Chandigarh

StateCommission

CC/57/2015

Amitpal Chahal & anr. - Complainant(s)

Versus

Emaar MGF land Ltd. - Opp.Party(s)

Vishal Bali

11 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	57 of 2015
Date of Institution	:	26.03.2015
Date of Decision	:	11.06.2015

 

1. Mr. Amitpal Chahal son of Sh. Harpreet Singh Chahal
2. Mrs. Riputapan Chahal wife of Sh. Amitpal Chahal.

Communication Address:- House No.61, Sector 6, Panchkula, Haryana

……Complainants

V e r s u s

1. M/s Emaar MGF Land Ltd., having its Registered Office at ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director/Director/Principal Officer/Officer-in-Charge.
2. M/s Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh, 160017 through its Managing Director/Director/ Principal Officer/Officer-in-Charge.

              ....  Opposite Parties

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

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

               

Argued by: Sh.Vishal Bali, Advocate for the complainants.

                   Sh.Sanjeev Sharma, Advocate for the Opposite Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that the complainants applied to the Opposite Parties, vide application No.TTM/240 dated 21.07.2008, for the allotment of a residential apartment, in their project, namely “The Terraces”, Mohali Hills, Sector 108, Mohali, Punjab, on payment of booking amount, to the tune of Rs.3 lacs. The complainants were allotted unit No.483/GF, measuring 1502 square feet, in “The Terraces”, Mohali Hills, Sector 108, S.A.S. Nagar, Mohali, Punjab, vide Provisional Allotment Letter dated 13.04.2009 Annexure C-2. The total sale consideration of the said unit was to the tune of Rs.47,89,631/-, which included Rs.46,00,000/-  as basic price plus (+) Rs.1,69,631/- as External Development Charges (EDC) plus (+) Rs.20,000/- as Interest Free Maintenance Security (IFMS).  It was stated that Independent Floor Buyer's Agreement dated 23.10.2009 Annexure C-3, in respect of unit No.483/GF was executed between the parties. It was further stated that, as per Clause 20.1 of the Independent Floor Buyer's Agreement dated 23.10.2009, Annexure C-3, possession of unit No.483/GF, was to be delivered within 36 months, from the date of execution of the same (Agreement), failing which, as per Clause 22.1 the Opposite Parties were liable to pay compensation @Rs.5/- (Rupees Five only) per square feet, per month, for the period of delay. The complainants opted for construction linked Payment Plan Annexure C-4 which was also attached with the Agreement.

2.       It was further stated that, thus, the Opposite Parties were to deliver possession of the residential apartment, in question, to the complainants, latest by 22.10.2012. The possession was not offered to the complainants by 22.10.2012.
3.       It was further stated that the complainants approached the Opposite Parties, through every possible means, and requested them, to apprise them, with regard to the delivery of possession of unit No.483/GF, in their favour, but except bald assurances, nothing positive came out.
4.       It was further stated that during various visits, it was found that no construction activities were being carried out, at the site, what to speak of delivery of possession of unit No.483/GF, to the complainants. It was further stated that, on the other hand, by 11.06.2014, the complainants had already paid the amount of Rs.46,01,268/-, against the total sale consideration of Rs.47,89,631/-.
5.       It was further stated that the complainants kept on approaching the opposite parties, with a request to complete the construction, and deliver possession of unit No.483/GF, but they did not bother. It was further stated that by June 2014, the Opposite Parties, kept silent regarding delivery of possession of unit No.483/GF, for want of basic amenities. It was further stated that surprisingly the Opposite Parties, vide letter dated 02.12.2014 Annexure C-10, offered possession of unit No.483/GF. It was further stated that vide letter dated 02.12.2014 Annexure C-10,  demand of Rs.13,42,455/- was also made by the Opposite Parties, under various heads. It was further stated that the said demand of Rs.13,42,455/- made by the Opposite Parties, was illegal and arbitrary. It was further stated that the Opposite Parties without taking consent of the complainants, enhanced the super area of unit No.483/GF from 1502 square feet, to 1670.87 square feet, as a result whereof, the total sale consideration of unit No.483/GF, was also arbitrarily enhanced to Rs.52,12,767.43Ps., from Rs.47,89,631/-. It was further stated that even the club membership charges to the tune of Rs.1,12,360/-, were charged, from the complainants, whereas, the same were optional. It was further stated that even the delayed payment charges were wrongly demanded by the Opposite Parties. It was further stated that, on the other hand, the Opposite Parties denied the discount, and the payment of delayed compensation/penalty, as assured by them.
6.       It was further stated that, however, on receipt of letter dated 02.12.2014 Annexure C-10, when the complainants visited the site to take over possession of unit No.483/GF, they found that still the construction was incomplete. It was further stated that the said fact was brought to the notice of the Opposite Parties, vide emails dated 14.12.2015 Annexure C-15, 26.12.2014 Annexure C-16,  and 07.01.2015 Annexure C-17. It was further stated that the Opposite Parties, vide their email dated 16.02.2015, Annexure C-18, intimated the complainants, that the development work at the terraces site, wherein unit No.483/GF was allotted to them, was progressing well. It was further stated that, thus, paper possession in respect of unit No.483/GF, was offered by the Opposite Parties, to the complainants, vide letter dated 02.12.2014 Annexure C-10.
7.       It was further stated that even necessary approvals/permissions were not obtained by the Opposite Parties, in respect of the project, in question. It was further stated that thereafter, the complainants sent various letters/emails to the Opposite Parties, to complete the construction and deliver possession of unit No.483/GF, but to no avail.   
8.       It was further stated that left with no other alternative, the complainants vide email dated 09.03.2015 Annexure C-22 sought refund of the amount deposited by them, but the Opposite Parties failed to do so.
9.       It was further stated that the Opposite Parties collected the huge amount, towards unit No.483/GF, in question, by making a false promise, that physical possession thereof, shall be handed over within the maximum period of 36 months, from 23.10.2009, but they did not abide by their commitment. It was further stated that, as such, the amount deposited by the complainants, towards the part price of unit No.483/GF, was utilized by the Opposite Parties, as a result whereof, they were caused huge financial loss. It was further stated that, as such, the complainants underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission, on the part of the Opposite Parties.
10.       It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, 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, directing the Opposite Parties, to refund the amount of Rs.46,01,268/- alongwith interest @18% P.A., from the respective dates of deposits, till realization; pay compensation to the tune of Rs.5 lacs, for financial loss, deficiency in rendering service, unfair trade practice, mental agony and physical harassment; and  cost of litigation, to the tune of Rs.50,000/-.
11.       The Opposite Parties were served, and put in appearance, on 29.04.2015. They filed their written version, on 01.06.2015. In their written version, the Opposite Parties, pleaded that since the complainants are the owners of the house, address whereof had been mentioned, in the head note of the consumer complaint,  and also they had informed them (Opposite Parties), vide letter dated 05.05.2009 Annexure R-2, that they had purchased a unit, in some other housing group, meaning thereby that they had purchased two units, and, as such, they did not fall within the definition of  consumers, as defined under Section 2 (1) (d) of the Act, as they had purchased unit No.483/GF, with an intention to earn profits, after selling the same, as and when there was escalation in the prices of real estate. It was stated that this fact was concealed by the complainants, from this Commission, as nothing was mentioned in the complaint regarding the same. It was further pleaded that this Commission has got no territorial and pecuniary Jurisdiction, to entertain and decide the complaint. It was further pleaded that the complaint was barred by limitation. It was further pleaded that the complaint was not maintainable, as an arbitration clause, existed, in the Independent Floor Buyer's Agreement dated 23.10.2009, Annexure C-3 and, in case of any dispute, the matter was to be referred to the Arbitration. It was further pleaded that time was never made the essence of contract. It was further stated that since the complainants sought the enforcement of Independent Floor Buyer's Agreement dated 23.10.2009, Annexure C-3, in respect of the immovable property, only a suit for specific performance was maintainable. It was further stated that the complaint was bad for non-joinder of HDFC Limited, as a necessary party, from which, the complainants had obtained loan, for payment of installments of unit No.483/GF. The factum, with regard to the allotment of unit No.483/GF, measuring 1502 square feet, in “The Terraces”, Mohali Hills, Sector 108, S.A.S. Nagar, Mohali, Punjab, in favour of the complainants, vide Provisional Allotment Letter dated 13.04.2009 Annexure C-2, the total sale consideration whereof was to the tune of Rs.47,89,631/- which included Rs.46,00,000/-  as basic price plus (+) Rs.1,69,631/- as External Development Charges (EDC) plus (+) Rs.20,000/- as Interest Free Maintenance Security (IFMS), was admitted. It was also admitted that, as per Clause 20.1 of the Independent Floor Buyer's Agreement dated 23.10.2009, Annexure C-3, possession of unit No.483/GF, was to be delivered within 36 months, from the date of execution of the same (Agreement), failing which, as per Clause 22.1 the Opposite Parties were liable to pay compensation @Rs.5/- (Rupees Five only) per square feet, per month, for the period of delay. The amount paid by the complainants towards part price of the unit, in question, as mentioned in the complaint was not disputed. It was also admitted that possession of unit No.483/GF, could not be delivered, to the complainants, by the stipulated period, as mentioned in the Independent Floor Buyer's Agreement dated 23.10.2009 Annexure C-3  i.e. by 22.10.2012. It was further stated that, no doubt, there was some delay, in the delivery of possession of the unit, in question, yet, when the same was offered to the complainants, vide letter dated 02.12.2014 Annexure C-10, upon completion of the amenities, on payment of the amount due to be paid by them, they refused to accept the same, whereas, on the other hand, they were seeking refund of the amount deposited by them. It was further stated that even occupation certificate in respect of unit No.483/GF, was issued by the Greater Mohali Area Development Authority, vide letter dated 11.03.2014 Annexure R-3, upon completion of all the basic amenities and construction work. It was further stated that all the necessary approvals/sanctions, in respect of the said project, had been obtained by the Opposite Parties, from the Competent Authorities. It was further stated that the Opposite Parties were exempted from the provisions of the Punjab Apartment and Property Regulation Act, 1995,  and, as such, completion certificate was not required to be obtained, at the time of delivery of possession of unit No.483/GF. It was further stated that the amount demanded by the Opposite Parties, from the complainants, vide letter dated 02.12.2014 Annexure C-10, was legally due against them. It was further stated that  since  the club membership charges were optional, the complainants were at liberty not to opt for the same, on submission of indemnity bond. It was further stated that since the complainants were defaulters, in making payment of installments, in respect of unit No.483/GF,  as such, they were not entitled to any compensation/penalty, for the period of delay.  It was further stated that since the possession had already been offered to the complainants, the amenities were complete, at the site in terms of the Agreement, and, in case, they (complainants) still wanted refund, the same would amount to surrender of the unit, and attract forfeiture charges, as per Clauses 3 of the same (Agreement). It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
12.       In the rejoinder, filed by the complainants, they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
13.       The complainants, in support of their case, submitted their joint affidavits, by way of evidence, alongwith which, a number of documents were attached.
14.       The Opposite Parties, in support of their case, submitted the affidavit of Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached.
15.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 
16.       The core question, that falls for consideration, is, as to whether, the complainants fall within the definition of consumers or not? For proper decision of this question, the provisions of Section 2(1)(d) and 2(I)(o), defining the ‘consumer’ and ‘service’  respectively are extracted as under:-

“(d) "Consumer" means any person who, -

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other then the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]; Added by Act 62 of 2002 w.e.f. 15.03.2003.

[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood, by means of self-employment;]

Section 2(1)(o) defines service as under:-

(o) "service" means service of any description which is made available to potential 16[users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

17.       Admittedly, the complainants were allotted  unit No.483/GF, measuring 1502 square feet, in “The Terraces”, Mohali Hills, Sector 108, S.A.S. Nagar, Mohali, Punjab, vide Provisional Allotment Letter dated 13.04.2009 Annexure C-2, by the Opposite Parties. It is also not disputed that the complainants have already paid the amount of Rs.46,01,268/-, against the total sale consideration of Rs.47,89,631/-However, it is evident, from the letter dated 05.05.2009 Annexure R-2, that the complainants, had themselves informed the Opposite Parties, that they had purchased a unit, in some other housing group/scheme. Whereas, on the other hand, not even a fleeting reference, was made by the complainants, in the consumer complaint, that they had purchased another unit, in some other housing group. For the first time, the complainants made a mention, in the rejoinder, that no such unit was ever purchased by them, in any other housing group/scheme. It was not made clear, by the complainants, as to for what purpose, they purchased two units, first in the project of the Opposite Parties and another in some other housing group/scheme, as is evident from letter dated 05.05.2009 Annexure R-2. No doubt, at the time of arguments, it was submitted by the Counsel for the complainants, that letter dated 05.05.2009 Annexure R-2, was sent by the complainants, to the Opposite Parties, just with a view to pressurize them, to carry out the development and construction work, so that possession of the unit, in question, could be delivered by them (Opposite Parties), at an early date. He further submitted that, in fact, no other unit was purchased by the complainants, in any other housing group/scheme, as mentioned in the letter dated 05.05.2009 Annexure R-2. He further submitted that, even in reply to para no.2, on merits of the written statement, in the rejoinder, the complainants, in clear-cut terms, stated that they did not purchase any other unit, in any other housing group/scheme. He further submitted that the denial of the complainants, in para No.2 of the rejoinder, to the effect that they did not purchase any other unit, in any other housing group/scheme, clearly proved that they only booked the unit, in question, in the project of the Opposite Parties, and, as such, they fell within the definition of consumers. The submission of the Counsel for the complainants, in this regard, is devoid of merit. It is not the case of the complainants that they did not write letter dated 05.05.2009 Annexure R-2, to the Opposite Parties. The signatures of the complainants on this letter are admitted. Once, the complainants in letter dated 05.05.2009 Annexure R-2, in clear-cut terms admitted that they had purchased a unit, in some other housing group/scheme also, they, at this stage, cannot wriggle out of that admission. Their denial in the rejoinder, that they did not purchase another unit, in any other housing group/scheme, is nothing but an afterthought. It is settled principle of law, that once there is documentary evidence, and oral evidence, on the same point, contrary to each other, then the former will prevail over the latter. Mere bald denial of the complainants in para No.2 of the rejoinder, that they did not purchase another unit, in any other housing group/scheme, is not sufficient to wriggle out of the admission, made by them, in the letter dated 05.05.2009 Annexure R-2,  sent by them, to the Customer Service, Emaar MGF Group Limited, Chandigarh. Thus, it is established that the complainants purchased two units, referred to above, for commercial purpose i.e. for investment, to sell the same, in the market, as and when there was escalation in prices of the real estate. The complainants, thus, availed of the services of the Opposite Parties, 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 complainants do not fall within the definition of consumers, and, as such, the consumer complaint is not maintainable.
18.       For the reasons recorded above, the complaint is dismissed, being not maintainable, as the complainants are not held to be consumers,  under the Act, with no order as to costs.
19.       The complainants shall, however, be at liberty to resort to any other legal remedy, which may be available to  them, for redressal of their grievance.
20.       Certified Copies of this order be sent to the parties, free of charge.
21.       The file be consigned to Record Room, after completion.

Pronounced.

June 11, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

 [DEV RAJ]

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

      MEMBER

 

Rg.