Chandigarh

StateCommission

CC/189/2014

Col. Karamjit Singh - Complainant(s)

Versus

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

Pankaj Chandgothia, Adv

01 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                UNION TERRITORY, CHANDIGARH

 

Consumer Complaint No.	189 of 2014
Date of Institution	19.12.2014
Date of Decision	01/04/2015

 

1. Col.Karamjit Singh son of Brig.Ajit Singh, #207, New Defence Colony, Cantt. Road, Jalandhar Cantt. 618 Tpt Coy ASC C/o 56 APO.

 

2. Lt. Col.Karpaljit Singh son of Brig. Ajit Singh, #207, New Defence Colony, Cantt. Road, Jalandhar Cantt.

….…Complainants

 

V E R S U S

 

M/s Emaar MGF Land Private Limited, SCO 120-122, 1st Floor, Sector 17-C, Chandigarh – 160017, through its Managing Director.

                                                        .….. Opposite Party

 

BEFORE: SH.DEV RAJ, PRESIDING 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

 

1.        In brief, the facts of the case are that the Opposite Party floated a scheme for allotment of units under the name and style of “CENTRAL PLAZA”. The official of the Opposite Party started promoting the scheme much before even the actual drawings were made and even before the actual grant of licence to develop the land was granted. It was stated that the complainants were in urgent requirement of a shop unit in a developed area, for the purpose of earning their livelihood, they were taken in by the promises floated by the agents/officials of the Opposite Party. The complainants applied for a unit priced at Rs.55,30,722/- vide application dated 29.10.2007 (Annexure C-1) and paid the registration/booking amount of Rs.7,82,393/- towards the unit vide receipt dated 3.11.2007 (Annexure C-2). It was further stated that the Unit No.12 on SF Floor was provisionally allotted vide letter dated 20.11.2007 (Annexure C-3) to the complainants and after receipt of the payment towards registration, the Opposite Party delayed in sending of the Agreement, which they did after five months (Annexure C-4). It was further stated that  the complainants continued to deposit the installments/payments towards the unit vide receipts Annexure C-6. The total amount of Rs.52,55,153/- stood paid to the Opposite Party. Copy of statement of account is Annexure C-7 and a perusal of the same would show that an amount of Rs.69,760/- is lying in excess with the Opposite Party and further showed that “start of finishing work” in May, 2011 but after three years of this time, the Opposite Party did not finish the work.
2.         It was further stated that the complainants continued to take up the issue of development and construction of the unit with the Opposite Party but it continued to shirk away from the promises, time and again. It was further stated that as per Clause 22 of the Agreement, the Opposite Party promised to give possession within 3 years at the most and as per Clause 24, the Opposite Party committed to pay Rs.50/- per square feet per month for delay in delivering possession. 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 complainants engaged in the Indian Army and wanted to earn their livelihood by renting out the premises or by carrying on their own work after taking pre-mature retirement from the army. 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 was delayed beyond all  limits. The representative of the complainants visited the office of the Opposite Party several times, but to no avail.  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.
3. In its written statement, Opposite Party stated that complainant No.1 is not a “consumer” within the meaning of the Consumer Protection Act, 1986, as he purchased more than one plot/unit from the Opposite Party. It was further stated that complainant No.1 had concealed the fact that vide Agreement dated 29.02.2008 (amended on 05.08.2013) he purchased a residential unit from the Opposite Party for an amount of Rs.49.75 lacs and the same was provisionally allotted to him vide allotment letter dated 31.08.2007 (Exhibit OP/2). It was further stated that complainant No.1 filed another complaint bearing CC/177/2014 with respect to the said unit, which is pending before this Commission. It was further stated that complainant No.1 purchased the plot from the secondary market bearing No.365, Augusta Greens, Sector 109, Mohali, which was endorsed in his favour on 13.05.2008. The said plot was originally allotted on 05.05.2007 for Rs.34.50 lacs. Copy of provisional allotment letter dated 05.05.2007 endorsed in favour of the complainant on 13.05.2008 is Exhibit OP/3. It was further stated that possession of the said plot was taken over by complainant No.1 on 18.01.2010 vide Possession Certificate (Exhibit OP/4). It was further stated that vide letter dated 24.01.2014 (Exhibit OP/5), complainant No.1 was left with no right on the plot, as apparently he had sold the same for profit. It was further stated that there was no averment in the complaint that the complainants did not own any other unit/plot in their name and, as such, it could be inferred that the purchase of the shop was for investment/commercial purposes. Further, there was no averment that the purchase of the said shop was for earning livelihood by means of self employment and on the contrary, in para No.12 of the complaint, it was admitted that the complainants wanted to earn “livelihood by renting out the premises or by carrying on their own work”. It was further stated that the complainants were investors, who purchased the shop for rental income and no details of the complainants’ educational qualifications or what business they intend to start from the commercial space and how area of approx. 1500 Sq. feet was to be utilized for earning livelihood by self employment, were given.

4.             It was further stated that as per Clause 22.1, possession was proposed to be handed over within 36 months of the Agreement. Thus, there was no definitive Agreement stating that possession would definitely be delivered within 36 months. It is well settled principal of law that in cases of sale of immoveable 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 delay. It was further stated that this Commission had no jurisdiction to entertain the present complaint, as it was specifically mentioned in Clause No.43 of the Agreement that all the disputes should be referred to an Arbitrator to be appointed as per provisions of Arbitration and Conciliation Act, 1996.  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 complainant No.1 had purchased two other residential units from the Opposite Party and sold off one residential unit after obtaining possession and it is clear that the complainants are investors and had purchased the 1477 Sq. Ft. shop costing over Rs.55 lacs for investment/commercial purposes and could not be considered to be consumers. It was further stated that the complainants paid an amount of Rs.52,76,611/- towards the shop. Copy of the statement of account is Exhibit OP/6. It was further stated that the Opposite Party had obtained partial Occupation Certificate in Central Plaza and it had applied for grant of Occupation Certificate on 05.02.2015. It was further stated that possession of the unit, in question, was expected to be handed over to the complainants shortly. It was further stated that as per Clause 22.1 of the Agreement, possession of the unit was proposed to be offered within 36 months from the date of signing the Agreement with a grace period of 90 days to apply and obtain the Occupation Certificate and in case of delay, the interest of the allottees was safeguarded under the Agreement Clause 24.1 which provided for compensation in case of any delay. It was further stated that the Opposite Party would be liable to pay Rs.50/- per sq. feet per month subject to the allottee having complied with all provisions of the Buyer’s Agreement and not been in default in any point of time. It was further stated that the Opposite Party had all the necessary approvals for developing and launching the project. The complainants duly signed the Agreement after satisfying themselves in all respects. It was further stated that all the payments were demanded and received by the Company, as per the payment schedule. It was further stated that, Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.

5.             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 the Opposite Party. 

6. The Parties led evidence, in support of their case.
7. We have heard the Counsel for parties, and have gone through the evidence and record of the case, carefully. 
8. The Counsel for the complainants submitted that the Opposite Party floated a scheme for allotment of units under the name and style of “CENTRAL PLAZA” and they were in urgent requirement of a shop unit in a developed area, for earning their livelihood, as such,  applied for a unit priced at Rs.55,30,722/- vide application (Annexure C-1). He further submitted that Unit No.12 on SF Floor was provisionally allotted to the complainants vide letter dated 20.11.2007 (Annexure C-3) and, thereafter, Buyer’s Agreement was executed between the parties on 14.03.2008 (Annexure C-4). He further submitted that the total amount of Rs.52,55,153/- was paid by the complainants to the Opposite Party. He further submitted that a perusal of the statement of account (Annexure C-7) showed that an amount of Rs.69,760/- was lying in excess with the Opposite Party. He further submitted that as per Clause 22 of the Agreement, the Opposite Party promised to give possession within 3 years, but it failed to do so. He further submitted that as per Clause 24 of the Agreement, the Opposite Party committed to pay Rs.50/- per square feet per month for delay in delivering possession. He further submitted that the Opposite Party collected huge amount of money from the general public, without having any intention to deliver physical possession of the promised unit. He further submitted that there was deficiency in rendering service and indulgence into unfair trade practice on the part of the Opposite Party. 
9.         On the other hand, the Counsel for the Opposite Party, submitted that the complainants did not fall within the definition of “Consumer” as defined in the Consumer Protection Act, 1986 because one of the complainants (complainant No.1) purchased more than one plot/unit from the Opposite Party.        He further submitted that as per Clause 22.1 of the Agreement, possession was proposed to be handed over within 36 months of Agreement but there was no definitive Agreement that possession would definitely be delivered within 36 months and it is well settled principal of law that in cases of sale of immoveable 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 delay. He further submitted that this Commission had no jurisdiction to entertain the complaint, as mentioned in Clause No.43 of the Agreement that all the disputes should be referred to an Arbitrator to be appointed as per provisions of Arbitration and Conciliation Act, 1996.  He further submitted that Clauses C,D,E and F clearly mentioned that the Opposite Party had all relevant approvals for setting up of integrated township. He further submitted that complainant No.1 purchased two other residential units from the Opposite Party and sold off one residential unit after obtaining possession and clearly the complainants are investors and they had purchased 1477 Sq. Ft. shop, costing over        Rs.55 lacs for investment/commercial purposes. He further submitted that the Opposite Party obtained partial Occupation Certificate in Central Plaza and it had applied for grant of Occupation Certificate on 05.02.2015. He further submitted that in case of delay, the interest of the allottees was safeguarded under the Agreement Clause 24.1 which provided for compensation in case of any delay by the Opposite Party @Rs.50/- per sq. feet per month, subject to the allottee having complied with all provisions of the Buyer’s Agreement. He further submitted that all the payments were demanded by the Company as per the payment schedule and there was no deficiency in service and indulgence into unfair trade practice on the part of the Opposite Party.
10.         Admittedly, the complainants booked commercial space i.e. Unit No.12, measuring 1477 Sq. Feet, Second Floor in the project of the Opposite Party vide application (Annexure C-1) by depositing booking amount of Rs.7,82,393/- vide receipt (Annexure C-2), which was provisionally allotted to them (complainants) vide letter dated 20.11.2007 (Annexure C-3). It is also the admitted fact that Buyer’s Agreement dated 14.03.2008 (Annexure C-4) was executed between the parties and the total price of the unit was Rs.55,30,722/-, as reflected at page No.29 of the Buyer’s Agreement. Even the Opposite Party placed on record Exhibit OP/2, wherein, Unit/Apartment No.H1-F07-701 was provisionally allotted to one of the complainants (complainant No.1). Besides the unit/apartment aforesaid, one of the complainants (complainant No.1) 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 one of the complainants by the Opposite Party vide endorsement dated 27.06.2008 (Exhibit OP/3).
11.         The core question, that falls for consideration, is, as to whether, complainants are consumers, within the meaning of “consumer”, as defined under Section 2(1)(d) (i) of the Act, or not. The Counsel for the Opposite Party placed reliance on case titled Shri Harnam Singh Vs. Shalimar Estate Pvt. Ltd. & Ors., Revision Petition No.1129 of 2012, decided by the National Commission on 29.05.2012, wherein, the showroom was purchased for a consideration of Rs.80 lakhs and the petitioner failed to show that showroom was for some charitable purpose or for some self-employment of the petitioner. Therefore, the Revision Petition was dismissed in limine. He also placed reliance on Harish Kumar Kochar Vs. GILLCP Developers Pvt. Ltd. & Ors., Revision Petition No.2386 of 2011, decided by the National Commission on 27.01.2015, wherein, the District Forum concluded that the petitioner/complainant had purchased the site, in question, for commercial purpose and since he was already earning his livelihood by employment under the Punjab University, Chandigarh, he did not fall within the definition of Consumer under the Consumer Protection Act and the District Forum dismissed the complaint. Aggrieved against the said order, filed an appeal bearing No.177/2010 before the State Consumer Disputes Redressal Commission, Punjab, Chandigarh, which was dismissed vide order dated 19.04.2011 and the order of the District Forum was upheld. Thereafter, the petitioner/complainant filed Revision Petition No.2386 of 2011 before the National Commission, which was also dismissed as the petitioner/complainant did not come under the definition of consumer as envisaged in the Consumer Protection Act.  It has been averred in the complaint that they wanted to earn livelihood by renting out the premises or carrying on their work. The complainants being the Army Officers are earning their livelihood under the Indian Army. The shop was booked by the complainants in the year 2007 and since they are still working in the Army, it cannot be accepted that they intended to purchase the same (shop) to earn livelihood. Obviously, the commercial space was purchased by the complainants for commercial purpose with a view to earn huge profits. There is, thus, merit in the contention of the Opposite Party that complainants are not consumers. In view of the law settled by the National Commission, in the cases titled Shri Harnam Singh Vs. Shalimar Estate Pvt. Ltd. & Ors. & Harish Kumar Kochar Vs. GILLCP Developers Pvt. Ltd. & Ors. (supra), it is held that the complainants, do not fall within the definition of consumer, and, as such, the consumer complaint is not maintainable.

12.            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.

13.            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.

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

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

Pronounced.                                                                                    

01/04/2015                               

                                                                                                            Sd/-                                  [DEV RAJ]

                                                                                    PRESIDING MEMBER

 

Sd/-

[PADMA PANDEY]

MEMBER