Jasleen Kaur Kochhar Vs. M/S. Chandigarh Overseas Private Ltd. Through Its Chairman and Another - Court Judgment

Excerpt:
padma pandey, member: 1. in brief, the facts of the case are that, being lured by the reputation of opposite party no.1, the complainant booked two units of design studio, on the assurance that the same would be delivered in the first half of the year 2009. the complainant was offered a 250 sq. feet (125 sq. feet each) of super area in design studio no.10 at 6th floor in block a-1, in the industrial knowledge (fashion technology) park sector 90, mohali for a sale consideration of rs.10,00,000/- (rs.5 lacs each) vide annexure c-1. on 11.01.2007, a developer buyer agreement, annexure c-2, was entered into between the complainant and opposite party no.1, at chandigarh. it was stated that as per clause 8 of the said agreement, the construction of the design studios was to be completed and the.....

Judgment:

Padma Pandey, Member:

1. In brief, the facts of the case are that, being lured by the reputation of Opposite Party No.1, the complainant booked two units of Design Studio, on the assurance that the same would be delivered in the first half of the year 2009. The complainant was offered a 250 sq. feet (125 sq. feet each) of super area in Design Studio No.10 at 6th Floor in Block A-1, in the Industrial Knowledge (Fashion Technology) Park Sector 90, Mohali for a sale consideration of Rs.10,00,000/- (Rs.5 lacs each) vide Annexure C-1. On 11.01.2007, a Developer Buyer Agreement, Annexure C-2, was entered into between the complainant and Opposite Party No.1, at Chandigarh. It was stated that as per Clause 8 of the said agreement, the construction of the design studios was to be completed and the possession was to be delivered within 30 months from the start of construction. As per Clause 28, the developer i.e. Opposite Party No.1, was to compensate the complainant for delay beyond 30 months on payment of Rs.50/- per sq. feet per month. The complainant paid Rs.9,50,000/- as per the payment schedule vide receipts Annexure C-3 (Colly.).

2. It was further stated that vide letter dated 22.06.09 (Annexure C-4), Opposite Party No.1 informed that the construction started on 19.07.07 and the same was in full swing and possession of the studios would be given between 30.06.2010 to 30.09.2010. It was further stated that a lease agreement dated 11.01.2007, Annexure C-6, was entered into between the complainant and Opposite Party No.2, according to which, Opposite Party No.2 was either to use the said premises for its own use, or sublet the same and as per Clause 4, it had to give an assured rental to the complainant of a minimum of Rs.30,000/- p.a., per unit, and a maximum of Rs.45000/- p.a. per unit.

3. According to the complainant, neither the possession within the stipulated time was delivered nor the compensation, as per Clause 28 of the agreement, was paid to her. It was further stated that Opposite Party No.2, did not pay the assured lease rental, as per the lease agreement, which was due to be paid per month, as soon as 30 months stood completed i.e. January 2010. It was further stated that vide letter 22.09.2009 (Annexure C-8), Opposite Party No.2, offered to buy back the premises, from the complainant. However, the complainant being interested in the project, did not opt for the same at that point of time. Thereafter, the complainant served a legal notice, Annexure C-9 and consequent thereto, she was again offered a buy back option, which she opted vide letter dated 17.08.2013, Annexure C-10.

4. It was further stated that the aforesaid acts on the part 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 as under:-

 

i)	OP No.1 be directed to refund to the complainant the money and advances paid alongwith interest @ 18% p.a. from the date of payment.	Rs.9,50,000/- +18% interest p.a.
ii)	Amount as per clause 28 of the developer buyer agreement alongwith interest @ 18% p.a.(Rs.12,500/- @ Rs.50 per sq. feet multiplied by no. of months beyond 30 months i.e. 48 months till January, 2014).	Rs.6,00,000/- (Rs.12,500x48)+18% interest p.a.
iii)	OP No.2 be directed to pay the Assured Lease Rentals alongwith interest @ 18% p.a.	Rs.21,60,000/-(Rs.45,000x48)+ 18%interst p.a.
iv)	Cost of litigation	Rs.50000/-
v)	Cost of mental harassment and agony	Rs.5,00,000/-
vi)	Compensation under any other heads	Any other amount which this Honble Court may deem fit and proper.
	Total:	Rs.42,60,000/-+ 18% interest p.a.

5. The Opposite Parties, were duly served, but they failed to appear, hence they were proceeded against exparte vide order dated 06.03.2014.

6. The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.

7. We have heard the Counsel for the complainant, and have gone through the evidence and record of the case, carefully.

8. The first question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer or not. The complainant wanted to buy the aforesaid Design Studios for earning her livelihood by way of self employment. The area of two Design Studios is 250 sq. ft. (125 sq. ft each), which meant that they are two small units, in which the complainant could not run any commercial activity on a large scale and, as such, by no stretch of imagination, it could be said that she did not fall within the definition of a consumer. There is nothing, on the record, that the complainant was engaged, in any other commercial activity, as a result whereof, she was 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 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.

9. 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 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 emphasize 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. As stated above, the small size of the units (design studios) and the moderate amount, for which the same were purchased, in itself, was sufficient to prove, that the services of Opposite Party No.1 were availed of by the complainant, to earn livelihood, by way of self employment. In our considered opinion, the complainant fell within the definition of a consumer.

10. The next question, that falls for determination, as to by which date the possession of the design studios was to be delivered. According to the complainant, the possession of the design studios, in question, was to be delivered by 18.01.2010 as per letter dated 22.06.2009, Annexure C-4 issued by Opposite Party No.1 failing which it would honour the Buyer Developer Agreement and would compensate the complainant, vide Clause No.28 for period beyond 18.01.2010. Admittedly, the possession of the design studios in question was not delivered to the complainant despite the lapse of a period of more than 4 years beyond 18.01.2010. Opposite Party No.1, thus, made a false representation of delivering the possession of Design Studios by 18.01.2010, but it failed to abide by such a promise and, thus, it was not only deficient in rendering service but also indulged into unfair trade practice.

11. The next question, that falls for consideration, is, as to whether, the complainant is entitled to damage/charges @Rs.50/- per square feet, per month, as per Clause 28 of the Developer Buyer Agreement dated 11.01.2007, Annexure C-2. Clause 28 of the said Agreement Annexure C-3 reads as under:-

œThe Buyer(s) agree that sale of unit(s) is subject to force majeure clause/ natural calamity which inter alia include delay on account of non availability of steel and/or other building materials, or water supply or electric power or slow down strike or due to a dispute with construction agency employed by the Developer like strike, slow down, lockout, disobedience, natural calamities, civil commotion, militant action, war/threat of war, legal orders or by reasons beyond the control of the Developer and in any of the aforesaid events, the Developer shall be entitled to a reasonable corresponding extension of the time limit for the delivery of possession of the said unit as per the schedule earlier agreed / intimated on account of force majeure circumstances. The Developer as a result of such contingency arising, reserves the right to alter or vary the term and condition of allotment or if the circumstances beyond the control of the Developer so warrant the Developer may suspend the scheme for such period as it may consider expedient and no compensation of any nature whatever can be claimed by the Buyer(s) for the period of delay/suspension of scheme. In consequence of the Developer abandoning the scheme, the Developer liability shall be limited to the refund of the agreement already paid by the Buyer(s) without any interest or compensation whatsoever minus the services availed by the Buyer(s) in whatsoever manner it may be. However if there is a delay in handing over the possession of the unit(s) i.e beyond 30 month from the date of start of the construction, except for the reasons mentioned above, the Developer shall compensate the Buyer(s) by paying him Rs.50 per square feet per month of the super area of the unit(s) as compensation. This compensation amount shall be deposited by the Developer in the Corpus Fund which will be opened and maintained for the maintenance, security and upkeep of the Design Studio and surroundings?.

12. According to Clause 28 afore-extracted, the date of completion of the said design studios was 18.01.2010, and if Opposite Party No.1 was not able to hand over possession of the same, by the due date, then it was liable to pay damage/charges @ Rs.50/- square feet per month of the super area. The complainant was not delivered possession of the design studios by the stipulated date i.e. 18.01.2010. The complainant, is, thus, entitled to damage charges @Rs.50/- square feet per month of the super area, from 19.01.2010 onwards.

13. Since the Opposite Party No.1 failed to deliver possession of the design studios, in question, to the complainant by even 4 years beyond the stipulated date, she(complainant) is held entitled to compensation on account of mental agony and physical harassment, which is quantified at Rs.50,000/-.

14. The complainant has also claimed the minimum lease rent of Rs.30,000/- p.a. per unit and a maximum of Rs.45000/- per unit as per Clause 4.1 of the lease agreement alongwith interest. The relevant part of Clause 4.1 of the lease agreement reads as under :-

œ4.1. Under this contract, the Lessor would be entitled to a Assured Lease Rentals of minimum of Rs.30,000/- per annum per unit (net of taxes/expenses) subject to a maximum of Rs.45,000/- p.a. per unit depending upon the actual net lease rent (nett of taxes/expenses) collected by the lessee from the sub-lessee. The lease rent shall be paid on monthly basis by way of Account payee cheques. The lease rent shall be payable immediately after the possession is handed over to the Lessee subject to the compliance of other terms and conditions of this agreement.?

Since the possession of the said design studios was not handed over on the due date i.e. 18.01.2010 and in view of the fact that the complainant has already been compensated as per Clause 28 of the Developer Buyers Agreement, she is not entitled to lease rentals as prayed for.

15. For the reasons recorded above, the complaint is partly accepted, with costs, directing Opposite Party No.1, as under:-

i) Pay to the complainant, a sum of Rs.9,50,000/- deposited vide Annexure C-3 (Colly.).

ii)   Pay to the complainant, compensation/damage charges @Rs.50/- square feet per month of the super area of the units, from 19.01.2010 onwards, as per Clause 28 of the Developer Buyer Agreement dated 11.01.2007, Annexure C-2.

iii)  Pay to the complainant, Rs.50,000/- towards mental agony and physical harassment.

iv)  Pay to the complainant, cost of litigation, to the tune of Rs.10,000/-

v) The amounts mentioned in Clauses (i) to (iii) shall be paid, within a period of 60 days, from the date of receipt of a certified copy of this order, failing which the same shall carry interest @9% P.A., from the date of default, till realization, besides payment of costs, to the tune of Rs.10,000/-.

16. Complaint against Opposite Party No.2 is dismissed with no order as to costs.

17. Certified Copies of this order be sent to the parties, free of charge.

18. The file be consigned to Record Room, after completion.