Sham Sunder (Retd.), President:
1. The facts, in brief, are that the complainant being M.A. B.Ed, having a vast experience of 20 years, in teaching line, wanted to start her own work, to get some regular income, by keeping herself busy. She planned to start English Speaking Course, Coaching Institute and Career Consultancy Course, to earn her livelihood, by way of self employment. Accordingly, she booked shop number/unit, i.e. SF-33, measuring super area 646.76 square feet, Second Floor, Radisson Hotel-cum-Commercial Tower, Zirakpur, with Opposite Parties No.1 and 2, through Opposite Party No.3, on payment of Rs.10 lacs, as booking amount, vide cheque No.000003 dated 04.10.2010. The total price of the said unit was Rs.35,24,842/-. The complainant paid another amount of Rs.14,74,438/- i.e. Rs.3,74,438/-, vide cheque No.000009 dated 04.11.2010, and Rs.11,00,000/-, in cash, on the said date (04.11.2010), to Opposite Party No.1, which was acknowledged vide Annexure C-3. Allotment letter dated 04.11.2010, was issued, in favour of the complainant. Buyer`s Agreement, was also executed between the complainant, and Opposite Parties No.1 and 2, in November, 2010. In this manner, the complainant paid an amount of Rs.24,74,438/-, towards, the part price of unit. Benefit of a sum of Rs.6,97,920/-, on account of return @11% P.A., for the period of 2 years, as per Clause 4 of the said Agreement, was credited to her account maintained by Opposite Parties No.1 and 2. The total amount came to be Rs31,72,358/-, being 90% of sale price of the unit, in question. The possession of the unit, in question, was to be delivered to the complainant, by November, 2011. The remaining price of Rs.3,52,484/-, was to be paid, at the time of delivery of possession of the unit, in question. However, the possession was not delivered to the complainant, by Opposite Parties No.1 and 2, by November 2011.
2. In the meanwhile, the husband of the complainant was transferred, from Pune. The complainant visited the site, and found that the work had been stopped. She sent a registered letter dated 03.09.2013 Annexure C-6, for the refund of amount, whereupon, she received a letter dated 11.09.2013, Annexure C-10, from Opposite Party No.2, vide which, she was informed that a notice, in the newspapers, with regard to dealings with Opposite Party No.1, had been given. It was stated that though sufficient long time had lapsed, from the stipulated date of handing over possession of the unit, in question, in favour of the complainant, yet the same was neither delivered, nor the refund of amount was made to her. It was further stated that due to these acts of omission and commission, on the part of the Opposite Parties, the complainant suffered a lot of mental agony and physical harassment. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice . When the grievance of the complainant, 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, directing the Opposite Parties, to refund the amount of Rs.31,73,358/- (infact Rs.31,72,358), alongwith interest @12% P.A., from the respective dates of deposits, till realization; compensation, to the tune of Rs.5 lacs, for deficiency, in rendering service, adoption of unfair trade practice, mental agony and physical harassment; and cost of litigation, to the tune of Rs.55,000/-.
3. Opposite Party No.1 was deemed to have been duly served, for 25.03.2014, but no authorized representative, on its behalf, put in appearance, as a result whereof, it was proceeded against exparte.
4. Opposite Party No.2, in its written version, pleaded that the complainant did not fall within the definition of a consumer. It was further pleaded that the complaint was barred by time. It was further pleaded that the dispute involved, in the complaint was not a consumer dispute, and, as such, the same was not maintainable. It was further pleaded that this Commission, has got no territorial Jurisdiction, to entertain and decide the complaint. It was further pleaded that it was a frivolous and vexatious complaint, filed by the complainant, and was liable to be dismissed, at the very threshold. It was further pleaded that the complainant had filed a complaint, in connivance with Opposite Parties No.1 and 3, against which Opposite Party No.2 had already filed a criminal complaint, with the Inspector General of Police, Chandigarh, on 22.08.2013, and, after detailed inquiry, and investigation, FIR No.70, at Police Station, Sector 17, Chandigarh, was registered, under Sections 420/467/468/471 and 120B, of the Indian Penal Code. It was further pleaded that Harpreet Singh Mann, Director of Opposite Party No.1, started embezzling and misusing the funds of the Project of Opposite Party No.2, and, as such, he was immediately removed from Directorship of the said Company, by giving public notice dated 28.12.2012. It was further pleaded that, in the said notice, it was also intimated that if Harpreet Singh Mann, had dealt with anyone, claiming to be the authorized representative of the Company, then Opposite Party No.2, be approached, within 30 days, from the date of issuance of the same (public notice). It was denied that the complainant approached Opposite Party No.2, or the Company, till 03.09.2013. It was stated that, for the first time, the complainant sent a notice on 03.09.2013, to Opposite Party No.2, for refund of Rs.31,72,358/-, reply whereto, was sent to her, vide letter dated 11.09.2013, but this fact was concealed by her. It was further stated that the complainant had attached forged and fabricated receipts, regarding payment of amounts. It was denied that any commercial unit was booked by the complainant. It was further stated, that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.3, in its written version, admitted that the complainant applied for the unit, in question, to engage herself, in teaching line, to get some regular income, for which she had planned to start English Speaking Course, Coaching Institute and Career Consultancy course, to earn her livelihood, by way of self employment. It was also admitted that a sum of Rs.10 lacs, as booking amount, was paid by the complainant, to Opposite Party No.3, but the cheque was in the name of Opposite Parties No.1 and 2. It was stated that Opposite Party No.3, received the cheque, and issued receipt Annexure C-1, only in the capacity of a broker. It was also admitted that the Buyer`s Agreement aforesaid, was executed between the complainant and Opposite Parties No.1 and 2. It was further stated that the complainant even did not pay any brokerage to Opposite Party No.3. It was further stated that, if there was any dispute, that was between the complainant and Opposite Parties No.1 and 2. It was further stated, that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. In the rejoinders, filed by the complainant, she reasserted all the averments, contained in her complaint, and repudiated those, contained in the written version of Opposite Parties No.2 and 3.
7. The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.
8. Opposite Party No.2, in support of its case, submitted the affidavit of Hardeep Singh, its Director, by way of evidence, alongwith which, a number of documents were attached.
9. Opposite Party No.3, in support of its case, submitted the affidavit of Sh. Pradeep Bhatheja, its Proprietor, by way of evidence.
10. We have heard the Counsel for the complainant, Opposite Parties No.2 and 3, and, have gone through the evidence and record of the case, carefully.
11. The first question that falls for determination is, as to whether the complaint is barred by time or not. The Buyer`s Agreement was executed between the complainant and Opposite Parties No.1 and 2, in November, 2010, according to which, the possession was to be delivered, in respect of the unit, in question, by November 2011. Neither, the possession of unit, in question, in favour of the complainant, was handed over to her, by the stipulated date, nor was the refund of amount made to her. There was, thus, a continuing cause of action, in favour of the complainant, to file the complaint. In Lata Construction and Ors. Vs. Dr. Rameshchandra Ramniklal Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), the complainant applied for a plot, in the year 1992, on the basis of inducement made in the advertisements of the petitioner, knowing fully well, that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon`ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for Opposite Party No.2, in this regard, being devoid of merit, must fail, and the same stands rejected.
12. The second question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer and the complaint involves the consumer dispute or not. No doubt, the complainant booked a commercial unit, i.e. SF-33, measuring super area 646.76 square feet, Second Floor, Radisson Hotel-cum-Commercial Tower, Zirakpur, with Opposite Parties No.1 and 2, through Opposite Party No.3,. In her complaint, it was stated by the complainant, that she being M.A. B.Ed, having a vast experience of 20 years, in teaching line, wanted to start her own work, to get some regular income, and keeping herself busy, and, as such, planned to start English Speaking Course, Coaching Institute and Career Consultancy Course, to earn her livelihood, by way of self employment. This averment was duly corroborated, by the complainant, through her affidavit. There is nothing, on the record, that the complainant is engaged in any other commercial activity, as a result whereof, she has been earning huge profits. In Haryana Urban Development Authority Vs. Usha Vohra, IV (2009) CPJ 305 (NC), the complainant was allotted a booth in Sector 10, Panchkula, on 15.10.1991, for which she had paid a total consideration of Rs.8,29,354.50, till 31.12.1996. There was no averment, in the complaint, that the same was purchased by the complainant, for earning her livelihood, by way of self employment. The complaint was decided, in favour of the complainant, by the District Forum, directing the Opposite Parties, to refund the excess amount charged. An appeal was preferred, before the State Consumer Disputes Redressal Commission, which was dismissed. Feeling aggrieved, a Revision Petition was filed by the Haryana Urban Development Authority. During the course of Revision Petition, an argument was advanced, that since the complainant was allotted booth, which was obviously for commercial purpose, she did not fall within the definition of a consumer. The National Consumer Disputes Redressal Commission, in the aforesaid case, held that the mere fact that the respondent/complainant, had been allotted a booth, no conclusive finding, could be recorded about the same (booth) having been allotted for commercial consideration, and, not for earning livelihood, as that would require a lot of consideration to unsuit her. In Remington Rand of India Ltd., and Ors. Vs. Pioneer Typewriter Co. I (1996) CPJ 317 (NC), a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, New Delhi, the complainant purchased a Paper Copier Machine for Rs.1,43,000/-, from the Opposite Party, which did not give satisfactory service. No averment, was made, in the complaint, that the Paper Copier Machine, had been purchased by the complainant, for earning livelihood, by way of self employment. Ultimately, the machine became defective, and the complaint for replacement of the same, was filed. The State Consumer Disputes Redressal Commission, decided the complaint, in favour of the complainant. Feeling aggrieved, an appeal was filed by the Opposite Party/appellant, which took up the plea, that the complainant/respondent, did not fall within the definition of a consumer, as the machine was purchased by it, for running the business, on a large scale, for earning huge profits. In these circumstances, the National Consumer Disputes Redressal Commission held that the firm of the complainant, was indeed a small unit, and just because it was a partnership firm, it could not be concluded that it was engaged, in a large scale commercial activity, for earning huge profits. It was further held that since loan was obtained by the complainant/ respondent, from the Bank, for purchasing the machine, which fact, in itself, clearly proved that the complainant was to run a small venture, to earn its livelihood, by way of self employment. In Jindal Oil and Ginning Factory Vs Punjab Small Industries and Export Corporation IV (2008) CPJ 294, a case decided by the Punjab State Consumer Disputes Redressal Commission, Chandigarh, an application for allotment of an industrial plot, was made by the complainant, but no averment was made, in the complaint, by the complainant, that it intended to purchase the same with a view to earn livelihood, by way of self employment. However, the Punjab State Consumer Disputes Redressal Commission, at Chandigarh, held that when the industrial plot was not allotted to the complainant, it sought refund, and, under these circumstances, it fell within the definition of a consumer.
13. As per the explanation appended to clause (ii) of Section 2(d) of the Act commercial purpose does not include use by a person of goods bought and used by him/her, and services availed of by him/her exclusively, for the purpose of earning him/her livelihood, by means of self-employment. It is not the value of the goods, that matters, but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of the Parliament abundantly clear, that the goods bought, must be used, by the buyer himself, by employing himself, for earning his livelihood. A few more illustrations would serve to emphasis that a person who purchases an auto-rickshaw, to ply it, himself, on hire, for earning his livelihood, would be a consumer. Similarly, a purchaser of a truck, who purchases it, for plying it as a public carrier, by himself, would be a consumer. A person, who purchases a lathe machine, or other machine, to operate it himself, for earning his livelihood, would be a consumer. In the above illustrations, if such a buyer, takes the assistance of one or two persons, to assist/help him, in operating the vehicle or machinery, he does not cease to be a consumer. As against this, a person who purchases an auto-rickshaw, a car or a lathe machine, or other machine, to be plied or operated exclusively by another person, would not be a consumer. This is the necessary limitation, flowing from the expressions "used by him", and "by means of self-employment" in the explanation. Similar principle of law, was laid down, in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC). The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. It is, therefore, held that the complainant falls within the definition of a consumer, and the complaint involves the consumer dispute, as she hired the services of Opposite Parties No.1 and 2, through Opposite Party No.3, for the purchase of aforesaid unit.
14. The third question, that falls for consideration, is, as to whether, this Commission, has got territorial Jurisdiction, to entertain and decide this complaint or not. Buyer`s Agreement Annexure C-5, was executed between the complainant and M/s Kwality Colonisers Pvt. Ltd., Opposite Party No.1, a Company registered under the Companies Act, 1956, having its Registered Office at 2206, Sector 22-C, Chandigarh. Not only this, the booking amount of Rs.10,00,000/-, by the Proprietor of Opposite Party No.3, on behalf of Opposite Parties No.1 and 2, was also received at Chandigarh. Since, the Registered Office of Opposite Parties No.1 and 2, as is evident, from Annexure C-5, Buyer`s Agreement, is situated at 2206, Sector 22-C, Chandigarh, and the booking amount of Rs.10 lacs was received by Opposite Party No.3, on behalf of Opposite Parties No.1 and 2 at Chandigarh, a part of cause of action, thus, arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. Not only this, it is evident, from Clause 45 of the Buyers Agreement Annexure C-5, that the parties agreed that the Punjab and Haryana High Court at Chandigarh, shall have the Jurisdiction, in all matters arising out of, touching and/or concerning the transaction. Even, according to the complainant, all payments towards the part price of the unit were made at Chandigarh. Under these circumstances, this Commission has got territorial Jurisdiction, to entrain and decide the complaint. The objection taken by the Counsel for Opposite Party No.2, in this regard, being devoid of merit, stands rejected.
15. The fourth question, that falls for consideration, is, as to by which date, the possession of commercial unit, booked by the complainant, was to be handed over to her. Annexure C-2, is the document, which was signed by the Proprietor of Opposite Party No.3, on behalf of Opposite Parties No.1 and 2. It is evident, from this document that 10% of the price of unit, in question, was to be paid by the complainant, at the time delivery of possession, by 10th November, 2011. Admittedly, the possession was not delivered by November 2011, in favour of the complainant. There was no development, at the site, as is proved from the evidence, on record, even till the date of filing the complaint, on 18.02.2014. By making a promise, that possession of the unit, in question, shall be delivered by November, 2011, and not abiding by the same, Opposite Parties No.1 and 2, the complainant was deprived, of her hard money, to the tune of Rs.24,74,438/-. Opposite Parties No.1 and 2, misled the complainant, by making a false promise, with regard to the stipulated date of delivery of possession of the unit, in question, and thus they were guilty of indulgence into unfair trade practice. It is, therefore, held that the complainant was entitled to possession by 10.11.2011.
16. The fifth question, that falls for consideration, is, as to how much amount, towards the price of unit, in question, was deposited by the complainant. The total price of the unit, in question, as is evident, from Annexure C-2 was Rs.35,24,842/-. 90% of the aforesaid amount was to be paid by 10th November, 2010. It is evident, from Annexure C-1, that a sum of Rs.10 lacs, as booking amount was paid by the complainant, to the Proprietor of Opposite Party No.3, broker of Opposite Parties No.1 and 2, through cheque No.000003 dated 04.10.2010. It is further evident, from Annexure C-3, that an amount of Rs.14,74,438/- i.e. Rs.3,74,438/-, vide cheque No.000009 dated 04.11.2010, and Rs.11,00,000/-, in cash, was paid by the complainant, on the said date (04.11.2010), to Opposite Party No.1. Copy of receipt Annexure C-3, bears the signatures of Harpreet Singh, Director of Opposite Party No.1, in photo-impression. A sum of Rs.6,97,920/-, being return @11% P.A., for two years, as per Clause 4 of the Buyer`s Agreement, was credited to the account of the complainant, towards the price of unit. In this manner, the complainant paid a sum of Rs.31,72,358/-, towards part price of the unit, including a sum of Rs.6,97,920/-, which was credited to her account, being return @ 11% P.A., for two years. 10% amount, to the tune of Rs.3,52,484/-, towards the price of the unit was to be paid, at the time of delivery of possession, on 10th November 2011. However, the possession was never delivered. By not refunding the amount of Rs.24,74,438/- and Rs.6,97,920/-, Opposite Parties No.1 and 2 were deficient, in rendering service.
17. The sixth question, that falls for consideration, is, as to whether, the receipts Annexures C-1, C-2 and C-3 are forged and fabricated documents. According to Opposite Party No.2, these receipts were fabricated by the complainant, in connivance with Opposite Parties No.1 and 3. No evidence was produced, on record, to prove that these receipts were fabricated documents. The mere fact that Opposite Party No.2 has already got registered a criminal case, vide FIR No.70, at Police Station, Sector 17, Chandigarh, under Sections 420/467/468/471 and 120B, of the Indian Penal Code, against the Director of Opposite Party No.1, did not mean that these receipts were forged/fabricated, in any manner. Even otherwise, mere lodging of FIR or the pendency of criminal complaint/case, does not debar the Consumer Foras to decide the Consumer Dispute, relating to the same subject matter. In the absence of any cogent and convincing evidence, having been produced by Opposite Party No.2, by no stretch of imagination, it could be said that the documents aforesaid were forged and fabricated. If there is any dispute, between Opposite Parties No.1 and 2, the third party, i.e. the complainant cannot suffer for the same. The complainant is entitled to the refund of amount of Rs.31,72,358/-.
18. The seventh question, that falls for consideration, is, as to whether, the complainant is entitled to interest, if so, at what rate, from which date, and on what amount. As per the admission of the complainant, a sum of Rs.6,97,920/-, being return @11% P.A., for two years, at the time of execution of the Buyer`s Agreement, was adjusted towards the price of unit. It means that, an amount of Rs.24,74,438/-, was actually paid by the complainant, to Opposite Parties No.1 and 2. Opposite Party No.1 and 2 utilized the hard money of the complainant, for a long time. Had the amount been returned to her, in time, she would have earned handsome return thereon, by depositing the same, in some bank. It means that, upto 30 November 2012 i.e. for two years, an amount of Rs.6,97,920/-, as return, by way of interest @11% P.A, as per Clause 4 of the Buyer`s Agreement was adjusted in the account of the complainant, towards the price of unit. The complainant is therefore, entitled to interest @11% P.A, on the amount of Rs.24,74,438/-, from 01.12.2012, till realization.
19. The eighth question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, on account of mental agony and physical harassment. The complainant, underwent a lot of mental agony and physical harassment, on account of non-delivery of possession of the unit, in question, to her, by the stipulated date, or refund of the amount deposited by her, for a sufficient longer period. One can really imagine the mental condition of a person, like the complainant, who had deposited the huge amount of Rs.24,74,438/-, for the purchase of unit, in question, but was neither delivered possession thereof, by the stipulated date, i.e. November 2011, nor till the date of filing complaint, nor refund of the amount was made to her. Tremendous mental agony and physical harassment, was undergone by the complainant, on account of this reason, for which, she is entitled to compensation, in the sum of Rs.1 lac.
20. The ninth question, that falls for consideration, is, as to what was the effect of public notice, Annexure OP-2/3, which was issued by Opposite Party No.2. It may be stated here, that the amount, in question, for the purchase of unit, in question, was deposited by the complainant, in the year 2010. This public notice was given, in the newspaper, in the year 2012. Under these circumstances, this public notice given by Opposite Party No.2, with regard to the transactions, which had already taken place, between the consumers and Opposite Party No.1, did not have any effect. If, after the publication of this public notice, any transaction between the consumers and Opposite Party No.1, had taken place, the matter would have been different. Under these circumstances, no help can be drawn by the Counsel for Opposite Party No.2, from the public notice, Annexure OP-2/3, so far as the transaction, in the present case is concerned.
21. So far as the liability of Opposite Party No.3, is concerned, it has got no concern, with deficiency, in rendering service, or indulgence into unfair trade practice, on behalf of Opposite Parties No.1 and 2. It was only the broker of Opposite Parties No.1 and 2, through which the unit was booked by the complainant. Opposite Party No.3 was neither to allot the unit, nor to deliver possession thereof, nor to refund the amount deposited, by the complainant. Since, Opposite Party No.3 was neither deficient, in rendering service, nor indulged into unfair trade practice, the complaint against it deserves to be dismissed.
22. For the reasons, recorded above, the complaint is partly accepted, with costs. Opposite Parties No.1 and 2, are jointly and severally directed as under:-
(i). To pay a sum of Rs.24,74,438/-, with interest @11% per annum, to the complainant, from 01.12.2012, till realization.
(ii). To pay a sum of Rs.6,97,920/-, being return @11% P.A., for two years, as per Clause 4 of the Buyer`s Agreement.
(iii). To pay a sum of Rs.1 lac, as compensation, for causing mental agony and physical harassment, to the complainant.
(iv). To pay a sum of Rs.20,000/-, as cost of litigation.
(v). The amounts mentioned in Clauses (i), (ii) and (iii), shall be paid by Opposite Parties No.1 and 2, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which the amount, mentioned in Clause (i) shall carry interest @12% P.A., from 01.12.2012, till realization, whereas, the amounts mentioned in Clause (ii) and (iii), shall carry interest @12% P.A., from the date of default, till realization, besides payment of cost of Rs.20,000/-
23. However, the complaint against Opposite Party No.3 is dismissed, with no order as to costs.
24. Certified Copies of this order be sent to the parties, free of charge.
25. The file be consigned to Record Room, after completion.