Chandigarh

StateCommission

CC/185/2014

Puneet Shukla - Complainant(s)

Versus

Emaar MGF land Pvt.Limited - Opp.Party(s)

Subhash Chander Sharma & Rakesh Bajaj

11 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	185 of 2014
Date of Institution	:	17.12.2014
Date of Decision	:	11/03/2015

 

Puneet Shukla son of Sh. B.M. Shukla, resident of House No.2114, Sector 21-C, Chandigarh.

……Complainant

V e r s u s

1. Emaar MGF Land Pvt. Limited, S.C.O.120-122, Sector 17-C, Chandigarh, through its DGM.
2. Emaar MGF Land Pvt. Limited, ECE House, #28 Kasturba Gandhi Marg, New Delhi-110001, through its Director.

              ....  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.Subhash Chander, Advocate for the complainant.

                   Sh.Ashim Aggarwal, Advocate for the Opposite Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that the complainant applied to the Opposite Parties, vide application No.1051, for the allotment of a residential plot measuring 300 square yards, in their Project, namely Pinewood Park, Mohali Hills, Sector 108, Mohali, Punjab. The complainant was allotted plot no.326,  approximately measuring 300 square yards, in Pinewood Park, Sector 108, Mohali Hills, Mohali, @Rs.11,500/-  per square yard, vide allotment letter dated 05.05.2007 Annexure C-1. The basic sale price of the said plot was to the tune of Rs.34,50,000/-. Apart from this amount, the complainant was also required to pay a sum of Rs.3,45,000/-, towards Preferential Location Charges (PLC) and Rs.1,47,249/-towards External Development Charges. In this manner, the total sale consideration of Rs.39,42,249/-was required to be paid by the complainant, in respect of the said plot. Plot Buyer's Agreement dated 30.06.2007, Annexure C-2, in respect of the said plot, was executed between the parties. It was stated that, thereafter, as per the installment payment plan, the complainant, made the entire payment, in respect of the plot, in question.

2.       It was further stated that according to Clause 8 of the Plot Buyer's Agreement dated 30.06.2007, Annexure C-2, the Opposite Parties were to hand over physical possession of the residential plot, in favour of the complainant, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer's Agreement). It was further stated that it was also mentioned in Clause 8 of the said Agreement, that, in case, the Opposite Parties, failed to deliver possession of the plot, in question, within the stipulated period, they would be liable to pay penalty/compensation, to the complainant, @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay. Thus, the Opposite Parties were to deliver possession of the residential plot, to the complainant, latest by 29.06.2010. The possession was not offered to the complainant by 29.06.2010.
3.       It was further stated that the complainant wrote a number of letters, to the Opposite Parties, to apprise him, with regard to the delivery of possession of the plot, in question, in his favour, but to no avail.
4.       It was further stated that, during various visits, it was found that there was no development at the site, what to speak of delivery of possession of the plot, in question, to the complainant. 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, not only this, from the information obtained by the complainant, under the Right to Information Act, 2005, from the Competent Authorities, it came to his knowledge that by August 2014, the Opposite Parties had not even applied for occupation and completion certificates, in respect of the project, in question. 
5.       It was further stated that the Opposite Parties collected the huge amount, towards the price of plot, in question, by making a false promise, that physical possession thereof, shall be handed over within the maximum period of 3 years, from 30.06.2007, but they did not abide by their commitment. It was further stated that, as such, the amount deposited by the complainant, towards the sale price of the plot, in question, was utilized by the Opposite Parties, as a result whereof, he was caused huge financial loss. It was further stated that, as such, the complainant 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.
6.       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 complainant, 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.37,84,051/- alongwith interest @18% P.A., from the respective dates of deposits, till realization; compensation to the tune of Rs.12 lacs, for mental agony and physical harassment; and  cost of litigation, to the tune of Rs.50,000/-.
7.       The Opposite Parties, put in appearance on 23.01.2015, and filed their joint written version, on 03.03.2015. In the joint written version, it was pleaded by the Opposite Parties, that the complainant did not fall within the definition of a consumer, as he had booked two units, in their (Opposite Parties) projects, for the purpose of investment, with a view to sell the same, to gain huge profits, as and when there was escalation in the prices of real estate. It was stated that this fact was concealed by the complainant, from this Commission. It was further pleaded that this Commission has no territorial Jurisdiction, to entertain and decide the complaint.  It was further pleaded that the complaint was not maintainable, as an arbitration clause, existed, in the Plot Buyer's Agreement dated 30.06.2007, Annexure C-2,  and, in case of any dispute, the matter was to be referred to the Arbitration. The factum, with regard to the allotment of plot no.326,  approximately measuring 300 square yards, in Pinewood Park, Sector 108, Mohali Hills, Mohali, @Rs.11,500/-  per square yard, the total sale consideration whereof was Rs.39,42,249/-, in favour of the complainant, and deposit of the amount of Rs.37,84,051/-, towards the part price thereof, by him was admitted. It was also admitted that, as per Clause 8 of the Plot Buyer's Agreement dated 30.06.2007, Annexure C-2, the Opposite Parties were liable to hand over physical possession of the residential plot, in favour of the complainant, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer's Agreement), failing which, they were liable to pay penalty/compensation, to him (complainant), @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay. It was also admitted that possession of the unit, in question, could not be delivered, to the complainant, by the stipulated period, as mentioned in the Plot Buyer's Agreement dated 30.06.2007, Annexure C-2, i.e. by 29.06.2010. 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 complainant, vide letter dated 31.12.2014, upon completion of the amenities,  as per Clause 23 of the Plot Buyer's Agreement dated 30.06.2007, Annexure C-2, on payment of the amount due to be paid by him, he refused to accept the same. It was further stated that even delayed compensation/penalty, as per Clause 8 of the Plot Buyer's Agreement dated 30.06.2007, Annexure C-2, to the tune of Rs.8,11,726/-,  had already been credited to the account of the complainant, maintained by the Opposite Parties, for the period of delay. 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 the plot. It was further stated that the amount demanded by the Opposite Parties, from the complainant, vide letter dated 31.12.2014, was legally due against him. It was further stated that since the possession had already been offered to the complainant, the amenities were complete, at the site  in terms of the Agreement, penalty as per Clause 8 of the Plot Buyer's Agreement dated 30.06.2007, Annexure C-2, for the period of delay, had also been credited to his account, maintained by the Opposite Parties, and, in case, he (complainant) still wanted refund, the same would amount to surrender of the unit, and attract forfeiture charges, as per Clauses 2(f) of the same (Plot Buyer's 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.
8.       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.
9.       The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.
10.       The Opposite Parties, in support of their case, submitted the affidavit of Sachin Kapoor, their Senior Manager (Legal),  and Authorized Representative,  by way of evidence, alongwith which, a number of documents were attached.
11.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 
12.       The core question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer 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, 17[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.”

13.       Admittedly, the complainant was allotted  plot no.326,  approximately measuring 300 square yards, in Pinewood Park, Sector 108, Mohali Hills, Mohali, @Rs.11,500/-  per square yard, vide allotment letter dated 05.05.2007 Annexure C-1, by the Opposite Parties. It is evident from Annexure OP/2, copy of the  Plot Buyer's Agreement dated 04.07.2007, at page 61 of the file, that the complainant was also allotted plot no.508, approximately measuring 300 square yards, in Augusta Park, by the Opposite Parties, in their other project, at Mohali Hills, Sector 109, S.A.S. Nagar, District Mohali, Punjab, at the sale price of Rs.36,19,104/-. For the first time, the complainant made a mention, in the rejoinder, that two properties were purchased by him, in the project of the Opposite Parties. Not even a fleeting reference, has been made by the complainant, in the instant complaint, that the plot, in question, was purchased by him, for his residential purpose. Nothing has been made clear, by the complainant, as to for what purpose, he has purchased two plots, in the projects of the Opposite Parties. Thus, the plea taken up by the Counsel for the complainant, during the course of arguments, did not establish that the two units purchased by the complainant, were for the purpose of his residence and the residence of his family members. Thus, it is established that the complainant purchased the aforesaid two units, in different projects of the Opposite Party, at Mohali, 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 complainant, 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 complainant does not fall within the definition of a consumer, and, as such, the consumer complaint is not maintainable.
14.       For the reasons recorded above, the complaint is dismissed, being not maintainable, as the complainant is not held to be a consumer,  under the Act, with no order as to costs.
15.       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.
16.       Certified Copies of this order be sent to the parties, free of charge.
17.       The file be consigned to Record Room, after completion.

Pronounced.

11/03/2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 

 (PADMA PANDEY)

      MEMBER

 

Rg.