S. Jagroop Singh Mahal, Member:
1. This appeal is directed against the order dated 6.10.2010 rendered by the learned District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant/respondent No. 1 and directed the OPs 2 and 3/appellants to refund the booking amount of Rs. 15.50 lakh to the complainant along with interest @ 9% per annum from the date of deposit and Rs. 10,000 as costs of litigation.
2. The facts, in brief, are that the OPs invited applications for allotment of commercial unit to be constructed by them at Gurgaon. The complainant, being interested, applied for it and paid a sum of Rs. 15.50 lacs vide cheque dated 25.10.2007 as booking amount along with the application form dated 5.11.2007. Subsequently, the complainant changed his mind and requested for refund of the amount vide letter dated 5.2.2008 (C-1). However, the OPs instead of refunding the amount, sent to him allotment letter (C-4), though the project was not viable. The complainant insisted for refund of the amount but despite his several requests through e-mails and legal notice, OPs failed to refund the booking amount. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.
3. OP-1 in its reply at the outset took preliminary objection that the complainant does not come within the definition of âconsumer as the dispute related to commercial property. It was admitted that the complainant had applied for allotment of the unit by depositing Rs. 15.50 lacs; signed the terms and conditions and undertook to abide by the payment schedule at the time of filing up the application form. It was pleaded that the complainant himself backed out and sought the refund of the booking amount on the ground of unavoidable circumstances. It was stated that due to the efforts made by OP-1, OPs 2 and 3 were ready to return the aforesaid amount but the complainant refused to accept the same and demanded more. It was pleaded that the complainant was allotted Unit No. 1008 on the 10th Floor (Commercial Section) in the project of OPs and after issuance of the allotment letter, the complainant could not seek refund of the booking amount. It was averred that as the complainant breached the terms and conditions, therefore, the earnest money stood forfeited. It was admitted that a number of e-mails were exchanged between OPs and the complainant. Denying all the material allegations of the complainant and pleading that there was no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint was made.
4. OP Nos. 2 and 3 in their separate reply also admitted that the complainant had applied for allotment of the unit by depositing Rs. 15.50 lacs. It was stated that the complainant signed the broad terms and conditions and had undertaken to abide by the payment schedule at the time of filing up the application form. It was denied that letter dated 5.2.2008 was either received or issued by the OPs or that the project was not viable. It was averred that as per the terms and conditions, OPs were only liable to refund the amount after deduction of 10% of the sale consideration besides delayed interest and other amounts. It was further pleaded that as a goodwill gesture, they were prepared to issue a cheque for the full amount but the complainant refused to accept the same. It was admitted that a number of e-mails were exchanged between them and the complainant. Denying all the material allegations of the complainant and pleading that there was no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint was made.
5. Parties led evidence in support of their case.
6. After hearing the Counsel for the parties and on going through the evidence on record, the learned District Forum allowed the complaint in the manner referred to in the opening para of this order.
7. Feeling aggrieved, the instant appeal has been filed by the appellants/OPs 2 and 3.
8. We have heard the Counsel for the parties and have gone through the evidence on record of the case carefully.
9. The learned Counsel for the appellants/OPs 2 and 3 has argued that their head office is at Gurgaon; the application form (Annexure R-1/1) was also forwarded to Gurgaon and the amount was received at Gurgaon. It is argued that no cause of action accrued at Chandigarh and the learned District Forum at Chandigarh did not have the jurisdiction to entertain and try this complaint. We do not find any merit in this argument. It is admitted that OP-1 facilitated in the booking of the commercial space on behalf of OPs 2 and 3, as mentioned in para 5 of the reply filed by OP-1. It admitted having accepted the application form from the complainant at Chandigarh but its contention is that no payment was made along with the said application form. This contention is factually incorrect. OPs 2 and 3 have annexed with their reply the copy of the application submitted by the complainant through OP-1, in para 2 of which it was specifically mentioned that a cheque dated 25.12.2007 for Rs. 15.50 lacs drawn on Punjab and Sind Bank, Chandigarh was being enclosed. Further, the complainant had mentioned in para 1 of the complaint that the said application was submitted to OP-1 by him at Chandigarh for allotment of the unit. OP-1 did not deny this fact in their reply and rather contended that it was a matter of record and needed no reply. OPs 2 and 3 also admitted the contents of para 1 to the effect that the same are matter of record and needed no reply. The contention of OP-1 that the cheque was paid directly to OPs 2 and 3 and was not submitted to them is falsified by the application (Annexure R-1) submitted by the complainant. The cheque was drawn on the Punjab and Sind Bank, Chandigarh where the complainant was having his bank account. The payment was, therefore, made to the OPs 2 and 3 from Chandigarh. In this manner, the application as well as the cheque for payment was given by the complainant to OP-1 at Chandigarh and, therefore, a part of cause of action had accrued at Chandigarh where one of the OPs, namely OP-1, was carrying on business. The District Forum, Chandigarh, therefore, had the jurisdiction to entertain and try this complaint.
10. The complainant had applied for the allotment vide application, copy of which is Annexure R-1. There is no mention in this application if the OPs were competent to forfeit 10% of the sale price of the said unit if the complainant withdrew his option for allotment. Even in the absence of an agreement to this effect between the parties, the OPs have forfeited the amount in question, which on the face of it is unfair and contrary to law.
11. As against the contention of the appellant, the learned Counsel for the complainant/respondent No. 1 has argued that the complainant had requested for allotment of only one shop. There was no request for allotment of a number of shops which could be sold for a commercial purpose. It is yet to be proved as to for what use the complainant was to put the said commercial unit, if the possession thereof was delivered to him. According to him, it is far fetched to presume that the complainant would have started a commercial activity in the said premises if the same had been allotted to the complainant. It is argued that mere applying for a shop could not have been presumed to be a commercial activity.
12. There is no dispute about it that the complainant/respondent No. 1 had booked a commercial unit in Palm Square, Sector 66, Gurgaon, Haryana. Annexure R-1 is the application for allotment made by the complainant in which this fact was specifically mentioned that it was for provisional allotment of a commercial unit. The learned Counsel for Respondent No. 2/OP-1 has referred to preliminary objection No. 3 of his reply vide which a specific objection was taken that the complainant does not fall under the definition of a âconsumer because it was a commercial unit. Appellants/OPs 2 and 3 have also in para 9 of their reply and affidavit mentioned that the complainant had made an application for the purchase of a commercial property and, therefore, does not fall within the ambit of the Act. The complainant, however, did not mention in his complaint if it was a commercial property booked by him and the learned District Forum proceeded with the assumption that it was a residential accommodation as is made out from the opening lines of para 2 of the impugned order. The learned Counsel for the OPs has argued that since the application was for allotment of a commercial property, the transaction related to a commercial purpose and, therefore, the complainant is not âconsumer. It is not the case of the complainant if he booked the commercial unit for earning his livelihood, or for any other purpose, to exclude the commercial intent therefrom. The argument now being advanced by the learned Counsel for the complainant/respondent No. 1 that it was booked for running an office, or for earning livelihood, is, therefore, beyond pleadings and cannot be accepted. In case Monstera Estate Pvt. Ltd. v. Ardee Infrastructure Pvt. Ltd., IV (2010) CPJ 299 (NC), the complainant, a Private Limited Company, booked a showroom with the OPs. When the possession was not given, they filed a complaint alleging deficiency in service. It was held that the purchase of space was for commercial purpose and the complainant was not a consumer. In case SKG Engineering Pvt. Ltd. v. Emaar MGF Land Pvt. Ltd., III (2010) CPJ 260 (NC), the complainant company booked office space and paid consideration but the OPs cancelled the booking and forfeited the amount. It was held that the space was booked for office purpose and not for earning livelihood by means of self-employment and, therefore, the complaint was not maintainable. In case Rajasthan State Industrial Development and Investment Corporation Ltd. (RIICO) v. Diksha Enterprises, III (2010) CPJ 333 (NC), a plot was allotted to the complainant for setting up a factory, but the same was cancelled subsequently. It was held that the allotment was for a commercial purpose and, therefore, the complainant was not a consumer under the Act. In the present case also, a commercial unit was allotted to the complainant. The complainant, therefore, is excluded from the definition of âconsumer under the Act and is not competent to file the present complaint.
13. In view of the above discussion, we are of the opinion that the complainant does not fall under the definition of âconsumer and the present complaint was not maintainable before the learned District Forum. We, therefore, accept the appeal, set aside the impugned order and dismiss the complaint. The complainant would be free to approach the civil Court, if so desired.
Copies of this order be sent to the parties free of charge.