Chandigarh

StateCommission

CC/33/2022

Suman Gupta - Complainant(s)

Versus

Sushma Buildtech Ltd. - Opp.Party(s)

Satyaveer Singh & Alka S. Pundir Adv.

08 Dec 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	33 of 2022
Date of Institution	:	28.03.2022
Date of Decision	:	08.12.2022

 

Suman Gupta, Daughter of Sh. Man Mohan Goel R/O House No.3289, Sector 50 D, Chandigarh.

…… Complainant

V e r s u s

 

1. M/s Sushma Buildtech Limited, S.C.O. No. 172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh through its Authorized Signatory Sh. Binderpal Mittal S/o Sh. Jagan Nath.
2. Sh. Binderpal Mittal S/o Sh. Jagan Nath, Authorized Signatory & Managing Director of M/s Sushma Buildtech Limited, S.C.O. No.172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh
3. Sh. Bharat Mittal, Wholetime Director of M/s Sushma Buildtech Limited R/o H.No.233, Sector-7, Panchkula - 134109.
4. Sh. Pardeep Kumar, Director of M/s. Sushma Buildtech Limited R/o H.No.840/1, Ram Darbar Colony, Phase-2, Chandigarh - 160028.

 

…..Opposite parties

============================================================

 

Complaint case No.	:	34 of 2022
Date of Institution	:	28.03.2022
Date of Decision	:	08.12.2022

 

Suman Gupta, Daughter of Sh. Man Mohan Goel R/O House No.3289, Sector 50 D, Chandigarh.

…… Complainant

V e r s u s

 

1. M/s Sushma Buildtech Limited, S.C.O. No. 172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh through its Authorized Signatory Sh. Binderpal Mittal S/o Sh. Jagan Nath.
2. Sh. Binderpal Mittal S/o Sh. Jagan Nath, Authorized Signatory & Managing Director of M/s Sushma Buildtech Limited, S.C.O. No.172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh
3. Sh. Bharat Mittal, Wholetime Director of M/s Sushma Buildtech Limited R/o H.No.233, Sector-7, Panchkula - 134109.
4. Sh. Pardeep Kumar, Director of M/s. Sushma Buildtech Limited R/o H.No.840/1, Ram Darbar Colony, Phase-2, Chandigarh - 160028.

 

…..Opposite parties

============================================================

 

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR. RAJESH K. ARYA, MEMBER.

 

Present:-               Sh.Harsh Nagra, Advocate proxy for Sh.Satyaveer         Singh, Advocate for the        complainant.

       Sh.Vishal Singal, Advocate proxy for Sh.Sanjeev Sharma,  Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

         

                   By this order, we propose to dispose of the aforesaid two consumer complaints. Since, the issues involved in these complaints, except minor variations, here and there, of law and facts are the same, therefore, we are of the opinion that the same can be disposed of, by passing a consolidated order.

2.           The aforesaid complaints have been filed by the complainant, seeking possession of her units purchased by her alongwith compensation for the period of delay or in the alternative to refund the amount paid by her alongwith interest; compensation etc., as she is aggrieved of delay and laches; deficiency in providing service, negligence and adoption of unfair trade practice on the part of opposite parties. It has been alleged by the complainant in both the complaints that despite the fact that she has made payment of entire sale consideration, as referred to in the chart below, yet, the opposite parties have not  offered possession of the units for want of development and construction at the project site. Details with regard to the project in dispute; units purchased by the complainant; payments made by her etc. of these complaints are given below:-

CC No.	33 of 2022	34 of 2022
Project	Sushma Crescent, Gazipur, MC, Zirakpur, District SAS Nagar, Mohali	Sushma Crescent, Gazipur, MC, Zirakpur, District SAS Nagar, Mohali
Booked on	07.03.2015	07.03.2015
Allotment made on	07.03.2015	07.03.2015
Unit/flat No.	G-102, Tower G,	G-101, Tower G,
Area of the unit	1690 square feet	1690 square feet
Total cost	55,77,000.00	55,77,000.00
Amount paid	55,77,000.00	55,77,000.00
Agreement to sell	07.03.2015	07.03.2015
Due date of possession	06.03.2018 (36 months from the date of execution of agreement, as per clause 12 (d) thereof)	06.03.2018 (36 months from the date of execution of agreement, as per clause 12 (d) thereof)
Possession offered or not	Not offered	Not offered
Delay in years	More than 4 years	More than 4 years
Allottee	Original allottee	Original allottee

         

3.           Hence these complaints.
4.           In the replies filed by the opposite parties, in both the complaints, numerous similar grounds, inter alia, were taken as under:-
   1. that the complainant did not fall within the definition of ‘consumer’, as she has booked two units, which is a commercial investment;
   2. that this Commission did not vest with territorial and pecuniary jurisdiction to entertain these complaints;
   3. that these complaints are barred by limitation;
   4. that the amounts of Rs.55,77,000/- each, has never been paid and receipts, Annexure C-1, have been issued at the instance of common acquaintance of the complainant and the Director of the Company but she never deposited the amounts as mentioned in respective Annexures C-1;
   5. that the allotment letters and agreements in respect of the units in question were issued in favour of the complainants in good faith;
   6. that since the complainant failed to pay any sale consideration towards the units in question, as such, allotment thereof has been cancelled and the said units have been reallotted to other allottees;
   7. that the cancellation letters in respect of the units in question have been inadvertently missed out;
   8. that because the project in question has been registered under RERA, as such, these consumer complaints before this Commission are not maintainable;
   9. that the opposite parties are ready to make refund of the amount paid, after applying forfeiture clause, subject to proving the fact by the complainant that she had made payment towards the units in question.

 

5.           The contesting parties led evidence in support of their cases.
6.           We have heard the contesting parties and have gone through the evidence and record of both the cases, very carefully.
7.           In this case, the moot questions which arises for consideration are as under:-
   1. Whether the complainant had paid the basic sale price of Rs.55,77,000/- vide Annexures C-1, in each case?
   2. Whether the units in question were purchased for commercial purpose?
   3. Whether this Commission has pecuniary and territorial jurisdiction to entertain these complaints?
   4. Whether the complainant has filed these complaints within the period of limitation?
   5. Whether in the face of registration of the project under RERA, the jurisdiction of this Commission is barred?
   6. Whether the complainant is entitled for any relief, if yes, to what extent

 

8.           First coming to the question, as to whether the complainant had paid the basic sale price of Rs.55,77,000/- vide Annexures C-1, in each case, to the opposite parties, towards respective units or not?.  It may be stated here that undisputedly, the receipts, Annexure C-1, have been placed on record by the complainants, contents of which are reproduced hereunder:-

Annexure C-1 (In CC No.33 of 2022):-

 

SUSHMA BUILDTECH LIMITED

 

Dated: March 07th 2015

 

To

 

Mrs. Suman Gupta,

D/o Sh. Man Mohan Goel.

R/o H.No. 3289,

Sargodha Society, Sector-50 D.

Chandigarh (UT)

 

Sub: Allotment of Apartment No. G-102 in Tower G in Residential Complex to be known as Sushma Crescent being constructed by Sushma Buildtech Limited on land comprised under Khata No. 17/25,17/30,10/10 Khasra No. (1-10), 16/2(4-00), 17(4-0)24(4-0),25/1(1-14).16/1 (0-8), 4//18(3-00),23(4-00),4//13(3-3), 18-1(1-0) located at Village Gazipur, MC, Zirakpur, Distt. S.A.S.Nagar (Mohali).

 

Dear Sir,

 

Received full & final Basic Sale Price (BSP) of 55,77,000/- ( Fifty Five Lacs Seventy Seven Thousand Only) from Mrs. Suman Gupta D/o Mr. Man Mohan Goel R/o H.No.3289, Sargodha Society, Sector-50 D, Chandigarh (UT) against apartment no. G-102 in project called Sushma Crescent being constructed by M/s Sushma Buildtech Limited in Village Gazipur, Zirakpur, Distt. S.A.S.Nagar. Other dues like Floor Premium Charges (if any), Preferential Location Charges (If Any), Club Membership, Power Backup, IFMS etc. & any other charges levied by the government from time to time will be borne by the purchaser.

 

Thanking you,

 

Yours faithfully,

 

For Sushma Buildtech Limited,

 

Authorized Signatory.

 

Registered and Corporate Office: SCO 172-173, First Floor, Sector-9C, CHANDIGARH-160 009

 

Tel.: +91-172-2744992, 4610092

 

 

 

Annexure C-1 (In CC No.34 of 2022):-

 

“……SUSHMA BUILDTECH LIMITED

 

Dated: March 07th 2015

 

To

 

Mrs. Suman Gupta,

D/o Sh. Man Mohan Goel

R/o H.No. 3289,

Sector-50 D, Sargodha Society,

Chandigarh (UT)

 

 

Sub: Allotment of Apartment No. G-101 in Tower G in Residential Complex to be known as Sushma Crescent being constructed by Sushma Buildtech Limited on land comprised under Khata No. 17/25,17/30,10/10 Khasra No. (1-10), 16/2(4-00), 17(4-0)24(4-0),25/1(1-14),16/1 (0-8), 4//18(3-00),23(4-00),4//13(3-3), 18-1(1-0) located at Village Gazipur, MC, Zirakpur, Distt. S.A.S.Nagar (Mohali).

 

Dear Sir,

 

Received full & final Basic Sale Price (BSP) of 55,77,000/- Fifty Five Lacs Seventy Seven Thousand Only) from Mrs. Suman Gupta D/o Mr. Man Mohan Goel R/o H.No.3289, Sargodha Society, Sector-50 D, Chandigarh (UT) against apartment no. G-101 in project called Sushma Crescent being constructed by M/s Sushma Buildtech Limited in Village Gazipur, Zirakpur, Distt. S.A.S.Nagar. Other dues like Floor Premium Charges (if any), Preferential Location Charges (If Any), Club Membership, Power Backup. IFMS etc. & any other charges levied by the government from time to time will be borne by the purchaser.

 

Thanking you,

 

Yours faithfully,

 

For Sushma Buildtech Limited,

 

Authorized Signatory.

 

Registered and Corporate Office: SCO 172-173, First Floor, Sector-9C, CHANDIGARH-160009 Tel.: +91-172-2744992, 4610092….”

 

9.           Counsel for the opposite parties in both the cases  vehemently contended that the said receipts were issued in good faith and on the asking of common acquaintance of the complainant and the Director of the Company, yet, nothing has been placed on record to prove that the said payments were ever made by the complainant. Contrary to it, Counsel for the complainant submitted that the entire amount was paid in cash and receipts aforesaid were issued by the opposite parties, by way of Annexures C-1, which are not in dispute.

                   We have gone through the receipts, Annexure C-1, in both the cases, and bare perusal thereof reveals that these receipts have  been issued by the opposite parties on their letter pad duly signed by their authorized representative. Execution of these receipts has not been denied but the Counsel has taken a plea of issuance of the said receipts in good faith on the asking of common acquaintance of the complainant and the Director of the Company. Surprisingly, the name of the alleged common acquaintance of the complainant and the Director of the Company has not been mentioned by the opposite parties in their written reply. Even no document has been placed on record, such as, details of Bank Accounts and Income Tax Return(s) to disprove this fact. When the complainant has admitted the contents of the receipts, Annexure C-1, the onus shifts upon the opposite parties that the same does not carry the truth, especially, when they themselves have admitted that the same have been issued by them. Thus, presumption arises that the receipts, Annexure C-1, have been issued and the entire amount of Rs.55,70,000/-, in each case, has been received by the opposite parties towards the respective units.

                   Furthermore, there is not even a single document placed by the opposite parties on record that after issuance of the said payment receipts, in case, they did not receive the said amount, they ever asked the complainant by way of sending demand letters/notices/reminders to make payment in respect of her respective units. There is also not even a single document on record, whereby the booking of the said units was cancelled on account of nonpayment  of sale consideration in respect thereof and intimation in that regard had been given to the complainant. Even the copies of the said  demand letters/notices/reminders have not been placed on  record by the opposite parties, to prove that they ever demanded the said amount from the complainant, and when she failed to pay the same, the allotments stood cancelled.

                   Counsel for the opposite parties also submitted that in these cases, two units were booked by the complainant, total consideration whereof, exceeds Rs.1 Crore and she failed to explain from where she acquired this amount. We are of the view that once the opposite parties have accepted this amount in cash and receipts Annexures C-1 have been issued, now they cannot question the capacity of the complainant to pay this amount.

                   As such, under above circumstances, plea taken by the opposite parties to the effect that the complainant did not pay any amount in respect of the units in question and on the other hand, the payments receipts, Annexure C-1 were issued in good faith, being devoid of merit stands rejected.

10.           Now, we would like to deal with the objection to the effect that the complainant did not fall within the definition of ‘consumer’, as she had purchased two units allegedly for commercial purpose. It may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties, to establish that the complainant, in these complaints, have purchased the respective units in question to indulge in ‘purchase and sale of units/flats’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainant is a consumer. The mere fact that the complainant has booked two units in the project in question is not a ground to shove her out of the purview of the consumer, unless until it is proved that she is an investor and has purchased the respective units for sale in open market, to earn huge profits. Under similar circumstances, the  Hon’ble  National Commission, in  a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, while rejecting similar plea raised by the builder, observed as under:-

 

 “ In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.  In fact, this was also the view taken by this Commission in Rajesh Malhotra &Ors. Vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

 

11.           Now we will deal with the objection regarding territorial jurisdiction of this Commission; it may be stated here that since the complainant is admittedly residing at House No.3289, Sector 50 D, Chandigarh, as such, both these complaint are maintainable before this Commission, at Chandigarh, in view of provisions of Section 47 (4) (d) of Consumer Protection Act, 2019 (in short the Act, 2019) which says that a complaint  is maintainable  before the State Commission, within the limits of whose jurisdiction, the complainant(s) resides or personally works for gain. In this view of the matter, objection taken by the opposite parties stands rejected.
12.           Now, we will like to deal with the objection raised by the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate these complaints; it may be stated here that these complaints have been filed under the provisions of CPA 2019. In exercise of powers conferred by provisos to sub-section (1) of Section 34, sub-clause (i) of clause (a) of sub-section (1) of section 47 and sub-clause (i) of clause (a) of sub-section (1) of section 58 read with sub-clauses (o), (x) and (zc) of sub-section (2) of section 101 of the Consumer Protection Act, 2019, the Central Government has notified the Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021, to the effect that the State Commission shall have jurisdiction to entertain the complaints where the value of the goods or services paid as consideration exceeds fifty lacs but does not exceed rupees two crore.  As such, in the present cases, since against total value of the respective units, in question, the complainant has paid Rs.55,77,000/- each to the opposite parties,  in the manner explained above, which exceeds fifty lacs but does not exceed rupees two crore respectively, as such, this Commission has pecuniary Jurisdiction to entertain and decide these complaints. Objection taken by the opposite parties in this regard stands rejected.
13.           Now the next question which falls for consideration is, as to whether the complainant is entitled for any relief, if yes, to what extent?  It may be stated here that as per clause 12 (d) of the respective agreements, possession of the units was to be delivered within a period of 36 months from the date of execution thereof i.e. on or before 06.03.2018 in both these complaints. Relevant part of the said clause is reproduced hereunder:-

 

“……(d) The Developer shall endeavour to give possession of the said Unit to the Buyer within a period of Thirty Six(36) months from the date of the execution of this Agreement unless and until restrained by circumstances beyond its contemplation and control and subject to timely payment by the allotte. Besides. the Developer can take six months grace period for completing and handing over the said Unit to the Buyer. The Developer shall hand over the said Unit to the Buyer for his occupation and use and subject to the Buyer having complied with all the terms and conditions of this Agreement..……”

 

As stated above, despite the fact that the entire sale consideration in respect of the units in question stood received by the opposite parties, yet, there is nothing on record that possession thereof was even offered to the complainant what to speak of delivery of the same. On the other hand, now the opposite parties are trying to wriggle out on the bald  ground of nonpayment of sale consideration by the complainant, towards her respective units, which has been negated by this Commission, in the manner, referred to above.  Thus, from the peculiar circumstances of this case, it has been proved that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainant, to whom it was made, was entitled to rely upon it and she may act in reliance on it. The complainant is thereby involved in disadvantageous contracts with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainant to enter into the contracts by way of signing agreements, referred to above, and also intent to deceive her, later on by saying that no amount has been paid by her, especially, in the face of payment acknowledgement receipts, Annexure C-1, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties.

14.            It is significant to mention here that the opposite parties in their written replies, have candidly submitted that the units in questions have been re-allotted to some other persons, meaning thereby that there will be no useful purpose to order delivery of possession of the units in favour of the complainant. Under these circumstances, we are of the considered opinion that if we order refund of the amount paid by the complainant towards the respective units, in lieu of the alternative prayer made by her in her complaints regarding refund of the  amount deposited, that will meet the ends of justice. As such, the complainant is held entitled for refund of the amount(s) paid by her, towards the respective units, alongwith interest @12% p.a. from the respective dates of deposits onwards, in view of  ratio of law laid down by the Hon’ble National Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019; Anil Kumar Jain & Anr  Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019; Dr. Manish Prakash Vs. M/s. Chd Developers Ltd., Consumer Case No. 1527 of 2018, decided on 14.09.2021 and also in M/s Phoenix Infra Pvt. Ltd., Vs. Paramjit Kaur Tiwana, FA No.1855 of 2017 decided on 04.05.2022, wherein, under similar circumstances  award of interest @12% p.a. on the amount to be refunded by the developer to the complainants was upheld.
15.           Now coming to the objection taken by Counsel for opposite parties to the effect that in the face of registration of the project under the RERA, jurisdiction of this Commission is barred to entertain these complaints, it may be stated here that the said objection does not merit acceptance, in view of the ratio of law laid down by the Hon’ble Supreme Court of India in Civil Appeal No. 3581-3590 of 2020, M/s Imperia Structures Ltd. Vs. Anil Patni and another, decided on 02.11.2020, wherein it was held that the provisions of RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any consumer complaint. This view has been reiterated by the Hon’ble Supreme Court of India in Civil Appeal No. 5785 of 2019, Ireo Grace Realtech Pvt. Ltd. Versus Abhishek Khanna & Others, decided on 11.01.2021.
16.           As far as objection taken to the effect that the complaints filed are beyond limitation, it may be stated here that since it has been proved on record that actual physical possession of the units in question has not been offered and delivered to the complainant, even by the date when these complaints have been filed before this Commission or thereafter, as such, objection taken with regard to limitation is not sustainable in view of principle of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah  and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer.  In National Insurance Co. Ltd. vs. Hindustan Safety Glass Works Ltd. and allied cases, in Civil Appeal No. 3883/2007, decided on 07.04.2017, the Hon’ble Supreme Court of India held that the provisions concerning the limitation issue in the Act, 1986 could not be strictly construed to the disadvantage of a consumer in cases, where the supplier of goods or services itself was instrumental in causing delay

                   Furthermore, since, the opposite parties are still utilizing the amount paid by the complainant and have not refunded the same; in that event also there is a continuing cause of action in her  favour, in view of observations made by the Hon’ble National Commission in KNK Promoters & Developers Versus S.N. Padmini, Revision Petition No. 340 of 2011, decided on 31 Aug 2016, in which it was held that the builder cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee, to file a complaint seeking refund of the said amount. 

17.           For the reasons recorded above, both these complaints are partly accepted, with costs, as under:-

In consumer complaint bearing No.33 of 2022, the opposite parties, jointly and severally are directed as under:-

1. Refund the amount of Rs.55,77,000/-, alongwith compensation by way of interest @12% p.a., without deducting any TDS, to the complainant, from the respective date(s) of said payment, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of default till realization.

2. Pay compensation in the sum of Rs.1,00,000/- to the complainant for causing her mental agony and physical harassment; deficiency in providing service & adoption of unfair trade practice and also cost of litigation to the tune of Rs.35,000/-, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry interest @9% p.a. from the date of default till realization.

In consumer complaint bearing No.34 of 2022, the opposite parties, jointly and severally are directed as under:-

2. Refund the amount of Rs.55,77,000/-, alongwith compensation by way of interest @12% p.a., without deducting any TDS, to the complainant, from the respective date(s) of said payment, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of default till realization.

3. Pay compensation in the sum of Rs. 1,00,000/- to the complainant for causing her mental agony and physical harassment; deficiency in providing service & adoption of unfair trade practice and also cost of litigation to the tune of Rs. 35,000/-, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry interest @9% p.a. from the date of default till realization.

18.            Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case file, referred to above.
19.           The files be consigned to Record Room, after completion.

Pronounced

08.12.2022

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg