Punjab

StateCommission

CC/296/2018

Sukhvir Singh - Complainant(s)

Versus

Ansal Lotus Melange Projects Pvt. Ltd. - Opp.Party(s)

Kulwinder Singh

04 Dec 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,    PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No.296 of 2018

 

                                                          Date of Institution:    17.04.2018

                                                          Order Reserved on:  28.11.2018  

                                                          Date of Decision  :    04.12.2018

 

Sukhvir Singh s/o late Sh. Ajit Singh, Village Sante Majra, Tehsil Kharar, District Mohali.

 

 

                                                                                       …..Complainant

                                                Versus

 

Ansal Lotus Melange Projects Pvt. Ltd (City Centre) Registered office at SCO 183-184, Sector 9-C, Chandigarh through its Chairman-cum-Managing Director/Director/Incharge  .

                                                                                         ..Opposite party                                                                                                                                                                     

         

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

               Smt. Kiran Sibal, Member.

Present:-

          For the complainant         :  Sh.Kulwinder Singh, Advocate

          For opposite party :  Sh. R.K. Bhatia, Advocate.

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            

                                      AND

                   Consumer Complaint No.297 of 2018

 

                                                          Date of Institution:    17.04.2018

                                                          Order Reserved on: 28.11.2018  

                                                          Date of Decision    : 04.12.2018

 

Gurmail Singh s/o late Sh. Ajit Singh, r/o Village Sante Majra, Tehsil Kharar, District Mohali.

                                     

                                                                                       …..Complainant

                                                Versus

 

Ansal Lotus Melange Projects Pvt. Ltd (City Centre) Registered Office at SCO 183-184, Sector 9-C, Chandigarh through its Chairman-cum-Managing Director/Director/Incharge                                                                                                                                                                                                                                                   ….Opposite Party

         

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

               Smt. Kiran Sibal, Member.

Present:-

          For the complainant         :  Sh. Kulwinder Singh, Advocate

          For opposite party :  Sh. R.K Bhatia, Advocate.

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                               

                    Since common controversy of facts and law is involved in the above referred complaints and as such, they are being disposed of by this common order, which shall be pronounced in Consumer Complaint no. 296 of 2018 titled as Sukhvir Singh versus Ansal Lotus Melange Projects Pvt. Ltd.

Facts of Consumer Complaint No.296 of 2018

 

2.                 Complaint No.296 of 2018 has been filed by Sukhvir Singh U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against the OP on the averments that OP floated  a scheme under the name and style of ‘Ansal Lotus Melange Projects Pvt. Ltd situated at Kharar-Landran Road Mohali for providing commercial space in the above said project. The complainant wanted to start his own business for earning his livelihood by means of self-employment by opening grocery shop at commercial space and approached OP in that regard. OP informed him that they are A Class builders, who have  been constructing and developing the units for commercial and residential purposes and also assured him regarding various statutory approvals with it. He was further informed that process for seeking the approvals was in process and approvals would be obtained and space would be allotted as soon  as possible and in maximum within 36 months from the date of booking thereof. On assurance of OP, he booked commercial space in the proposed retail-cum-commercial complex in “City Centre” situated at Kharar-Landran Road Mohali, vide application dated 16.02.2011. He deposited the amount of Rs.3,50,000/- as booking amount and Rs.9,012/- as service tax totaling Rs.3,59,012/- vide cheque no.777741 with OP.  On 14.03.2011, OP allotted commercial space no. SR-5FF with an approximate super area of 1588 sq. ft for total consideration of Rs.35,00,000/- calculated at Rs.2204/- per sq. ft in the proposed retain-cum-commercial office complex City Centre Mohali to complainant. As per construction linked payment plan issued by OP, he further deposited amount of Rs.5,25,000/- as 2^nd and 3^rd installments and Rs.13,519/- as service tax, total Rs.5,38,519/- vide cheque no.777742 with OP on 16.03.2011. Even after receiving 25% amount of Rs.8,97,531/-from him, OP failed to start the work for longtime and failed to demand the next installment of 10%, which was to be paid on casting of lower ground floor roof slab by it. He approached OP to show the approvals of land, where the commercial space was booked by him, but OP failed to do so. As per terms and conditions no. 11 of the allotment letter, OP was to deliver the possession of above commercial space within 36 months from the date of booking, but OP failed to give the same within promised period of time i.e. 16.02.2014. On 19.01.2015, he visited the office of OP to obtain possession and to show the statutory approvals of space booked by OP to him, but OP failed to show any approvals of the project to him.  OP kept the huge amount of approximately Rs.9 lac from him from March 2011 till January 2015 without any valid reason.  Due to above said reasons, he approached OP to cancel the booking of above said commercial space and to refund the deposited amounts, but OP failed to cancel the booking of commercial space no.SR-5FF and further to refund the amounts deposited by him. Therefore, he has filed complaint and prayed that OP be directed to refund the amount of Rs.8,97,531/- along with interest @ 18% per annum to him, besides Rs.5 lac as compensation for mental harassment and Rs.55,000/- as cost of litigation as well.

3.                 Upon notice, OP appeared and filed written reply and contested the complaint of the complainant raising preliminary objections that complaint is an abuse of process of law and is liable to be dismissed on this ground alone. The complainant has failed to disclose that his allotment has already been cancelled by OP due to non-compliance of the terms of allotment agreement as well as per payment plan. The complainant booked the shop in question for commercial purposes only. As per clause 5 of the said agreement, if the payment was not received within stipulated period given in the installment call notice or in the event of breach of any terms and conditions of the allotment, the allotment would be cancelled and 20% of the price of the unit, which shall constitute the earnest money shall be forfeited and balance shall be refunded without any interest. As per clause 6 of the said agreement, timely payment of the installments as per call notice was the essence of the contract. The complainant paid Rs.8,75,000/- till 16.03.2011 and thereafter, he stopped making further payments despite various reminder letters to him.  Many demand letters and telephonic calls and reminder have been given to complainant for making the balance payment of commercial plot by OP, but to no avail.  The payment plan adopted by the complainant along with terms and conditions of the agreement are binding upon complainant. The complainant made last payment on 16.03.2011 and in all, he has paid only Rs.8,75,000/- of basic sale price and Rs.22,531/- as service tax, whereas as per the payment plan adopted by him, he was bound to pay entire sale consideration before due date. OP controverted  other averments of the complainant even on merits and it prayed for dismissal of the complaint.

4.                The complainant tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-5 and closed the evidence. As against it; OP tendered in evidence affidavit of Sh.Vishwa Parkash Authorized Representative of OP as Ex.OP-A  along with copies of documents Ex.OP-1 to Ex.OP-8 and closed the evidence.  

Fact of Consumer Complaint No.297 of 2018

 

5.                Complaint No.297 of 2018 has been filed by complainant Gurmail Singh U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OP on the averments that OP floated  a scheme under the name and style of ‘Ansal Lotus Melange Projects Pvt. Ltd situated at Kharar-Landran Road Mohali for providing commercial space in the above said project. The complainant wanted to start his own business for earning his livelihood by means of his self-employment by opening readymade garment shop at commercial space and approached OP about that. OP informed him that they are A Class builders, who have been constructing and developing the units for commercial and residential purposes and assured him regarding obtaining of various statutory approvals by OP. He was further informed that process for seeking the approvals was in process and approvals shall be obtained and space would be allotted to him as soon  as possible and in maximum within 36 months from the date of booking. On assurance by OP, he booked commercial space in the proposed retail-cum-commercial complex in “City Centre” situated at Kharar-Landran Road Mohali, vide application dated 16.02.2011. He deposited the amount of Rs.3,50,000/- as booking amount and Rs.9,012/- as service tax totaling Rs.3,59,012/- vide cheque no.241044 with OP.  On 14.03.2011, OP allotted commercial space no. SR-4FF with an approximate super area of 1588 sq. ft for total consideration of Rs.35,00,000/- calculated at Rs.2204/- per sq. ft in the proposed retail-cum-commercial office complex City Centre Mohali to complainant. As per construction linked payment plan issued by OP, he further deposited amount of Rs.5,25,000/- as 2^nd and 3^rd installments and Rs.13,519/- as service tax, total Rs.5,38,519/- in cash with OP on 18.03.2011. After receiving 25% amount of Rs.8,97,531/-, OP failed to start the work for longtime and failed to demand the next installment of 10% from complainant which was to be paid on the casting of lower ground floor roof slab. He approached OP to show approvals of land where the commercial space booked by him existed, but OP failed to do so. As per terms and conditions no. 11 of the allotment letter, OP was to deliver the possession of commercial space within 36 months from the date of booking, but OP failed to give the same within promised period of time i.e. 16.02.2014. On 19.01.2015, complainant visited the office of OP to hand over the possession and to show statutory approvals of space booked by him, but OP failed to show any approvals to him.  OP kept the huge amount of approximately Rs.9 lac from him from March 2011 till date without any valid reasons.  Due to above reasons, he approached OP to cancel the booking of above said commercial space and to refund the amount, but OP failed to cancel the booking of commercial space no.SR-4FF and to refund the amounts deposited by him. Hence, he has filed complaint and prayed that OP be directed to refund the amount of Rs.8,97,531/- along with interest @ 12% per annum, besides Rs.5 lac as compensation for mental harassment and Rs.55,000/- as cost of litigation.

6.                Upon notice, OP appeared and filed written reply and contested the complaint of the complainant raising preliminary objections that complaint is an abuse of process of law and is liable to be dismissed on this ground alone. The complainant has failed to disclose that his allotment has already been cancelled by OP due to non-compliance of the terms of allotment agreement as well as payment plan. The complainant booked the shop in question for commercial purposes only. As per clause 5 of the said agreement, if the payment is not received within stipulated period given in the installment call notice or in the event of breach of any terms and conditions of the allotment, the allotment would be cancelled and 20% of the price of the unit, which shall constitute the earnest money shall be forfeited and balance shall be refunded without any interest. As per clause 6 of the said agreement, timely payment of the installment as per call notice was the essence of the contract. The complainant paid only Rs.8,75,000/-  of basic sale price and Rs.22,531/- as service tax whereas as per payment plan adopted by him, he was bound to pay the entire sale consideration before due date. After March 2011, the complainant failed to pay even a single penny to OP despite sending him service notices/reminders. OP controverted  other averments of the complainant even on merits and it prayed for dismissal of the complaint.

7.                The complainant tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-5 and closed the evidence. As against it; OP tendered in evidence affidavit of Sh.Vishwa Parkash Authorized Representative of OP as Ex.OP-A  along with copies of documents Ex.OP-1 to Ex.OP-8 and closed the evidence.

8.                We have heard learned counsel for the parties and have also examined the evidence on the record. First point for controversy in this case as put fourth by counsel for OP is that complainants are not proved to be consumers of OP because they have purchased commercial space in the proposed retail-cum-commercial office complex ‘City Centre’ situated at Mohali from OP for speculative purposes. The explanation to Section 2(i)(d) of Consumer Protection Act, 1986 exempts the hire of service or purchase of goods of commercial nature for the consumer on his fulfilling its ingredients. The complainant is required to prove that he has purchased hired or purchased the commercial services or goods for the purpose of earning his livelihood exclusively by means of self-employment by the purchaser to bring him within the definition of Consumer under above provisions of law. The complainant specifically pleaded this fact in paragraph no. 3 of the complaint that he wanted to start his own business for earning his livelihood by means of his self-employment by opening grocery shop in the above space. Even affidavits has also been placed on record by Sukhvir Singh complainant Ex.C-A in Consumer Complaint no. 296 of 2018 stating this fact that he wants to start his business for earning his livelihood by means of his self-employment by opening grocery shop thereat. He also tendered his affidavit Ex.C-A on the record specifically stating that he purchased this space to start his own business for earning his livelihood by means of self-employment. The onus now has been shifted to OP to prove that this requirement of complainant is not genuine. Other than, mere affidavit of Sh. Vishwa Prakash authorized signatory of OPs Ex.OP-A on the record, there is no other evidence on the record by OP to disprove this assertion of the complainant on oath. Even Vishwa Prakash authorized signatory of OPs has nowhere stated in his affidavit Ex.OP-A that he has personal knowledge regarding this fact that complainant dealt in other commercial businesses also. There is nothing on the record to establish that complainant purchased the properties for resale purposes being a property dealer. We have no ground to discard the assertion of the complainant on oath to this effect that he purchased it for earning his livelihood exclusively by means of his self-employment. He is thus held to be ‘consumer’ by rejecting the contention of OPs on this point.

9.                The next point for adjudication in the above-referred complaints is whether complainants are entitled to refund of the deposited amounts by them on account of deficiency in service on the part of OP or not. The complainants pleaded in their respective complaints and also so stated in their respective affidavits on oath that 36 months period was fixed for delivery of possession of the allotted properties after obtaining all the necessary approvals. Allotment letter dated 14.03.2011 is Ex.C-2 on the record. Total sale price is Rs.35 lac. Clause F of the allotment letter states that approval of the project has been obtained vide letter no.513/CTP(SS)-09/549 dated 24.07.09 for promoting and developing the proposed retail-cum-commercial office complex. It was constructed linked installment plan and complainant was required to pay the installments as per stages of construction only. The complainant paid the amount of Rs.5,25,000/- as 2^nd and 3^rd installment on 16.03.2011 to OPs. The complainant paid Rs.3,50,000/- towards booking charges on 16.02.2011. It is constructed linked installment plan and OP expected the complainant to pay the installments as per payment schedule strictly in accordance with construction on the spot. The submission of counsel for complainant is that he paid the amounts to OP till the stage of start of excavation in this case or till commencement of the construction. Whatever the case may be, complainants have not paid the rest of the amounts to OP as per construction linked installment plan. As per clause 23 of the allotment letter, OP was to hand over the possession on clearance of balance payments by the complainants to OP after receipt of completion certificate from the competent authority. The submission of counsel for complainants is that OPs has not even started the construction and as such, the complainants were justified in withholding the payments of the amounts from OP entitling them to refund of the deposited amount. The evidence on the record has been carefully perused by us with the able assistance of counsel for the parties on both the complaints. Ex.OP-1 is letter dated 12.09.2013 has shown that complainants paid only sum fractional amount to OP out of the total sale price. OPs wrote letter to complainant for payment of OP, vide Ex.OP-1 dated 12.09.2013. Ex.OP-2 dated 09.10.2014 followed by Ex.OP-3 and to Ex.OP-5. OPs sent impugned notice to complainant for cancellation of the allotment letter vide Ex.OP-6 on 18.02.2016 for not making the balance payments other than two installments only in addition to booking amount. Ex.OP-7 has proved that site plan was approved for this project by Executive Officer Municipal Council on 24.07.2009. Ex.OP-8 is partial completion certificate issued by Executive Officer Kharar on 18.03.2015 to OP followed by Ex.OP-9 partial completion certificate dated 14.10.2016.

10.               On evaluation of entire evidence on the record and from submissions of counsel for the parties, we are of this view that both parties are expected to meticulously follow the terms and conditions of the allotment letter. None of the party can be allowed to back out of the same. The complainant paid payments uptil three stages to OP, whereas the total stages, which were constructed linked for payment of the linked installment plan were up to 11 stages, as agreed upon between the parties. The complainants all of sudden stopped the payments of rest of the balance amounts to OP. On the other hand, partial completion certificate Ex.OP-9 dated 14.10.2016  issued by Executive Officer Municipal Council Kharar has shown that OPs continued with the construction of the project and have not abandoned it in the midway. The complainants seek refund of the amount after paying the last amount on 18.03.2011 only. As per clause 11 of the allotment letter, the possession was to be delivered within three years from the date of booking of allotment by OP. The complainants themselves have not paid the installments to OP due from them and left making the payments in the way. OP served cancellations of the allotment letter to complainant vide Ex.OP-6 dated 18.02.2016 for non-payment of the amount of installments by them. In this view of the matter, the complainant could not establish it on the record that OP has not started the construction of the project at all justifying them to seek refund of the amounts, as pleaded by them. Issuance of partial completion certificate by the  competent authority to OP lends credence to this fact that OP continued with the construction and have not left it in the midway. It were complainants who have not paid the balance amounts to OP to perform their part of the agreement. The project can be completed, if the allottes pay the balance amount to promoters. Law relied upon by complainant by National Commission in Chilukuri Adarsh versus Ess Ess Vee Constructions reported in 2012(3) CPJ 315  is not applicable in this case, because complainant has been held to be consumer in this case.

11.               Consequently, we find no deficiency in service on the part of OPs and rather complainants have been found deficient in not making the payment of rest of the construction linked installment plan to OPs at different stages on their part. As per Clause 5 of the allotment letter dated 14.03.2011, if payment is not received by the promoter within stipulated period given in the installment call notice or in the event of breach of any of the terms and conditions of this allotment by the allottee, the allotment will be cancelled and 20% of the price of the unit which constitutes the earnest money shall be forfeited and balance amount will be refunded without any interest by the promoter. The parties are strictly bound by the terms and conditions incorporated in Clause 5 of the allotment letter and OP is entitled to forfeit 20% of the price of the unit and to refund balance amounts to complainants with interest @ 9% per annum from the date of deposits till actual payment because it will be quite oppressive and onerous to the complainants, if OP is allowed to retain the interest over the deposited amounts with it. Deduction of 20% of the price of the unit constitutes the earnest money shall be forfeited by OPs only as per Clause 5 of the allotment letter and not the remaining amount deposited by complainant.

12.            As a result of our above discussion, we partly accept both complaint No. 296 of 2018 and complaint no. 297 of 2018 as above and direct OP to refund the balance amounts to complainants with interest @ 9% per annum from the date of their respective deposits out of the deposited amounts of complainants by deducting 20% of the price of the unit as earnest money only as forfeiture of it.

13.               Arguments in the above complaints were heard on 28.11.2018 and the order were reserved. Certified copies of the order be communicated to the parties under rules.

14.               The above complaints could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                        (KIRAN SIBAL)

                                                                             MEMBER

 

December 4, 2018                                                         

(ravi)