Chandigarh

StateCommission

CC/21/2015

Mrs. Meenu Sardana - Complainant(s)

Versus

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

Pankaj Chandgothia, Adv

07 May 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                UNION TERRITORY, CHANDIGARH

 

 

Consumer Complaint No.	21 of 2015
Date of Institution	02.02.2015
Date of Decision	07.05.2015

 

1.        Mrs.Meenu Sardana w/o Sh.Parveen Kumar Sardana, H.No.315, Sector 10, Panchkula.

 

2.        Mr.Siddharth Sardana s/o Sh.Parveen Kumar Sardana, H.No.315, Sector 10, Panchkula.

 

….…Complainants

 

V E R S U S

 

M/s Emaar MGF Land Private Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh – 160017, through its Managing Director.

.….. Opposite Party

 

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                SH.DEV RAJ, MEMBER

                SMT.PADMA PANDEY, MEMBER      

                                                                       

Argued by:   

 

Sh.Pankaj Chandgothia, Advocate for the complainants.

Sh.Ashim Aggarwal, Advocate for the Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

                In brief, the facts of the case are that the Opposite Party floated a scheme for the allotment of residential plots/flats under the name and style of “MOHALI HILLS – THE VIEWS inspired living””. It was stated that the officials of the Opposite Party started promoting the scheme much before the actual drawings were prepared and the licence to develop the land was granted. It was further stated that the complainants booked a residential apartment in the project of the Opposite Party and was allotted flat unit No.G3/202 in Tower G at ‘The Views’, Mohali Hills. They paid the booking amount of Rs.7 lacs on 12.08.2006 vide receipt (Annexure C-1).  Thereafter, the Opposite Party issued a provisional allotment letter dated 12.10.2006 (Annexure C-2), vide which, the total consideration of the apartment was mentioned as Rs.47,27,150/- including parking, EDC, PLC and IFMC. The complainants paid the amount of Rs.1,52,500/-, as demanded by the Opposite Party, vide receipt dated 24.10.2006 (Annexure C-3). It was further stated that the complainants kept on paying the installments, as demanded by the Opposite Party, from time to time. It was further stated that  the Apartment Buyer’s Agreement was also executed between Mrs.Meenu Sardana (complainant No.1) and the Opposite Party on 28.01.2008, at Chandigarh (Annexure C-4). Copies of the demand letters and payment receipts are Annexure C-5 (Colly.). It was further stated that complainant No.1 continuously lodged written protests with the Opposite Party regarding the non-construction of apartment. The Opposite Party replied thereto admitting the delays on their part. Copies of the letters and replies are Annexure C-6 (Colly.). It was further stated that the Opposite Party was not able to give any commitment regarding the delivery of possession, which led the complainants to request it to refund their deposited amount with interest but it intimated that in case of refund, an amount of over Rs.4.40 lacs would be deducted. The complainant(s) replied that it was because of the Company’s fault that the refund was being applied for and, therefore, the entire deposited amount should be paid with interest but it was adamant on its stand, which left them with no other alternative but to continue with the allotment.

2.             It was further stated that the Opposite Party sent a letter dated 14.08.2012 claiming that the construction of Tower G was fast progressing and possession might be offered next year i.e. 2013. However, the Opposite Party even defaulted on its commitment. The Opposite Party kept on insisting of delayed payment interest totaling Rs.2924/- for very minor delays. It was further stated that the Opposite Party asked for Rs.2,26,913/- vide its letter dated 07.10.2014, to which, complainant No.1 replied vide letter dated 15.10.2014 (Annexure C-8). Perusal of the said letter showed that the Opposite Party would have to refund/pay some amount to complainant No.1, even if possession was given in December, 2014. It was further stated that as per the Agreement, the Opposite Party had committed to pay Rs.5/- per sq. ft. per month for delay in delivering possession. It was further stated that the Opposite Party had committed to “Pay on Time” reward as part of the “Emaar MGF Cares For You Program”, under which, the complainants were eligible for the waiver of last installment being 5% of the basic price. It was further stated that, on the pretext of waiving the delayed payment charges, the Opposite Party forced the complainants to issue an Undertaking-cum-Indemnity dated 10.10.2014, attempting to take away the complainant’s legal right to sue and agitate the rights before a Court of law. Copy of undertaking and the complainant’s letter are Annexure C-10 and C-11. The Opposite Party sent a letter dated 07.10.2014 (Annexure C-12) to complainant No.1 demanding 13^th installment, which was duly paid vide receipt dated 29.10.2014 (Annexure C-13). It was further stated that the Opposite Party sent another demand letter (Annexure C-15) claiming that it had received the Occupation Certificate but no such Certificate was attached by it with the demand letter. The complainants visited the office of the Opposite Party to inspect the Occupation Certificate, but it was unable to show the same.

3. It was further stated that   the Opposite Party collected huge amount of money from the general public, without having any intention to deliver physical possession of the promised units. It was further stated that the name of complainant No.2 was added as co-owner alongwith the name of his mother, complainant No.1 vide letter dated 16.07.2010 (Annexure C-16). The complainants had to take loan from a Bank to pay the installments. It was further stated that there was no communication from the Opposite Party regarding the status of the project and as to when they would be able to offer the physical possession, even though possession had already been delayed beyond all limits. The complainant’s representative visited the office of the Opposite Party several times, but they put off the matter on one pretext or the other. It was further stated that the Opposite Party was deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainants 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.
4.         The Opposite Party was duly served and put in appearance on 11.03.2015. In its written statement, the Opposite Party stated that the complainants did not fall within the definition of “Consumers” as envisaged in the Consumer Protection Act, 1986, because they had already one house/unit in their name, as is apparent from the array of the parties, and purchase of second one was for commercial purpose. It was further stated that the complainants had given their address as House No.315, Sector 10, Panchkula, so it could be inferred that the purchase of the present unit was for investment/commercial purposes. It was further stated that it is a settled law that purchase of two units even for residential purposes, debar a person from invoking the provisions of the Consumer Protection Act. 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 the complaint was filed beyond two years of the alleged accrual of cause of action, on 28.01.2008, when Agreement was signed by complainant No.1. It was further stated that as per Clause 21.1, possession was proposed to be handed over within 36 months of the allotment. Thus, there was no definite time given for delivery of possession. It was further stated that in cases of sale of immovable property, and construction, time was never regarded as the essence of the contract, more so, when there was penalty clause under the Agreement for any alleged delay.   It was further stated that the Occupation Certificate of Tower G (Tower G1, G2 and G3) had already been issued by GMADA on 04.08.2014. The Opposite Party committed to offer possession of the unit allotted to the complainants and had already expedited the completion of left out finishing works with respect to the same. It was further stated that it was expected that possession would be offered by the end of August, 2015.
5.         It was further stated that this Commission did not have the jurisdiction to entertain the present complaint, as specifically mentioned in Clause 43 of the Agreement that all the disputes should be referred to an Arbitrator to be appointed, as per the provisions of Arbitration and Conciliation Act, 1996. It was further stated that Clauses F and G of the Agreement clearly stipulated that the allottees had inspected all approvals, records etc. and satisfied themselves as to the title of the Opposite Party. It was further stated that the complainant(s) were provisionally allotted unit No.TVM G3-F02-202 vide letter dated 12.10.2006 and total sale consideration was mentioned as Rs.47,27,150/- excluding any Govt. levies/taxes except EDC. It was further stated that the amounts were demanded as per the payment schedule shared with the complainants, which was time-cum-construction linked. Copy of the payment schedule being Annexure II to the Agreement is Exhibit OP/2. It was further stated that as per Clause 23.1 of the Agreement, compensation for delay in handing over is payable @Rs.5/- per sq. feet per month and taken up for consideration at the time of final handover/ registration. It was further stated that the complainants had qualified for 5% waiver initially upto the time, the letter dated 04.02.2009 was sent. However, they defaulted in remitting the future installments and, as such, they did not qualify under the scheme presently. It was further stated that, the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.
6.         The complainants, filed rejoinder to the written statement of the Opposite Party, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Party. 
7. The Parties led evidence, in support of their case.
8. We have heard the Counsel for parties, and have gone through the evidence and record of the case, carefully. 

9.             The principal question, that falls for consideration, is, as to whether, the complainants fall within the definition of consumers, as defined under Section 2(1)(d) (i) of the Act, or not. Admittedly, the unit bearing No.G3/202, 2^nd floor, situated in “The Views” at Mohali Hills, Sector 105, SAS Nagar, District Mohali, Punjab, was purchased by the complainants, in the project of the Opposite Party. The total price of consideration vide provisional allotment letter dated 12.10.2006 (Annexure C-2), was Rs.47,27,150/- including parking, EDC, PLC and IFMC. The Opposite Party specifically pleaded in the written statement that the complainants did not fall within the definition of “Consumers” as stipulated in the Consumer Protection Act, 1986, because they had already one house/unit in their names, as was apparent from the array of parties and purchase of the second unit was deemed for investment/commercial purpose. On the other hand, the complainants in the rejoinder stated that they were consumers, as they did not own any other residential unit in the project of the Opposite Party. They further stated in the rejoinder that House No.315, Sector 10, Panchkula, is in a different State of India and different geographical area.  The complainants further stated in their rejoinder that the said house was jointly owned by them (complainants) and Sh.P.K.Sardana, husband of complainant No.1. It was further stated in the rejoinder that the family comprised complainant No.1, her husband, complainant No.2 (son) and two daughters of marriageable age and, as such, the present unit was for the personal use of the family, as each member required to be settled in his/her own residence. It was further stated in the rejoinder that the complainants never purchased the apartment, in question, for investment purpose. From the above, it is undoubtedly, established that the complainants are the mother and son. They themselves admitted in their rejoinder that they (complainants) and Sh.P.K.Sardana, husband of complainant No.1 are the owners of House No.315, Sector 10, Panchkula. The complainants, thus, purchased the unit/apartment, in question, in the residential project “The Views” at Mohali Hills, Sector 105, SAS Nagar of the Opposite Party, bearing No.G3/202 on 2^nd floor, despite the fact that they are the co-owners of House No.315, Sector 10, Panchkula i.e. within the tricity of Chandigarh, just by way of investment, with a view to resell the same, as and when, there was escalation in the prices of real estate. The complainants, thus, purchased the unit/apartment 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.

10.           For the reasons recorded above, the complaint is dismissed, being not maintainable, as the complainants are not held to be consumers, with no order as to costs.

11.           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.

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

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

Pronounced.                                                                                              

07.05.2015                                                                       Sd/-

[JUSTICE SHAM SUNDER [RETD.]

                                                                                 PRESIDENT

 

                                                                                                            Sd/-                                 [DEV RAJ]

                                                                                                MEMBER

 

Sd/-

[PADMA PANDEY]

MEMBER