a consumer because Opposite Parties No.1 to 3 made false averments about the house and property of the complainant in order to escape their own liability. He further submitted that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice. 

11.           The Counsel for Opposite Parties No.1 to 3, submitted that this Commission has no territorial Jurisdiction to adjudicate upon the present complaint because the concerned property is in Mohali, Buyer Agreement was executed between the parties at New Delhi and the demand for the payment raised from their Gurgaon Office. He further submitted that the complainant did not fall within the definition of a “Consumer” as per Section 2(d) of the Act, because he has been a permanent resident of his exclusively owned independent house measuring 338 Sq. Yards in Sector 37-A, Chandigarh since 1978, as per record of the official website of Chandigarh Administration (Annexure R-1). He further submitted that the complainant purchased this property for resale. He further submitted that the complainant himself was a defaulter of payments to be made towards the sale consideration of the plot, in question and, as such, he could not claim any compensation towards the delay in possession of the said plot.  He further submitted that Opposite Parties No.1 to 3 could not hand over possession of the plot due to the reasons of Global meltdown of the economy world wide, wherein, the foreign investors, as anticipated by them (Opposite Parties), had refrained from any kind of investment, in India, and there was a cash crunch throughout. He further submitted that Opposite Parties No.1 to 3 at no point of time forced or lured the complainant to take any kind of financial support from Opposite Party No.4. He further submitted that the demand of Rs.4.25 lacs approximately was raised by the Opposite Parties No.1 to 3 on account of delay in making the payment. He further submitted that the complainant was bound to make the entire payment of Rs.81,87,618/- towards the sale price of the said plot but as per the averments made by the complainant, in the complaint, he had deposited only Rs.45 lacs approximately.

12.           The Counsel for Opposite Party No.4, submitted that the complainant himself satisfied with the performance of Opposite Parties No.1 to 3, executed a Tripartite Agreement and notwithstanding any dispute with Opposite Parties No.1 to 3, he in unequivocal terms agreed to pay the dues/repay the loan to it. She further submitted that Opposite Party No.4 had no role in the sale of property by Opposite Parties No.1 to 3 to the complainant. She further prayed for dismissal of the complaint, qua it.

13.           The principal question, that falls for consideration, is, as to whether, the complainant falls within the definition of consumer, as defined under Section 2(1)(d) (i) of the Act, or not. Admittedly, the plot bearing No.0063, Block-B in Aspen Greens, Sector 106, Uniworld City, Mohali, was purchased by the complainant, in the project of Opposite Parties No.1 to 3. The total price of consideration vide allotment letter dated 05.07.2011 (Annexure C-1), was Rs.89,61,030/- under Down Payment Plan. Opposite Parties No.1 to 3 had placed on record Annexure R-1 alongwith their written statement, to contend that the complainant is not a consumer. A bare perusal of the chart prepared by Chandigarh Administration (Annexure R-1) clearly shows that the complainant i.e. Mr.Om Parkash Gagneja s/o Sh.Nand Lal is the owner of House No.417, Sector 37-A, Chandigarh, measuring 338 Sq. Yards and the allotment date is clearly mentioned as 18.03.1978. It cannot be envisaged by farthest stretch of imagination that at this junction of his life, he had bought this property for use other than investment for resale purpose. On the other hand, the complainant has specifically denied para No.2 of the preliminary objections of Opposite Parties No.1 to 3, in his replication, stating that Opposite Parties No.1 to 3 made false averments about the house and his property in order to escape their own liability.  From the above, it is undoubtedly established that the complainant is the owner of residential unit/house bearing No.417, Sector 37-A, Chandigarh. The complainant, thus, purchased the plot, in question, bearing No.0063 in Block B (Aspen Greens) having area of approx. 300 Sq. Mtrs. (approx. 358.80 Sq. yards) in the Uniworld City, Sector 106, Mohali, Punjab, apart from the owner of independent House No.417, Sector 37-A, Chandigarh, just by way of investment, with a view to resell the same, as and when, there was escalation in the prices of real estate. The complainant, thus, purchased the plot for commercial purpose to earn huge profits. In Smt. Madhu Saigal and another Vs. M/s Omaxe Buildhome Pvt. Ltd. and another, Consumer Complaint No.270 of 2013, decided on 20.03.2014, by the National Consumer Disputes Redressal Commission, New Delhi, two senior citizens, namely Smt. Madhu Saigal, aged 73 years and Mr. Ashok Saigal, aged about 76 years, husband and wife, invested their life savings, to the tune of over Rs.2 crores, for the purchase of two apartments, in a project, in the hope of spending their retirement life, with their son,    Sh. Amit Saigal. In those circumstances, the National Consumer Disputes Redressal Commission, New Delhi, held that two apartments were purchased by the husband and wife, by way of investment, i.e. for commercial purpose, and they did not fall within the definition of consumers, and the consumer complaint was not maintainable. Not only this, in Jag Mohan Chhabra & Anr Vs. DLF Universal Ltd., IV (2007) CPJ 199 (NC),  a somewhat similar case, it was held by the National Commission, that the consumer, who purchases more than one flat, does not fall within the definition of  a consumer, and it could be said that the same were purchased by him/her, for commercial purpose. Civil Appeal No.6030-6031 of 2008 was filed against the decision of the National Commission, in Jag Mohan Chhabra’s case (supra), which was dismissed by the Apex Court, vide order dated 29.09.2008. Similar view was taken by the National Commission, in Saavi Gupta and another Vs. M/s Omaxe Azorim Developers Pvt. Ltd.,  Consumer Complaint No.208 of 2012 decided on 01.10.2012 and Chilukuri Adarsh Vs. ESS ESS VEE Constructions, III (2012) CPJ 315 (NC). In this view of the matter, it is held that the complainant does not fall within the definition of consumer, and, as such, the Consumer Complaint is not maintainable. In the present case, the complainant has not produced any documentary evidence to show that the said House No.417, Sector 37-A, Chandigarh, is not in his name and in the name of some other person. A bare perusal of Annexure R-1 clearly proves that the complainant is the owner of House No.417, Sector 37-A, Chandigarh. It is out of place to mention that the complainant being an old and aged person, a senior citizen is residing in his own house and that in Chandigarh since 1978. It is commonly understood even by layman that now at this age what was the need for the complainant to apply for a fresh plot with Opposite Parties No.1 to 3, which brings us a definite conclusion that the purpose behind the purchase of the plot, in question, is solely for fetching a huge profit due to speculation in the price of the plot. So, it is clearly proved that the complainant is not a consumer and the complaint is liable to be dismissed.

14.           For the reasons recorded above, the complaint is dismissed, being not maintainable, as the complainant is not held to be consumer, with no order as to costs.

15.           The complainant shall, however, be at liberty to resort to any other legal remedy, which may be available to him, for redressal of his grievance.

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

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

Pronounced.                                                                                              

06.02.2015                                                                       Sd/-

[JUSTICE SHAM SUNDER [RETD.]

                                                                                 PRESIDENT

 

                                                                                                            Sd/-                                 [DEV RAJ]

                                                                                                MEMBER

 

Sd/-

[PADMA PANDEY]

MEMBER

rb