Chandigarh

DF-I

CC/38/2016

Bhupinder Singh Gill - Complainant(s)

Versus

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

In person

06 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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

Bhupinder Singh Gill s/o Sardar Tarlochan Singh r/o House No.3296, Sector 19D, Chandigarh.

….Complainant

Vs.

1.   Ansal Lotus Melenge Projects Pvt. Ltd. through its Director/Authorized representative, Regd. Office 1/18-B, Asaf Ali Road, New Delhi 110002.

2.   Ansal Lotus Melenge Office Pvt. Ltd. through Manager/authorized representative Regd. Office; SCO 183/184, Sector 9C-madhya Marg, Chandigarh.

…… Opposite Parties 

BEFORE:  

DR. MANJIT SINGH                  PRESIDENT

MRS.SURJEET KAUR             PRESIDING MEMBER

SH. SURESH KUMAR SARDANA     MEMBER

PER SURESH KUMAR SARDANA, MEMBER

                The facts, in brief, are that the complainant applied for allotment of a service apartment in the project of the OPs. The price of the service apartment No.C-429 with an appropriate area of 627 sq. ft was Rs.18,81,000/-, which was allotted to him. As per complainant he paid a total amount of Rs.16,87,036/- as per payment plan to the OPs towards the price of Unit No.C-429.  It is pleaded that since the complainant at the time of booking of apartment demanded the unit at third floor therefore, the OPs re-alloted him Unit No.
C-326 at third floor from fourth floor.  It is alleged that when the complainant visited the site he found that the entire construction work is stand still and the issue was taken with the OPs the could not give any satisfactory reply. Therefore, the complainant requested OP No.2 to pay compensation for delayed possession but to no effect. Even a legal notice dated 15.8.2015 was served upon the OPs but nothing fruitful came out. Alleging that the aforesaid, acts amounted to deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has filed the instant complaint.

2.      Notice of the complaint was sent to Opposite  Parties, seeking their version of the case
3.           The OPs in their joint reply while admitting the factual matrix of the case stated that the complainant is not a consumer as he purchased the unit in question for commercial purpose for speculative investment.  It is   denied that the complainant was not delivered the possession of the unit in question time period stipulated in the allotment letter. It is averred that as per clause 11 of the Allotment letter time was not the essence of the contract and the period of 18 months for delivery of possession was given on estimate basis.  Had time been the essence of the contract then phrase proposed to be delivered would not have been used and instead a definite period would have been given for delivery of possession. The remaining allegations were denied, being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.
4.      The complainant has filed a rejoinder, wherein he has reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Parties.
5.      Parties were permitted to place their respective evidence on record, in support of their contentions.
6.      We have heard the complainant in person and have perused the record carefully.
7.      The first issue to be determined is as to whether the complaint falls within the definition of Consumer Protection Act, 1986 or not.  According to the OPs the complainant purchased the apartment in question for commercial purposes to earn profit on escalation. We do not agree with this contention of the OPs in view of the judgment passed  by the Hon’ble National Commission, titled as Kavit Ahuja Vs. Shipra Estate Limited and Jai Krishna Estate Developers Private Limited, Consumer Complaint No.137 of 2010, decided on 12.02.2015. Similar objection was raised, in that case. The National Commission while interpreting the provisions of Section 2 (1) (d) of the Act, held as under:-

“Going by the Dictionary meaning of the expression ‘Commerce’ as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged.  In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services.  It would ordinarily include activities such as manufacturing, trading or rendering services.  In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses.  If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose.  A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment.  He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc.  Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him.  That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).

Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity”   

8.      In the instant case the OPs have failed to produce on record any evidence that the complainant has purchased the apartment in question for earning profit. Hence the afore-extracted judgment is squarely applicable to the facts of the instant case. Thus,  objection of the OPs that the apartment was purchased for commercial purpose is rejected.
9.      The second issue to be determined is as to when the possession of the apartment in question was required to be delivered by the OPs. The contention of the OPs is that as per clause 1 of the allotment letter the apartment in question was proposed to be delivered within 18 months meaning thereby it was a tentative time period subject to the force majeure circumstances and time was not the essence of the contract. In our opinion the OPs have failed to prove on record any force majeure circumstances, which prevented them to deliver the possession of the unit within stipulated period.  The opposite parties also cannot evade their liability, merely by saying that since the word proposed/tentative was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof. It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/s Sahajan and Hi Tech Construction Pvt. Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

10.         In view of above,  the plea taken by the OPs in their written reply stands rejected. Hence, we find merit in the complaint and the same deserves to be allowed.
11.      In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed, qua them. The Opposite Parties are, jointly and severally, directed  to:-

[a]  To refund the amount deposited by the  complainant with interest @9% p.a. from the date of deposit till realization.

[b]  To make payment of Rs.1.00 lac to the complainant towards compensation for causing mental and physical harassment.

[c]  To make payment of Rs.15,000/- to the complainant as litigation expenses.

          The above said order be complied with by the Opposite Parties, within 45 days from the date of receipt of its certified copy, failing which the OPs shall pay interest @12% p.a. on the amount at Sr. No.[a] from the date of deposit till realization & [b] from the date of filing of the present Complaint, till actual payment, besides payment of litigation costs.

     The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

6.1.2017                        DR. MANJIT SINGH

PRESIDENT

SD/-

 (SURJEET KAUR)

PRESIDING MEMBER

SD/-

 (SURESH KUMAR SARDANA)

MEMBER