Chandigarh

StateCommission

CC/144/2016

Daljit Singh Sandhu - Complainant(s)

Versus

BCL Homes - Opp.Party(s)

Sh. Ravinder Pal Singh, Adv.

19 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint No.	:	144 of 2016
Date of Institution	:	18.04.2016
Date of Decision	:	19.07.2016

 

Daljit Singh Sandhu son of Sh.Amarjit Sandhu, resident of House No.1533, Sector 33-D, Chandigarh.

…Complainant

V e r s u s

1. BCL Homes Ltd., Registered Office at Shop No.140, Railway Station Road, Village Dariya, U.T., Chandigarh, through its Managing Director/Director.
2. BCL Homes Ltd., Village Kishanpura, NAC Zirakpur, District Mohali, Punjab, through its Project Manager/Authorized Representative.

....Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS.PADMA PANDEY, MEMBER

 

Argued by:-       Sh.Ravinder Pal Singh, Advocate for the complainant.

                        Sh.Sukaam Gupta, Advocate for the opposite parties.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

 

                This complaint has been filed by the complainant, alleging that the opposite parties, in the year 2011, launched a project, under the name and style “Chinar City”, Kishanpura, Zirakpur, District Mohali, Punjab, which was  widely advertised. The complainant and his wife, attracted by salient features advertised and promises made by the opposite parties regarding the said project, purchased one flat @ Rs.45,00,000/-, for their daughter. Towards price of the unit, payments were to made on different dates, detail of which is given in para no.2 of the complaint. By 23.02.2012, the complainant had deposited an amount of Rs.12,51,111/- with the opposite parties vide receipts Annexure C-1 colly.

                It was stated that that brother and sister of the complainant, in their joint names, had also booked one residential unit, in the project, in question. Against that unit, they had deposited an amount of Rs.3,60,000/-. On request made by them, the said amount was also transferred in the account maintained by the opposite parties, to purchase flat by the complainant. The project launched was not approved. Facing with the above situation, the complainant made request to the opposite parties to refund amount paid by him. At that time, a proposal was given by the opposite parties that let the complainant purchase 3 BHK flat in their other project named as ‘Chinar Homes’, situated in Kishanpura, Peermuchalla, Zirakpur, for an amount of Rs.65 lacs. It was told to the complainant that flats are under construction and possession will be delivered in the end of year 2014. Under pressure, the complainant exercise the option to purchase an alternative flat and further deposited an amount of Rs.40,000/- with the opposite parties on 02.05.2013. For the total amount paid, a consolidated receipt Annexure C-3 was issued on 02.05.2013.

                In December 2013, construction of Towers in the project ‘Chinar Homes’ was also stopped. Request to refund amount deposited, was again raised by the complainant, however, it was not accepted by the opposite parties. Rather, it was told to the complainant that another project named as ‘Chinar Business Centre’ situated in above said village, has been launched and in lieu of amount paid by him, he may purchase a shop in the said project. The complainant opted to purchase a shop for his son, so that he is able to start a small business therein, to earn his livelihood, by way of self-employment. Price of the said shop was fixed at Rs.31 lacs. Amount already paid i.e. Rs.16,51,111/- was  adjusted towards price of the said shop vide receipt dated 11.04.2014. It is case of the complainant that till the time of filing this complaint, Buyer’s Agreement was not offered for signing and further construction of the shop in the said project has also not been started. To say so, photographs of the site, clicked on 02.03.2016 have been placed on record as Annexure C-6. It was stated that the complainant also came to know that the opposite parties had raised loan of Rs.32 crores from the Bank,  and the entire project i.e. the land and the construction raised thereupon stood mortgaged. Above fact was not disclosed to the complainant, when unit was sold to him. The said Bank had initiated proceedings before the Debt Recovery Tribunal at Chandigarh, wherein it is pressing for recovery of loan amount paid. Requests made by the complainant, to refund the entire amount deposited by him yielded no result, which compelled him to file this consumer complaint.

2.         Upon notice, reply was filed by the opposite parties. It was stated that the complainant is not a consumer. He is a property dealer and has purchased the said unit to get benefit in future. Purchase of shop would fall within the definition of purchasing a commercial property, as such, consumer complaint is not maintainable. Payment of amount by the complainant and shifting of the units, is admitted. However, it is stated that the same was done on request, made by the complainant. It is averred that all the transactions took place at Zirakpur, as such, this Commission has got no territorial Jurisdiction to entertain and decide the complaint. It is stated that dispute between the parties being of civil nature, could only be adjudicated upon by a Competent Civil Court. It is pleaded that the present complaint is barred by limitation. The complaint is bad for non-joinder and misjoinder of parties.
3.         Qua non starting of construction work, at the project site, it is only stated that the plea taken by the complainant is false. Raising of loan by the opposite parties, from the Bank and mortgage of the project land and construction to be raised thereupon, was admitted. The remaining averments were denied, being wrong.  
4.         In the rejoinder filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the opposite parties.
5.         The parties led evidence, in support of their case.
6.         At the time of arguments, Counsel for the parties, raised objections in terms of pleas taken by them, in the complaint and written statement, respectively.
7.         Before deciding the issue on merits, we will like to deal with the objection raised by the opposite parties stating that as all the documents i.e. receipts etc. were issued from Zirakpur, Punjab, this Commission has no territorial jurisdiction to entertain and decide this complaint. Exactly a similar objection was raised by the opposite parties qua a project, situated in Zirakpur i.e. ‘Chinar Homes’, in a complaint filed by a similar located allottee, titled as Kiranjeet Sandhu Vs. BCL Homes and another, consumer complaint no.91 of 2016 decided on 23.06.2016. The said objection was rejected by this Commission, by observing as under:-

“According to Section 17 (2) (b) of the Act, a complaint can be filed in the State Commission, within the limits of whose jurisdiction, any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution. It is significant to mention here that the complainant has placed on record, a document Annexure C-8, downloaded from the official website of the Ministry of Corporate Affairs,  wherein, the address of Registered Office of the opposite parties, have been mentioned as “Shop no.140, Village Dariya, Chandigarh” and its status has been shown as “Active”. On the other hand, it has not been denied by the opposite parties, that they have no Registered Office at Chandigarh. This fact is further evident from one of the similar consumer case, filed by one of the allottee, against the same builder (opposite parties), titled as Chand Berry and another Vs. BCL Homes Ltd. and others, CC No.292 of 2015 decided on 19.02.2016, by this Commission, that  the Registered Office having the same address, as mentioned above, was also made as opposite party no.1, in that complaint, through its Authorized Signatory.  Notice in that case was accepted by Registered Office of the opposite party. In these circumstances, it could easily be said that the opposite parties, are having their registered office at Chandigarh, from where, they are carrying on business and personally works for gain. Therefore, in our considered view, the complaint can be entertained and adjudicated upon by this Commission, at Chandigarh, in view of the provisions of Section 17(2)(b) of the Act. The objection taken by  the opposite parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. ”

Not only as above, on the receipts Annexure C-1 colly. (available at pages 21 and 22 of the file), it is clearly mentioned that Registered Office of the opposite parties is situated at Village Dariya, U.T., Chandigarh. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, stands rejected.

8.         Another objection was raised by the opposite parties, to the effect that the complainant is an investor i.e. he had purchased the unit, in question, for earning profits, as and when there is escalation in the prices of real estate, as such, he would not fall within the definition of a consumer, as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 (in short the Act). It may be stated here that there is nothing on the record to show that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. On the other hand, it has been clearly averred by the complainant, in his complaint that, in the first instance residential unit was purchased by him, for residential purpose of his daughter, however, when the opposite  parties failed to deliver possession thereof, while relocating him twice, he made request for refund of the amount deposited but the same was not accepted by the opposite parties. On the other hand, he accepted an offer made by the opposite parties, to purchase the said shop, so that atleast, his son who was unemployed, could start a small business therein, for earning his livelihood, by way of self-employment. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the  residential unit(s) (in the present case, initially residential unit was purchased by the complainant), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs  Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, in their written reply, therefore, being devoid of merit, is rejected.  
9.         Another objection was taken by the opposite parties to the effect that since the dispute is with regard to purchase of a shop, as such, it being a commercial transaction, consumer complaint was not maintainable. It may be stated here that, in the circumstances, referred to above, the complainant had accepted the offer to purchase the said shop, for his son, so that he is able to start some business, to earn his livelihood, by way of self-employment. Otherwise also, it is a small shop measuring 12 x 20 square feet, and that too, on 1^st floor, as such, by no stretch of imagination it can be said that the same can be used for starting a very big business, by deploying large number of employees, in order to earn huge profits. Before leveling such an objection, the opposite parties were required to produce on record, some cogent evidence to convince this Commission, in that regard but they miserably failed to do so. In Laxmi Engineering Works Vs. P.S.G. Industrial Institute,  1995 AIR 1428, 1995 SCC (3) 583, the Hon’ble Supreme Court of India has specifically stated that if the commercial use is by the purchaser himself/herself, for the purpose of earning livelihood, by means of self-employment, such a purchaser of goods is yet a consumer. It was further said that to know that whether the goods have been purchased for commercial purpose, it is to be decided in the facts of each case. It is not value of the goods that matters, but the purpose, to which the goods bought are put to. Not only as above, it was further said that if in the process of earning livelihood, a person takes the assistance of one or two persons, to assist or help him in operating the machinery, he does not cease to be a consumer. The principle of law laid down in Laxmi Engineering Works' case (supra)  is fully applicable to the facts of the present case. Such an objection taken by the opposite parties, being devoid of merit, is also rejected.
10.         Another objection was also taken by the opposite parties, in their written version, that since the present dispute is of civil nature, as such, only a suit in the Civil Court was maintainable.

                It may be stated here that the complainant hired the services of the opposite parties, for purchasing the unit, in question, and he was ultimately allotted the same for consideration, in the manner explained above. It was not that the complainant purchased the unit, in an open auction, on “as is where is basis”.  In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2 (1) (o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C.1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant had a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, could be availed of by him, as he falls within the definition of a consumer. In this view of the matter, the objection  taken by  the opposite parties, in their written version, being devoid of merit, must fail, and the same stands rejected.

11.         Further objection was taken by the opposite parties, in their written version, that the complaint filed by the complainant, was barred by time.

                It is a specific stand of the complainant, taken in para no.6 of the complaint, that till date despite receiving substantial amount aforesaid, the opposite parties have neither started construction in the new project i.e. ‘Chinar Business Centre’, nor any allotment letter/Agreement has been got executed by them, in respect of the unit, in question. In written reply, the opposite parties have kept mum, as far as the averment of the complainant regarding non-start of construction work and execution of Allotment letter/Agreement is concerned. Not even a single whisper has been made by the opposite parties, in their written version, regarding the status of construction work and delivery of possession of the unit. At the same time, perusal of photographs placed on record Annexure C-6, clicked by the complainant on 02.03.2016, (evident from the newspaper namely “The Tribune” of the said date, shown as evidence of the said date) that there is nothing sort of construction work at the spot, except long bushes and shrubs. Allotment letter/Agreement has not been got executed by the opposite parties,  wherefrom the exact date to  deliver possession of the unit, can be ascertained by this Commission, despite the fact that huge amount of Rs.16,51,111/- has been received by the opposite parties, as far as back in 2013. At the same time, even today i.e. after about more than five years of allotment, construction of the unit is not started at the site. Since till date, neither possession of the unit, in question, was offered to the complainant for want of construction at the site, nor amount deposited was refunded to him, as such, there is a a continuing cause of action, in favour of the complainant, to file the complaint. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement made in the advertisements of the petitioner, knowing fully well that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon'ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The objection taken by  the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.  

12.         Admittedly, the complainant had paid substantial amount of Rs.16,51,111/- towards price of the unit. Start of construction and completion of project is not in sight, even today, as no tangible evidence, in that regard, has been placed on record, by the opposite parties. It is also not in dispute that the entire land falling underneath the project and the construction raised thereon, including the unit, in question, was mortgaged by the opposite parties, with the Bank.

                It is a case of failed promise and virtually deceit has been committed by  the opposite parties, with the complainant. It was never disclosed to the complainant, by  the opposite parties,  that the entire project land and construction to be raised thereon, stood mortgaged with the Bank. After making payment of Rs.16,51,111/- , delivery of possession thereof is not expected even in near future. It is well settled law that that when the promoter/builder violates material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. In the instant case also, as stated above, possession of the unit has not been offered till date for want of construction. The opposite parties, therefore, had no right to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is, thus, entitled to get refund of amount deposited by him.

                In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.

13.         Whether the complainant is entitled to interest on the amount deposited alongwith interest, if so, at what rate? The amount of Rs.16,51,111/- has been used by the opposite parties, for their own benefit. It has also been proved on record that the opposite parties are not in a position to deliver possession of the unit, for want of construction and it is also not feasible in the near future, as no stand in that regard has been taken by them, in their written version. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335).  If interest @12% p.a., on an amount of Rs.16,51,111/- from the respective dates of deposits, till realization, is granted, that will meet the ends of justice.
14.         As far as the objection taken by the opposite parties, to the effect that the complaint is bad for non-joinder and misjoinder of party(s), is concerned, it may be stated here that the opposite parties failed to clarify, as to which party(s) was/were required to be added or deleted, in the head-note of the instant complaint. Such an objection taken by the opposite parties, in this regard, therefore, being without any justification, is rejected.
15.         No other point, was urged, by Counsel for the parties.   
16.         For the reasons recorded above, this complaint is partly accepted, with costs.  The opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of   Rs.16,51,111/-, to  the complainant,  alongwith simple interest @12% per annum, from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.30,000/-, to the complainant.
4.  The awarded amounts, mentioned in clauses (i) to (iii) above, shall be paid by  the opposite parties, to the complainant,  within a period of 2 months, from the date of receipt of a certified copy of this order, failing which, the amount mentioned in clause (i) shall carry penal interest @15% per annum instead of 12% per annum, from the respective dates of deposits till realization and the amounts mentioned in clauses (ii) and (iii) shall carry interest @15% per annum, from the date of filing of this complaint, till realization.

17.         However, it is made clear that, in case, the complainant has availed loan facility from any financial institution(s), it shall have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).
18.         Certified Copies of this order be sent to the parties, free of charge.
19.         The files be consigned to Record Room, after completion.

Pronounced.

19.07.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 [DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

 MEMBER

 

 

Rg.