Complaint Case No. 456 of 2016. Case: Mansi Khanna and Ors. Vs Puma Realtors Private Limited and Ors.. Union Territory State Consumer Disputes Redressal Commission
| Case Number | Complaint Case No. 456 of 2016 |
| Counsel | For Appellant: Deepak Aggarwal, Advocate and For Respondents: Ramnik Gupta, Advocate |
| Judges | Jasbir Singh, J. (President), Dev Raj and Padma Pandey, Members |
| Issue | Code of Civil Procedure, 1908 (CPC) - Sections 15, 16, 17, 18, 19, 20; Consumer Protection Act, 1986 - Sections 11, 13 (4), 17, 2 (1) (d) (ii), 2 (1) (o), 2(1)(d), 2(1)(o), 3 |
| Judgement Date | January 11, 2017 |
| Court | Union Territory State Consumer Disputes Redressal Commission |
Judgment:
Dev Raj, Member, (Chandigarh)
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The facts in brief are that being allured of various advertisements given by the opposite parties, through newspapers, media, marketing emails etc., regarding attractive salient features of their project, launched by them, under the name and style of 'IREO RISE', Sector 99, SAS Nagar, Mohali, the complainants, vide application dated 28.07.2011 Annexure C-1, applied for allotment of a flat therein. An amount of Rs. 4.50 lacs, was paid by the complainants, as booking amount vide cheque No. 044526 dated 26.07.2011 Annexure C-2. It was stated that, thereafter, vide Provisional Allotment Letter dated 01.08.2011 Annexure C-4, the complainants were allotted flat bearing No. 001, 5 Floor, Tower Cassia Court-D, 3B2TS, measuring 1609 square feet of super area, with one car parking space. It was further stated that, vide letter dated 02.09.2011 Annexure C-5, opposite party No. 2, informed the complainants that allotment made in their favour, is under the subvention scheme, subject to approval of loan by Proforma opposite party No. 3/HDFC Bank. Apartment Buyer's Agreement Annexure C-6 was executed between the complainants and opposite parties No. 1 and 2, on 22.08.2011. It was further stated that the complainants opted for construction linked plan. As per Clause 3.1 of the Buyer's Agreement, total sale consideration of unit was fixed at Rs. 52,66,620/- which included Basic Sale Price @ 3273.22/- per square feet of super area. Besides above, the complainants were also required to pay Rs. 100/- per square feet of super area of flat, towards External Development Charges (EDC). It was further stated that Tripartite Agreement dated 28.02.2012 Annexure C-7, under subvention plan, was executed between the parties. As per the said plan, opposite parties No. 1 and 2 were liable to pay interest on the amount deposited towards the unit, in question, till its possession is delivered. It was further stated that opposite parties No. 1 and 2, paid interest to opposite party No. 3, under subvention plan uptill 31.03.2012, which fact is evident from the Certificates Annexure C-8 (colly.), which was issued by Proforma opposite party No. 3. It was further stated that, thereafter, interest on the loan amount, is being paid by the complainants.
"1. It was further stated that as per Clause 13.3, of the Buyer's Agreement, subject to force majeure circumstances and also the allottee having complied with all the formalities, opposite parties No. 1 and 2 were liable to handover physical possession of unit, in question, within a period of 30 months i.e. on or before 21.02.2014. It was further stated that, opposite parties No. 1 and 2 were also required to obtain completion/occupation certificate from the Competent Authorities, within a further period of 6 months i.e. uptill 21.08.2014, failing which, as per Clause 13.4 of the Buyer's Agreement, they were liable to pay penalty @ Rs. 7.50/- per square feet of the super area, per month, for the period of delay. It was further stated that, as per the demands raised by the opposite parties No. 1 and 2, the complainants kept on making payment of installments towards the unit, in question, however, possession of the unit was not offered by the stipulated date i.e. 21.02.2014.
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It was further stated that by January 2015, the complainants had paid Rs. 52,97,183.82Ps. against total sale consideration of Rs. 52,66,620/- but possession was not offered to them. It was further stated that various visits to the site reveal that construction work has been put to halt. It was further stated that various visits made to the office of opposite parties No. 1 and 2, requesting them to complete the construction and deliver possession of the unit, also did not yield any result. It was further stated that the act of receiving entire sale consideration by January 2015 and on the other hand, by not completing the construction of the unit, by that time and also not handing over possession to the complainants, even till the date of filing of this complaint, amounts to failure on the part of opposite parties No. 1 and 2, to honour the warranties, leading frustration of the Agreement. It was further stated that necessary permissions and certificates have also not been obtained by opposite parties No. 1 and 2, in respect of the project in question. It was further stated that request made by the complainants vide email dated 02.08.2016 Annexure C-11, to make refund of the amount deposited alongwith interest, did not yield any result.
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It was further stated that the aforesaid acts of opposite parties No. 1 and 2, amounted to clear and unambiguous failure of the warranties leading frustration of the Agreement and also an act of deficiency in rendering service, negligence and adoption of unfair trade practice. When the grievance of the complainants, 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 refund of amount of Rs. 52,97,183.82Ps. alongwith interest @ 18% per annum from the respective due dates of deposits till realization; payment of compensation in the sum of Rs. 10 lacs, on account of mental agony, physical harassment, deficiency in service, unfair trade practice and financial loss; and cost of litigation, to the tune of Rs. 2 lacs.
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Upon notice, reply was filed by opposite parties No. 1 and 2, wherein, it was pleaded that in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It was further pleaded that since the unit, in question, was purchased by the complainants for commercial purpose i.e. for investment purpose, as such, they did not fall within the definition of consumer. It was further stated that the complainants have concealed the ownership of the house, which was under their occupation, at Amritsar. It was further stated that the consumer complaint was not maintainable, as the matter relates to a dispute of contractual nature and an agreement to sell/purchase of flat, which is an immovable property. It was stated that no services were to be provided by opposite parties No. 1 and 2 to the complainants. It was further stated that, in this view of the matter, consumer complaint was not maintainable and only a Civil Court could adjudicate the dispute, in question. Territorial and pecuniary jurisdiction of this Commission was also disputed.
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On merits, sale of the unit, in question, to the complainants was not disputed. It was stated that total sale consideration of the unit was fixed at Rs. 56,11,403/- and not Rs. 52,66,620/- as alleged by the complainants. It was further stated that out of the amount of Rs. 52,97,183.82Ps. allegedly paid by the complainants, towards price of the unit, an amount of Rs. 3,03,905/- had been paid by opposite parties No. 1 and 2 to proforma opposite party No. 3, towards interest on the loan taken by the complainants, under subvention scheme. The said amount was deducted by opposite party No. 3 directly, out of the amount paid by it, in relation to demand made by opposite parties No. 1 and 2, for a sum of Rs. 15,57,678.79Ps. It was further stated that since, as per condition No. 13.3 of the Agreement, opposite parties No. 1 and 2 proposed to handover possession of the said unit, within a period of 30 months from the date of execution of the same (Agreement) or approval of the building plans, whichever is later. It was further stated that construction work of the unit is almost finished, and as and when possession of the unit is delivered to the complainants, damages will be paid to them, as per terms and conditions of the Agreement. Receipt of email dated 02.08.2016 Annexure C-11, vide which request was made by the complainants, to make refund of the amount deposited alongwith interest, was admitted. However, it was stated that, in response to the said email, the complainants were telephonically informed that opposite parties No. 1 and 2 have applied for occupation certificate, in respect of the unit, in question. It was further stated that opposite parties No. 1 and 2 had already applied for occupation certificate in respect of the unit, in question, vide letter dated 11.08.2016. The remaining averments were denied, being wrong.
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In view of the statement given by Counsel for the complainants, on 17.08.2016, notice was not served upon opposite party No. 3, as nothing was claimed against it, by the complainants.
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In the rejoinder filed, the complainants, reiterated all the averments contained in the complaint and repudiated those contained in written version of opposite parties No. 1 and 2.
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The complainants and opposite parties No. 1 and 2, led evidence, in support of their case.
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We have heard Counsel for the complainants, opposite parties No. 1 and 2, and have gone through the record of the case very carefully.
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The first question that falls for consideration is as to whether, the complainants are investors and did not fall within the definition of a consumer, under Section 2 (1) (d) (ii) of the Act, as alleged by opposite parties No. 1 and 2 or not. It may be stated here that there is nothing on the record, that the complainants are property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. On the other hand, the complainants have specifically stated in para No. 2 of the complaint that they have purchased the said unit, for their residential purpose. At the same time, in their rejoinder filed, the complainants have also clarified that they were not the owners of house, at Amritsar. Since, opposite parties...
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