Chandigarh

StateCommission

CC/100/2015

Col. Kuldip Singh - Complainant(s)

Versus

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

Capt. Arun Sharma & Ranbir Singh, Adv.

19 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                UNION TERRITORY, CHANDIGARH

 

 

Consumer Complaint No.	100 of 2015
Date of Institution	21.05.2015
Date of Decision	19.08.2015

 

Col.Kuldip Singh aged 76 years, s/o Col.Gursaran Singh, House No.147, Sector 35-A, Chandigarh.

 

                                ….…Complainant

 

V E R S U S

 

1. Emaar MGF Land Ltd., SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh, through its Branch Manager.

 

2. Emaar MGF Land Ltd. Regd. Office ECE House, 28, Kasturba Gandhi Marg, New Delhi, through its Managing Director.  

                                .….. Opposite Parties

 

 

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

                                                                       

Argued by:   

 

Capt.Arun Sharma, Advocate for the complainant.

Sh.Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

                In brief, the facts of the case are that the complainant applied for allotment of plot in the project of the Opposite Parties and, a Plot Buyer’s Agreement was executed between the parties, at Chandigarh, on 04.07.2007 (Annexure P-1). It was stated that the complainant paid the amount, as per schedule (Annexure P-2). It was further stated that possession of the Plot No.163, Augustra Park (In fact Augusta Park), Sector 109, Mohali was to be handed over by the Opposite Parties, within a period of two years but not later than three years, as per Clause 8 of the Agreement. It was further stated that the Opposite Parties vide their letter dated 18.04.2015 (Annexure P-3) relocated the plot, in question, to 109-AG-385-300 in Mohali Hills, to the complainant, and the said offer was refused by him vide letter dated 11.05.2015 (In fact 12.05.2015) (Annexure C-4). It was further stated that the action of the Opposite Parties being contrary to the Agreement, was illegal and arbitrary.  It was further stated that the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

2.             In their written statement, the Opposite Parties stated that the complainant did not fall within the definition of “Consumer” as envisaged in the Consumer Protection Act, 1986, because he is already in possession of House No.147, Sector 35-A, Chandigarh, and purchase of plot, in question, was for speculation purposes. It was further stated that the family of the complainant had purchased 3 separate properties from the Opposite Parties alone, in addition to the house, in which , they reside at Chandigarh, so, it could be inferred that purchase was for speculation and commercial purposes and not for the necessity of residing in the said plot. It was further stated that the complaint was time barred and ought to be dismissed in terms of Section 24-A of the Consumer Protection Act, 1986, as possession of the plot was proposed to be delivered to the complainant by 03.07.2010 and the present complaint was filed in the year 2015 i.e. beyond two years from the date of accrual of cause of action. It was further stated that the complainant never asked for handing over of possession of plot No.163, Mohali allotted to him in Augusta Park, Sector 109, Mohali (109-AP-163-300), despite the expiry of the “proposed” time period for handing over of possession. It was further stated that the complainant was relocated plot vide letter dated 18.04.2015 (Annexure P-3) in the same Sector 109, Mohali of the same area as was of the originally allotted plot to him and as per the terms and conditions of the provisional allotment letter as well as Buyer’s Agreement, the allotment of plot made to him was tentative, provisional and subject to change before final layout and demarcation of plots completed in the project area. It was further stated that the complainant himself by signing the same, agreed to the terms and conditions of the Agreement, which provided that in case of delay in handing over possession of plot, the Opposite Parties would be liable to pay to the complainant a penalty of Rs.50/- per sq. yds., per month for such delay. It was further stated that the complainant cannot go beyond the agreed terms and conditions of the Agreement and both the parties were bound by the same. It was further stated that there was no definite Agreement that possession would definitely be delivered within a period of 3 yerars. It was further stated that the Opposite Parties relocated the plot to the complainant, which is immediately possessionable, the claim of the complainant for refund of the money alongwith interest is not maintainable and the present complaint was liable to be dismissed. It was further stated that, the Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.

3.             The Parties led evidence, in support of their case.

4.             We have heard the Counsel for parties, and have gone through the evidence and record of the case, carefully. 

5.             The Counsel for the complainant, submitted that the complainant applied for the allotment of a plot in the project of the Opposite Parties and Plot Buyer’s Agreement was executed between the parties, at Chandigarh, on 04.07.2007 (Annexure P-1). He further submitted that total price of the plot was Rs.36,19,104/-, out of which, the complainant paid an amount of Rs.34,46,604/-. He further submitted that as per Clause 8 of the Plot Buyer’s Agreement, possession of the plot, in question, was to be delivered within a period of three years from the date of execution thereof, i.e., by 03.07.2010. He further submitted that possession of the plot was never offered by the Opposite Parties. He further submitted that the Opposite Parties, vide their letter dated 18.04.2015 (Annexure P-3)  relocated the plot No.109-AP-385-300 but the complainant refused to accept the same and demanded refund of the amount vide letter dated 12.05.2015, but to no avail.

6.             The Counsel for the Opposite Parties, submitted that the complainant did not fall within the definition of  “Consumer” as per Section 2(d) of the Consumer Protection Act, 1986, as he exclusively owns house measuring 631.37 Sq. Yards in Sector 35-A, Chandigarh since 1968, as per record of the official website of Chandigarh Administration (at page No.54 of the file). He further submitted that the complainant purchased this property for speculation purposes and, as such, the complaint is liable to be dismissed on this ground alone. He further submitted that the complainant himself never asked for handing over of possession of Plot No.163, Sector 109, Mohali, despite the expiry of the “proposed” time period, for handing over of possession. He further submitted that the Opposite Parties relocated the Plot No.385 in Sector 109, Mohali having the same area and same basic rate, as per the terms and conditions of the Agreement and informed him that the said plot was ready for possession. He prayed for dismissal of the complaint.

7.             The principal question, that falls for consideration, is, as to whether, the complainant falls within the definition of consumer, as defined under Section 2(1)(d) (i) of the Act, or not. Admittedly, the plot bearing No.163, admeasuring 300 sq. yds. in Augusta Park, Sector 109, Mohali (109-AP-163-300), was purchased by the complainant, in the project of the Opposite Parties. The total price of consideration vide Plot Buyer’s Agreement, which was executed between the parties, at Chandigarh, on 04.07.2007 (Annexure P-1), was Rs.36,19,104/-. The Opposite Parties have placed on record (Annexure R-1 Colly.) alongwith their written statement, to contend that the complainant is not a consumer. A bare perusal of the details regarding property No.147, Sector 35-A prepared by Chandigarh Administration (at page No.54 of the file) clearly shows that the complainant i.e. Sh.Kuldeep Singh s/o Sh.Gursaran Singh is the owner of House No.147, Sector 35-A, Chandigarh, measuring 631.37 Sq. Yards and the allotment date is clearly mentioned as 15.05.1968. It cannot be envisaged by farthest stretch of imagination that at this junction of his life, he had bought this property for use other than investment for resale purpose. Even the complainant has failed to file any replication/rejoinder to rebut the written statement of the Opposite Parties.  It is, thus, clearly established that the complainant is the owner of residential unit/house bearing No.147, Sector 35-A, Chandigarh. The complainant, thus, purchased the plot, in question, bearing No.163 in Augusta Park, Sector 109, Mohali (109-AP-163-300) in the project of the Opposite Parties, just by way of investment, with a view to resell the same, as and when, there was escalation in the prices of real estate 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 was 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 complainant does not fall within the definition of consumer, and, as such, the Consumer Complaint is not maintainable. In the present case, the complainant has not produced any documentary evidence to show that the said House No.147, Sector 35-A, Chandigarh, is not in his name. It is pertinent to note that Mrs.Pritpal Kaur and Mr.Amandeep Singh Chahal, wife and son of the complainant also purchased two units, in the project of the Opposite Parties, as is evident from Plot Buyer’s Agreement (Annexure R-2 and R-3). It is not out of place to mention that the complainant, aged 76 years, a senior citizen, is residing in his own house in Chandigarh since 1968. It is commonly understood even by layman that the complainant applied for  a plot in the project of the Opposite Parties, for investment purposes, for earning huge profits due to escalation in the price of the plot. So, it is clearly proved that the complainant is not a consumer and the complaint is liable to be dismissed.

8.             For the reasons recorded above, the complaint is dismissed, being not maintainable, as the complainant is not held to be consumer, with no order as to costs.

9.             The complainant shall, however, be at liberty to resort to any other legal remedy, which may be available to him, for redressal of his grievance.

10.           Certified Copies of this order be sent to the parties, free of charge.

11.           The file be consigned to Record Room, after completion.

Pronounced.                                                                                              

19.08.2015                                                                       Sd/-

                                    [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER