Chandigarh

DF-I

CC/839/2015

Sudarshan Mehan - Complainant(s)

Versus

BCL Homes Ltd - Opp.Party(s)

Deepak Aggarwal

17 Mar 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I

U.T. CHANDIGARH

Sudarshan Mehan son of Sh. Krishan Kumar, resident of House No. 489, Vinoba Basti, Sri Ganganagar, Rajasthan.

                                      ...  Complainant.

Versus

1.      BCL Homes Limited having its Registered Office at Shop No.140, Railway Road, Village Dariya, U.T. Chandigarh, through its Manager/ Managing Director.

2.      BCL Homes Limited having its corresponding address #253, Sector 7, Panchkula, through its Manager/Managing Director.

3.      BCL Homes Limited village Kishanpura, (Adj. Sector 20, Panchkula), NAC Zirakpur, District Mohali, through its Manager/ Managing Director.

…. Opposite Parties.  

1.      Sudarshan Mehan son of Sh. Krishan Kumar, resident of H.No. 489, Vinoba Basti, Sri Ganganagar, Rajasthan.

2.      Hitesh Mital son of Sh. S.S. Mital, resident of 36, K Block, Sri Ganganagar.

3.      Basu alias Vasu Mittal son of Sh. S.S. Mital, resident of 36, K Block, Sri Ganganagar.

...  Complainants

Versus

1.      BCL Homes Limited having its Registered Office at Shop No.140, Railway Road, Village Dariya, U.T. Chandigarh, through its Manager/ Managing Director.

2.      BCL Homes Limited having its corresponding address #253, Sector 7, Panchkula, through its Manager/Managing Director.

3.      BCL Homes Limited village Kishanpura, (Adj. Sector 20, Panchkula), NAC Zirakpur, District Mohali, through its Manager/ Managing Director.

…. Opposite Parties.  

BEFORE:   SH.S.S. PANESAR              PRESIDENT

MRS.SURJEET KAUR         MEMBER

SH. S.K. SARDANA            MEMBER

PER S.K. SARDANA, MEMBER

1.           The consumer complaints, captioned above, involve identical questions of fact and law, as such, the same are being disposed of by this common order.
2.           The facts, for convenience, have been taken from consumer complaint No. 839 of 2015  – Sudarshan Mehan Versus BCL Homes Limited and Others.
3.           The facts, in brief, are that the daughter and the son of the Complainant namely Nitika and Nitin Mehan were allotted Plots measuring 200 Sq. Yds. @ Rs.13,000/- per sq. yards by the Opposite Parties. As per the terms & conditions of the allotment, both had deposited 10% of the total amount on 01.06.2011. The Complainant, thereafter, paid an amount Rs.6,00,000/-, through RTGS, to the Opposite Parties, towards the payment of Plot allotted to his her daughter. Eventually, the said allotment was got transferred in favour of the Complainant, by his son and daughter. However, since there was no progress/development at the site, the Complainant demanded his money back, along with interest, on 19.5.2014. As a sequel thereto, the Opposite Parties allured the Complainant to buy 1 Bedroom flat, with an assurance to handover the possession thereof immediately. The Complainant agreed to the said proposal, upon which the Opposite Parties, by adjusting the amount of Rs.6,00,000/- paid earlier, issued the re-allotment letter dated 17.07.2014. It has been alleged that thereafter, the Complainant made repeated visits to the Opposite Parties, to take possession of the flat, but every time the Opposite Parties dilly dallied the matter on one pretext or the other. Ultimately, on 28.9.2015, when the Complainant visited the site, to his utter surprise, the Opposite Parties failed to construct the flats complete in all respects.  Accordingly, the Complainant requested the Opposite Parties to refund his amount, along with interest, as they have failed to construct the flat, complete in all respects, and deliver the possession of the same, but the Opposite Parties flatly refused to return the amount deposited by the Complainant.  Hence, alleging the aforesaid act & conduct of the Opposite Parties as deficiency in service and unfair trade practice, the Complainant has filed the present Complaint.
4.           Notice of the complaint was sent to Opposite Parties seeking their version of the case.
5.           Opposite Parties resisted the allegations of the Complainant, inter alia, pleading that Complainant is a property dealer and made the booking on the name of his son and daughter only for profit making purposes & not for personal use and later get the bookings made transferred in his favour vide re-allotment letter dated 17.7.2014, which the Opposite Parties acceded to showing the gesture of beneficence. It has been pleaded that neither the Complainant requested the Opposite Parties for refund of the amount nor visited the office of the Opposite Parties, as alleged. It has been urged that the Complainant is investor and for such reason no date of possession was mentioned at the time of allotment. The remaining averments were denied, being false and frivolous. Thus, denying any deficiency in service on their part, prayer for dismissal of the complaint has been made.
6.           The Complainant also filed replication to the reply filed by the Opposite Parties, wherein the averments as contained in the complaint have been reiterated and those as alleged in the reply by the Opposite Parties has been controverted.
7.           We have heard the learned Counsel for the Complainant and have gone through the entire documents on record alongwith the written arguments filed on behalf of the Opposite Parties.
8.           The sole grouse of the Complainant is that despite lapse of considerable time, the Opposite Parties on the one hand withheld his hard earned amount of Rs.6,00,000/- and on the other hand,  they failed to offer the possession of the booked flat to him, despite repeated requests and personal entreaties. It is the case of the Complainant that infrastructure of the construction site is not complete and till date the Opposite Parties have not clarified that when they will be able to give the possession and also even during the proceedings of the present case the Opposite Parties failed to make such kind of offer to hand over the possession of the flat to the Complainant.   
9.           The stand taken by the Opposite Parties is that the complainant is not ‘Consumer’ as defined under the Consumer Protection Act, 1986.  As per Opposite Parties, the complainant had invested in the property for commercial purposes and speculative investments and not for his personal use and therefore, he is not covered under the definition of consumer.  We have gone through the documentary evidence led by the parties in this regard. The Opposite Parties have failed to show the indulgence of the complainant in the business activity of buying and selling properties. Furthermore, the Complainant has specifically urged that he wanted to personally use the flat booked with the Opposite Parties, thereby enabling his children to settle therein. Therefore, the plea of the Opposite Parties is not sustainable and the same is rejected accordingly. Here we are fortified by 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 plea 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” 

                   In the instant case since the Opposite Parties have failed to produce on record any evidence that the complainant has booked the flat in question for earning profit. Hence the afore-extracted judgment is squarely applicable to the facts of the instant case. Thus, plea taken by the Opposite Parties that the flat was booked for commercial purpose is rejected.

10.           As per Clause 17 of the Re-Allotment Letter dated 17.7.2014 (Annexure C-9), it has been specifically assured to the Complainant that the possession of the apartment would be handed over to him within a period of 12 months after the draw of lots. However, the Opposite Parties are silent on the aspect of the draw of lots. The Opposite Parties have urged that time was not the essence of the contract and that the period of 12 months for delivery of possession was given on estimate basis subject to the force majeure circumstances. In our opinion, the Opposite Parties 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 time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s), is itself an unfair trade practice on the part of the Opposite Parties. The Opposite Parties are 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. Versus 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”.

                   In view of above, the stand taken by the Opposite Parties stands rejected.

11.           The next contention of the complainant is that the Opposite Parties have indulged in unfair trade practice by booking the Flat/Unit without getting the necessary sanctions/ permissions/ approvals from the competent authorities. We find force in this contention of the complainant because the Opposite Parties have failed to place on record any document to show that they have obtained the sanctions/ permissions/ approvals from the competent authorities prior to the booking of the Flat/Unit. Otherwise also, according to law, they could not start booking of the Flat/Suite, and obtain money from the innocent consumers, before actually the licence and all the permissions and sanctions had been granted to them, by the Competent Authority. In case Kamal Sood Vs. DLF Universal Ltd., reported as  III(2007) CPJ-7 (NC),  it  was held that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, and schematic building plan. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction for construction etc., in the first instance, and, thereafter, recover the consideration money from the purchasers of the flats/ building. The ratio of law, laid down, in the aforesaid case, is squarely applicable to the facts and circumstances of the instant case. If the bookings are made and the booking amount is collected, before obtaining the necessary sanctions, permissions, licenses and without getting the necessary approvals, the same amounts to indulgence into unfair trade practice, on the part of the builder. Moreover, the complainant cannot be forced to wait for the delivery of the possession for an unlimited period and as such he was right in seeking refund of the deposited amounts.
12.           Similar facts have been pleaded in the other complaint.  Therefore, in both the cases, deficiency in service as well as unfair trade practice is proved.  In view of the above discussion, we are of the opinion that all the complaints deserve to be allowed. The same are accordingly allowed. The Opposite Parties are, jointly & severally, directed as under :-

1. To refund Rs.6,00,000/- (in Consumer Complaint No.839 of 2015) & Rs.11,20,000/- (in Consumer Complaint No.842 of 2015) to the respective complainants, along with interest @9% p.a. from the date of deposit(s), till realization.
2. To pay Rs.10,000/- as costs of litigation in each complaint.

                   This order shall be complied with by the Opposite Parties within one month from the date of receipt of its certified copy, failing which, they shall be liable to pay the amounts at Sr. No. (i) above along with interest @ 12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation as at Sr. No.(ii) above.

13.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

17.03.2017                                                                                      Sd/-

(S.S. PANESAR)

PRESIDENT

                                                                                                Sd/-

(SURJEET KAUR)

MEMBER

                                                                                                          Sd/-

 (S.K. SARDANA)

MEMBER

“Dutt”