Delhi

StateCommission

CC/10/275

SUNITA POPLI & ANR. - Complainant(s)

Versus

OMAXE LTD. - Opp.Party(s)

19 Jan 2016

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                                    Date of Arguments: 19.01.2016  

Date of Decision: 01.02.2016

1. Complaint Case No. 275/2010

In the matter of:

1. Mrs. Sunita Popli

W/o Shri Amar Singh Popli

2. Sh. Amar Singh Popli

S/o Sh. R.S.Popli

Both R/o 175 B, DG II

Vikash Puri

New Delhi...........Complainants

 

Versus

 

M/s Omaxe Ltd.

(Through its Managing Director)
7, Local Shopping Centre

Kalkaji, New Delhi-110019..........Opposite Party                                                             

2. Complaint Case No. 276/2010

In the matter of:

1. Mrs. Sandhya Chug

W/o Shri H.K.Chug

2. Sh. H.K.Chug

S/o Sh. L.N.Chug

Both R/o B-104, Vikash Tower

PVR Complex, Vikash Puri

New Delhi...........Complainants

 

Versus

 

M/s Omaxe Ltd.

(Through its Managing Director)
7, Local Shopping Centre

Kalkaji, New Delhi-110019                 ..........Opposite Party  

 

CORAM

 

O P GUPTA                              -                  MEMBER (JUDICIAL)

S C JAIN                                 -                  MEMBER

 

1.         Whether reporters of local newspaper be allowed to see the judgment? Yes

2.         To be referred to the reporter or not? Yes

O P GUPTA -  MEMBER (JUDICIAL)

 

JUDGEMENT

1.      By this common order we shall be deciding two complaints bearing No. 275/2010 titled as Sunita Popli & Anr. Vs. M/s Omaxe Ltd. and Complaint Case No. 276/2010 titled as Sandhya Chug & Anr. Vs. M/s Omaxe Ltd. The reason being that in both the cases OP is same. Question involved is same. It is only complainant and number of the property booked which is different.
2.      In Complaint Case No. 275/2010, the complainants are husband and wife. The complaint has been filed on the allegation that OP offered allotment of the space for ATM-02 in 2005 measuring 125 sq. ft. covered area in Wedding Mall, Home Ground Office Site, Near Green Hotel, the Mall Patiala, Punjab for Rs. 10,000/- per sq. ft. The total cost was Rs. 12,50,000/- plus Rs. 12,500/- as Interest Free Maintenance Security plus EEC and FFC of Rs. 9375/-, Power Backup worth Rs. 10,625/-, Firm End Use With-holding charges worth Rs. 1250/-. In this way the total amount came to Rs. 12,83,750/-. The OP assured to handover the possession within eighteen months from the date of booking. Booking was done in June, 2005 and so OP was liable to handover the space on or before January, 2007. Rent for similar space was Rs. 35,000/- per month in the same locality, thus OP caused loss of Rs. 15,40,000/- for delayed possession. Letter dated 17.12.2008 was received showing balance of Rs. 1,05,000/- despite payment of Rs. 18,27,500/-. OP had already over charged Rs. 5,45,000/-. From letter dated 01.10.2009 it revealed that OP had increased commercial area from 125 to 173.30 sq. ft. which is arbitrary and contrary to initial offer and acceptance. The complainants had planed their budget for commercial area of 125 sq. ft. and not 173.30 sq. ft. The basic sale price was increased to Rs. 26,34,160/- and interest on account of delayed remittance was claimed to the tune of Rs. 14,101.64/-. The complainants paid Rs. 1,37,350.40/- vide receipt dated 03.12.2009 as full and final payment. Hence the complainants prayed for directing the OP to handover possession. Refund excess amount of Rs. 5,45,000/-. Pay damages @ Rs. 35,000/- per month for not handing over the possession within eighteen months amounting to Rs. 15,40,000/-. Rs. 2,00,000/- on account of pain and agony and Rs. 55,000/- as legal charges.
3.      The OP filed reply raising preliminary objection that complainants are not consumers as they booked commercial space being ATM space for letting of the same to any bank or financial institution and to earn rental income therefrom. Delivering of possession of immovable property cannot be granted under consumer protection Act as the same amounts to specific performance of contract which can be granted by Civil Court only. The complainants have falsely claimed that unit was agreed to be sold for basic sale price of Rs. 10,000/- per sq. ft. though agreed sale price was Rs. 15,200/- per sq. ft. This rate is clearly mentioned on the application form signed by the complainants, on the allotment letter and on various demand letters. The complainants have concealed various subsequent letters and reminders sent by the OP including letter dated 11.03.2010, 07.05.2010, 02.07.2010, 07.08.2010, 19.10.2010 and 19.05.2011. OP vide letter dated 21.11.2009 intimated the complainants that it had nominated maintenance agency for proper up keep and maintenance of the complex and called upon the complainants to sign maintenance agreement with that maintenance agency. OP called upon the complainants to arrange stamp paper of Rs. 2,10,800/- for execution of sale deed. Vide letter dated 31.07.2010 complainants have falsely claimed that possession was to be handed over before January 2007 whereas it is clearly mentioned in the allotment letter that construction was to be completed within thirty six months from the date of allotment letter. The complainants have unnecessarily raised objection with regard to area of the unit. They were fully aware that area of 125 sq. ft. was tentative and was subject to change at the time of offer of possession as it might increase or decrease. There is no deficiency in service or unfair trade practice. This Commission has no territorial jurisdiction as clause 26 provided that Court at Patiala and High Court in Chandigarh alone had jurisdiction.
4.      Complainants filed rejoinder and evidence by affidavit. OP has also filed evidence by affidavit.
5.      OP moved an application for dismissal of the complaint on the ground that complaint was not maintainable due to commercial transaction. The same was replied by the complainants and kept pending vide order dated 05.07.2012.
6.      In Complaint Case No. 276/2010 complainants are again husband and wife. Space was booked in ATM 01. Rest of the facts are same. The defence raised by the OP is also same.
7.      We have gone through the material on record and heard the arguments. The first plea of the complainants is that reply has been filed by the OP on 01.10.2012 which is beyond the period of 30/45 days and so the same cannot be considered. The said objection does not prevail with us for the reason that at that time the law in vogue was that time for filing written version was not being followed strictly. Rather in view of the decision of the Hon’ble Supreme Court in Topline Shoes Ltd. vs. Corporation Bank, IV (2002) SCC 33 time could be extended by the consumer courts. It is only after decision of the Hon’ble Supreme Court in Civil Appeal No. 10941-42/13 decided on 04.12.2015 titled as New India Assurance Company Ltd. vs. Hilli Multi Purpose that time frame for filing written version was made mandatory. None knew in 2012 that later on a different view would be taken by the Hon’ble Supreme Court and so OP cannot be punished for filing the written version late.
8.      Moreover the OP was permitted to file written version within four weeks vide order dated 24.08.2011. On the next date he moved an application for dismissal of the complaint on the ground of maintainability which was entertained and case was fixed for disposal of the application. It was only on 05.07.2012 that the Commission observed that said application could not be decided at that stage and OP was given an opportunity to take that plea in the written statement. The case was fixed for 01.10.2012 for filing written statement and written statement was filed on the said date.
9.      The other plea of the counsel for the complainant is that OP had filed an affidavit of Sh. Pawan Aggarwal, AR but no authority letter in his favour has been filed. So the said affidavit is not evidence in the eyes of law and consequently the documents exhibited in the said affidavit as exhibit R-1 to exhibit R-5 cannot be read in evidence. We are unable to swallow the arguments. The application form exhibit R-1 bears impression of signatures of complainants and become the document of complainants. They cannot escape from their own documents on technicality.
10.  On merits the counsel for the OP submitted and rightly so that space was booked for ATM. It is a matter of common knowledge that ATM works with machine alone and not with man power. Thus it cannot be said that complainants were to use the said space for earning livelihood by self employment and that is why the complainants have not made that allegation in the complaint. Space for ATM could have been let to bank to earn rent. Thus it is nothing but commercial. It was held by the Hon’ble National Commission in Jagmohan Chabbra & Anr. Vs. DLF Universal Ltd. IV (2007) CPJ 199 that the space purchased by the complainants was for earning profit and was relatable to commercial purpose. Therefore the complainants were not consumer within the meaning of Section 2(1)(d) of Consumer Protection Act and the complaint was not maintainable. The complaint was dismissed at the stage of admission itself.
11.  In Travel India Bureau Pvt. Ltd. Vs. HUDA & Ors. II (2008) CPJ 329 it was held that purchase of dwelling units not for earning livelihood by means of self employment related to commercial purpose which was excluded from the definition of Consumer and the complaint was dismissed at the stage of admission.
12.  This Commission took similar view in Complaint Case No. 54/2010 titled as Rakesh Kumar & Anr. Vs. Parsvnath Developers Ltd. decided on 18.05.2010. In that case the complainants have booked two shops/office spaces and there was no whisper in the complaint that shops were booked for earning livelihood. The complaint was dismissed in limini.
13.  In Consumer Complaint No. 146/2011 titled as Advik Industries Ltd. Vs. Uppal Housing Ltd. decided on 03.09.2012 the Hon’ble National Commission held that ingredients “for the purpose of earning his livelihood by means of self employment” was conspicuously missing and so the complaint was dismissed.   Reliance was placed on several earlier decisions referred to therein.
14.  Similar view was taken by the Hon’ble National Commission in Complaint Case No. 183/2012 titled as Shikha Birla Vs. DLF Relaxable Developers Ltd. decided on 01.02.2013 and in Complaint Case No. 236/2012 titled as Richa and Company Vs. DLF Universal Ltd. decided on 01.01.2012.
15. From the above discussions there can be no escape from the conclusion that the complainants are not consumers, having booked a commercial space.
16.  The allegations of basic price being Rs. 10,000/- per sq. ft. is demolished by the application form exhibited R-1 which recite the basic sale price as Rs. 15,200/- per sq. ft.  Clause 4 of the terms and conditions provided that there could be change in dimension or area. Thus the affidavit filed by the complainants are contrary to the complainants own documents.
17. To sum up the complaints are dismissed. However the complainant may seek proper remedy in Civil Court after excluding the time spent in the present proceedings as per law laid down by the Hon’ble Supreme Court in Laxmi Engineering Works Vs. PSG Industrial Institute (1995) 3 SCC 583.
18. Copy of the order be sent to the parties free of costs as per rules. One copy be placed on file of Complaint Case No. 276/2010 titled as Ms. Sandhya Chug & Anr. Vs. M/s Omaxe Ltd.

 

   

(O P Gupta)

Member (Judicial)

 

 

(S C Jain)

•  

 

6.