Chandigarh

StateCommission

CC/177/2014

Lt. Col. Karamjit Singh - Complainant(s)

Versus

M/s Emaar MGF Land Pvt. Limited - Opp.Party(s)

Pankaj Chandgothia, Adv

01 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Consumer Complaint No.	:	177 of 2014
Date of Institution	:	04.12.2014
Date of Decision	:	01.04.2015

 

 

Lt. Col. Karamjit Singh son of Brig. Ajit Singh, 876 AT, COY (ASC) (now: 618 Tpt Coy ASC) C/0 56 APO.

•  

Versus

 M/s Emaar MGF Land Privte Limited, SCO 120-122, First Floor, Sector 17C, Chandigarh – 160017 through its Managing Director.

              ....Opposite Party.

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

BEFORE: SH. DEV RAJ, PRESIDING MEMBER.

                MRS. PADMA PANDEY, MEMBER.

               

Argued by:  Sh. Pankaj Chandgothia, Advocate for the

            complainant.

            Sh. Ashim Aggarwal, Advocate for the Opposite

            Party.

 

 

PER DEV RAJ, PRESIDING MEMBER

            The facts, in brief, are that the complainants booked a residential apartment in the “MOHALI HILLS – THE VIEWS inspired living” project of the Opposite Party and was allotted Flat Unit No.H1-F07-701, which was later changed to L3-F09-901 vide endorsement dated 25.09.2008. It was further stated that the complainant paid the booking amount of Rs.7 Lacs on 23.08.2007 alongwith other due amounts to the Opposite Party. It was further stated that the complainant kept on paying the installments as demanded by the Opposite Party. It was further stated that the Opposite Party kept on delaying the actual/final allotment papers and the Flat Buyer’s Agreement, with defined motive to delay the right of possession of the flat. It was further stated that, ultimately, the said Agreement was received by the complainant in April 2008 vide letter dated 24.4.2008 (Annexure C-2). It was further stated that Apartment Buyer’s Agreement was executed between the parties at Chandigarh (Annexure C-3). It was further stated that the terms and conditions of the Agreement were one sided and unilateral because Clause 19 stated that “TIME IS ESSENCE” but it only referred to payment of installments and not to the time of delivery of possession.

2.         It was further stated that the Opposite Party committed to pay Rs.5/- per square feet per month for delay in delivering possession but it failed to do so. It was further stated that the Opposite Party also committed to pay on time reward as part of “Emaar MGF Cares For You Program”, under which the complainant was eligible for the waiver of the last installment being 5% of the basic price (Annexure C-4). It was further stated that the complainant continued to take up the issue of timely possession of the flat, but to no avail.

3.         It was further stated that the allotted unit  L-3-F09-901 was on the 9^th floor of L3 building and the complainant continued to pay the installments as per construction linked plan to the Opposite Party. It was further stated that the complainant never defaulted in paying the installments. It was further stated that the Opposite Party vide communication dated 4.8.2012 (Annexure C-5) certified that the complainant qualified for the 5% waiver for timely payment. It was further stated that later on it came to the notice of the complainant that the Opposite Party was not authorized to construct the floor viz. 9^th Floor, on which, the complainant was allotted the flat, as was clear from the letter dated 05.08.2013 written by the complainant to its Financier M/s HDFC Ltd., Chandigarh (Annexure C-6) . It was further stated that the complainant also wrote to the Opposite Party to specify the reason for re-location, vide his email dated 8.7.2013 (Annexure C-7).

4.         It was further stated that the Opposite Party then allotted a much inferior unit No.TVM G3-F05-502, in lieu of the earlier allotted unit vide letter dated 2.8.2013 (Annexure C-8), which was having much lesser area than the earlier one and its price too was less. It was further stated that statement of account as on 4.1.2014 issued by the Opposite Party regarding G3 flat was annexed as Annexure C-9. It was further stated that even as late as 30.4.2013, the Opposite Party continued to demand installments as per construction linked plan and demanded a sum of Rs.2,71,000/- on the pretext of having completed the 8^th Floor. It was further stated that during all this time, the Opposite Party never disclosed that the allotted 9^th Floor was not approved and would not be constructed. It was further stated that it was only in June 2013, when the complainant physically visited the site office, came to know that 9th Floor where the flat was allotted, was not being constructed.

5.         It was further stated that the complainant, perforce, had to accept the unit TVM G3-F05-502 measuring 1550 square feet in lieu of the 9^th Floor unit measuring 1800 square feet because the Opposite Party did not offer the unit of similar size and location. It was further stated that the Opposite Party admitted their fault vide email dated 25.7.2013 (Annexure C-10). It was further stated that the complainant had taken loan of Rs.25,00,000/- from a Bank for paying the price of the allotted flat on 9^th Floor, which actually never existed (Account summary - Annexure C-11). It was further stated that the complainant with a fear of losing his hard earned money, had to settle for the inferior unit. It was further stated that the complainant was entitled to allotment of 1800 sq. feet. Apartment for which the Opposite Party had charged him for over six years. It was further stated that the Opposite Party is not in a position to deliver possession of any flat, much less that allotted to the complainant and the scheme floated was just a farce. It was further stated that the Opposite Party collected huge money from the general public, without having any intention to deliver physical possession of the promised plots/flats. It was further stated that the aforesaid acts of Opposite Party, not only amounted to deficiency, in rendering service, but also indulgence into unfair trade practice.

6.         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, seeking directions to the Opposite Parties, to give possession of the allotted flat/comparable flat measuring 1800 sq. feet having similar size and location as of originally allotted unit L3-F09-901 or refund the entire deposited amount of Rs.52,88,642/- alongwith interest @12% per annum from the date of respective deposits till the date of refund; pay compensation of Rs.5/- per sq. feet per month for the 1800 sq. feet apartment w.e.f. February 2011; Rs.10,00,000/- as compensation for opportunity cost; Rs.3,00,000/- as compensation for physical harassment and mental agony; Rs.3,00,000/- as deterrent damages for adopting various unfair trade practices by the Opposite Party; Rs.1,00,000/- as punitive damages in favour of UT State Legal Services Authority and Rs.50,000/- as costs of litigation.

7.         The Opposite Party, filed its written statement on 13.02.2015. In its written statement, the Opposite Party took up a preliminary objection that the complainant was not a consumer within the meaning of Consumer Protection Act, 1986 as he had purchased more than one plot/unit from the Opposite Party. It was stated that the complainant concealed the fact that vide agreement dated 14.3.2008, he had purchased a commercial unit/shop bearing No.12, SF in Central Plaza for Rs.55.30 Lakhs vide allotment letter dated 20.11.2007 (Exhibit OP/2). It was further stated that the complainant has also filed another complaint bearing No.189 of 2014 with respect to the said shop.

8.         On merits, it was stated that the Opposite Party launched plots in Sector 105, 108 and 109 and invited applications from customers, who were interested in booking the units in the project. It was further stated that the relevant approvals were available and shown to the complainant. It was further stated that Clauses C, D, E and F clearly mentioned that the Opposite Party had all relevant approvals for setting up of integrated township. It was further stated that Clauses F and G clearly recorded that the allottee had inspected all approvals, records etc. and satisfied himself as to title of the Opposite Party Company. It was further stated that the complainant, having satisfied himself in 2008, was having no locus-standi to question the same at this stage and the said grievance besides being baseless, was in any event time barred. It was further stated that the complainant was initially provisionally allotted Unit No.TVM H1-F07-701 vide letter dated 31.8.2007 and he vide letter dated 5.9.2008 (Exhibit OP/6) requested for upgradation of unit having 1800 sq. ft. It was further stated that acceding to the request of the complainant vide letter dated 25.09.2008 (Exhibit OP/7), addendum to agreement, dated 29.02.2008 (Exhibit OP/8) was signed, which recorded change in unit from H1-F07-701 to L3-F09-901. It was denied that there was delay in executing documents/Plot Buyer’s Agreement. It was also denied that the Agreement was unilateral or one sided.

9.         It was further stated that the complainant is highly educated person and had signed the agreement after duly reading and agreeing to its terms. It was further stated that as per Clause 23.1 of the Agreement, compensation for delay in handing over possession was payable @Rs.5/- per sq. feet per month and is taken up for consideration at the time of final handover/registration. It was further stated that only those allottees qualified for such compensation who had not defaulted in remitting their installments. It was denied that the Opposite Party was not authorized to construct the floor in which the complainant was allotted the flat. It was further stated that the construction on Tower L is going on. It was further stated that as per Clause 12 of the Buyer’s Agreement, it was agreed and acknowledged by the complainant that the layout plans were tentative and subject to the change at the sole discretion of the company. It was further stated that, accordingly, there was change in the layout of Tower L3, subsequent to which the complainant was communicated the same and various options given. It was further stated that the complainant requested for relocation to another unit and, accordingly, after due discussion, the complainant vide letter dated 2.8.2013 (Annexure C-8) was allotted unit No.G3-F05-502. It was further stated that the complainant knew about the area of the unit before giving a confirmation and, subsequently, an amendment agreement dated 5.8.2013 (Exhibit OP/9) was signed between the parties, which set out the area of the unit.

10.       It was further stated that the unit was changed vide letter dated 2.8.2013 and the complainant duly accepted the original letter by hand from the office of the Opposite Party. It was further stated that the demands were raised according to the schedule, which was shared with the complainant at the time of unit change since the construction milestones had been achieved in Tower G. It was further stated that the demand raised on 12.4.2013 was for completion of eighth floor roof slab and the milestone was achieved in Tower L3 also and hence, no money was illegally collected by the Opposite Party. It was further stated that the complainant was given the options of relocating to another unit of similar size and other options during the meetings, which were refused by him. It was further stated that the complainant himself requested to relocate to the present unit in Tower G, without any coercion from the Opposite Party or force.

11.       It was denied that the Opposite Party promised similar flat in future, in fact, various options were shared with the complainant and he voluntarily accepted allotment of G3-F05-502. It was denied that the complainant was entitled to allotment of 1800 sq. ft. allotment. It was further stated that the Opposite Party has already started offering possession in Tower G1 and G2. It was further stated that the Opposite party is expediting the completion in Tower G3 and possession of the unit is expected to be handed over to the complainant shortly. It was further stated that as per Clause 21.1, possession was proposed to be handed over within 36 months of allotment and there was no definite agreement stating  that possession would definitely be delivered within 36 months. It was further stated that it is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract more so when there is penalty clause under the agreement for any alleged delays. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

12.       The complainant filed replication, wherein he reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Party.

13.       The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents, were attached.

14.       The Opposite Party, in support of its case, submitted the affidavit of Sh. Sachin Kapoor, its Senior Manager (Legal) and Authorized Representative, 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 Counsel for the complainant has submitted that initially, the complainant was allotted flat having super area of 1800 Sq. Ft. in the project of the Opposite Party, namely, Mohali Hills – The Views and Apartment Buyer’s Agreement was executed at Chandigarh on 29.02.2008. He further submitted that vide Addendum dated 25.09.2008, Unit No.H1-F07-701, originally allotted to the complainant was changed to Unit No.L3-F09-901 in “The Views”, Sector 105, Mohali Hills, Mohali. He further submitted that the area of the changed unit was 1550 Sq. Ft. He further submitted that the possession of the unit was still not ready and the Opposite Party in its written statement in Para 10 stated that the Opposite Party was expediting the completion in Tower G3 and possession was expected to be handed over to the complainant shortly. Regarding objection of the Opposite Party that the complainant was not a consumer, he submitted that the other plot was allotted in resale from the previous purchaser viz. Mrs. Ranjana Kumar Malik and the same had already been sold by the complainant in January 2014 whereas when the complaint was filed in December 2014, the complainant was allottee of one residential plot. He further submitted that shop-cum-flat (with 50% share) was purchased to earn livelihood.

17.       The Counsel for the Opposite Party, on the other hand, submitted that initially flat having super area of 1550 Sq. Ft. was allotted to the complainant on 29.02.2008. He further submitted that upon receipt of request of the complainant for upgradation of his unit to 1800 Sq. Ft. facing pool, the same was changed as a special case and Unit No.L3-F09-901 in “The Views”, Sector 105, Mohali Hills, Mohali  was allotted on 25.09.2008 (Exhibit OP/7), and, accordingly, Addendum dated 25.09.2008 was signed by the complainant and the Opposite Party. He further submitted that on the request of the complainant, Unit No.TVM G3-F05-502 measuring 1550 Sq. Ft. was allotted as a good will gesture and amended agreement was executed on 5.8.2013. He further submitted that as per Clause 12.3 of the original agreement, the Company has the right to carry out addition, deletion, alteration and modification in the building plans and it was on account of such reasons that there was some delay. He further submitted that the complainant was not a consumer as he was also allotted another plot in Sector 109, Mohali Hills in the project of the Opposite Party, by endorsing unit allotted to Mrs. Ranjana Kumar Malik in favour of the complainant on 13.5.2008. The Counsel placed reliance on Chilukuri Adarsh Vs. M/s. Ess Ess Vee Construction, MANU/CF/0258/2012 and Indrajit Dutta Vs. Samriddhi Developers Pvt. Ltd. & others, First Appeal No.1219 of 2014 decided by the National Consumer Disputes Redressal Commission on 05.02.2015, to contend that when a consumer had booked more than one unit of residential premises, it amounted to booking of such premises for commercial purposes to earn profits. He further submitted that complainant had also 50% share in the commercial Unit No.12 on Second Floor in commercial project, Central Plaza situated at Mohali Hills, Sector 105 as was evident from Exhibit OP/2. He further submitted that the rejoinder filed by the complainant was dated 15.03.2015 but the same was notarized antedate i.e. on 15.01.2015.

18.       Admittedly, in lieu of initially allotted unit No.H1-F07-701 to the complainant, on his request, he was, as a special case, allotted Unit No.L30-F09-901 vide letter dated 25.09.2008 (Exhibit OP/7) and addendum dated 25.09.2008 (Exhibit OP/8) was signed by the complainant (Annexure C-8) and the Opposite Party. Subsequently, as is evident from the record, Unit No.TVMN G3-F05-502 measuring 1550 Sq. Ft. was allotted to the complainant and amendment agreement was executed on 5.8.2013. Besides the flat aforesaid, the complainant had another residential Plot No.365 having approximate area of 300 sq. yards in Augusta Greens, Sector 109, Mohali (Exhibit OP/3), which he disposed of in January 2014. This plot was initially purchased by some other allottee, namely, Ms. Ranjana Kumar Malik but the same was endorsed in favour of the complainant by the Opposite Parties vide endorsement dated 27.06.2008 (Exhibit OP/3). It is also evident from letter dated 20.11.2007 (Exhibit OP/2) that the complainant alongwith Sh. Karpaljit Singh was provisionally allotted Unit No.12 on SF Floor in the commercial project, Central Plaza, situated at Mohali Hills, Sector 105, SAS Nagar, Mohali.

19.       The principal question, that falls for consideration, is, as to whether, complainant is a consumer, within the meaning of consumer, as defined under Section 2(1)(d) (i) of the Act, or not. The Counsel for the Opposite Parties placed reliance on case titled Chilukuri Adarsh Vs. M/s Ess Ess Vee Constructions, MANU/CF/0258/2012 (National Commission) to contend that even when a consumer had booked more than one unit of residential premises, it amounted to booking of such premises for investment/commercial purpose. He also placed reliance on Indrajit Dutta Vs. Samriddhi Developers Pvtr. Ltd. & Ors, First Appeal No.1219 of 2014, decided by the National Commission on 05.02.2015, wherein the National Commission, while quoting its earlier judgment in Chilukuri Adarsh Vs. M/s Ess Ess Vee Constructions’s case (supra), held that when a consumer had booked more than one unit of residential premises, it amounted to booking of such premises for commercial purposes. The Counsel for the complainant, on the other hand, submitted that after sale of Plot No.365 in Sector 109, Mohali in January 2014, the complainant was left with one residential flat and, therefore, he was very much a consumer. This argument does not hold water. Clearly, the complainant had booked two residential units in his name in the project of Opposite Parties and both the properties stood in his name till January, 2014. Thus, the complainant invested in two residential units for commercial purposes, to earn huge profits. The plea of the complainant is that aforesaid judgments are distinguishable on facts as plot which he sold in January 2014, was not booked but purchased in re-sale. As is evident from record, second residential plot was endorsed in favour of the complainant by Opposite Parties and the terms and conditions on which the plot, was booked by the previous allottee, stood vested in the complainant. The same, therefore, amounted to booking of more than one residential unit and investment for commercial purposes, to earn profits.

20.       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’s case (supra), MANU/CF/0258/2012 = III (2012) CPJ 315 (NC). In view of the law settled by the National Commission, in the aforesaid cases, it is held that the complainant, who was having more than one residential property, in his name during the period 2008, till January 2014 did not fall within the definition of consumer, and, as such, the consumer complaint is not maintainable.

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

22.       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.

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

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

Pronounced.

1^st April, 2015.

 [DEV RAJ]

PRESIDING MEMBER

 

 

 

 (PADMA PANDEY)

        MEMBER

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