STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Sh. Karnail Singh, S/o Late Sh.Inder Singh, resident of House No.2857/1, Sector 49-D, Chandigarh.

2. Harmeek Singh, S/o Sh. Karnail Singh, resident of House No.2857/1, Sector 49-D, Chandigarh. ……Complainants

V e r s u s

M/s Emaar MGF Land Limited, through its Managing Directors/Directors, SCO 120-122, First Floor, Sector 17-C, Chandigarh.

.... Opposite Party

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER

Argued by: Sh. Lakhbir Singh, Advocate for the complainants. Sh. Sanjeev Sharma, Advocate for the Opposite Party.

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

The facts, in brief, are that the families of the complainants had been living in the Low Income Group (LIG) flat, owned by them, in Sector 29, Chandigarh, till 2010. It was stated that since the complainants were having a very big family, as such, they felt acute shortage of space, in the said LIG flat. As such, they decided to live separately, by purchasing two separate houses, in close vicinity. The complainants sold their LIG flat aforesaid. It was further stated that allured by the assurances of the

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representative of the Opposite Party, with regard to the salient features, like 100 ft wide road connected with Chandigarh, high security, black-topped wide internal roads, drainage, sewerage, 24 hours water and electricity supply, street lighting, green belts, shopping complex etc. etc., in its (Opposite Party), project, under the name and style of "Mohali Plots at Mohali Hills", Sector 104, Mohali, Punjab, the complainants booked two plots i.e.104-EP-94-250 for complainant No.1 and 99-EP-22-190 for complainant No.2, in the said project. It was further stated that since the possession of plot No.104-EP-94-250 had not been delivered to complainant No.1, as such, he had filed consumer complaint no.5 of 2014, before this Commission, on 20.01.2014, which was accepted vide order dated 09.04.2014, wherein refund of the amount deposited alongwith compensation and litigation cost was awarded.

2. It was further stated that, however, the possession of plot No.99-EP-22-190 had not been delivered to the complainants till date. It was further stated that the complainants had applied to the Opposite Party, for the allotment of a residential plot (No.99-EP-22-190), and paid a sum of Rs.5 lacs, as booking amount, vide cheque No.942673 dated 26.03.2011. Receipt dated 02.04.2011 Annexure C-9, in this regard, was issued by it (Opposite Party). Vide Provisional Allotment Letter, the complainants were allotted plot no.99-EP-22-190, in "Mohali Plots at Mohali Hills, Mohali", @Rs.25,000/- per square yard. The basic price of the said plot was to the tune of Rs.46,78,750/-. Apart from this amount, the complainants were also required to pay a sum of Rs.5,93,750/-, towards Preferential Location Charges (PLC) plus (+) Rs.3,44,090/- towards External Development Charges (EDC). Thus, the total sale consideration, in the sum of Rs.56,16,590/-, was required to be paid by the complainants, towards plot no.99-EP-22-190.

3. It was further stated that by October, 2011, the total amount of Rs.22,46,404/- had already been paid by the complainants, to the Opposite Party, towards the part price of plot no.99-EP-22-190, but the Plot Buyer's Agreement, in respect thereof was still not executed by it. Ultimately, on 02.11.2011, the Opposite Party sent a copy of the Plot Buyer's Agreement, in respect of plot no.99-EP-22-190, with a direction to return the same, after signing it, within 30 days, from the date of receipt thereof. It was further stated that, on going through the terms and conditions of the Plot Buyer's Agreement, the complainants were shocked to see that the same were favourable to the Opposite Party only, and their (complainants) rights had been totally ignored. It was further stated that the complainants had no option than to sign the said Plot Buyer's Agreement, so as to avoid cancellation of the plot, and forfeiture of 15% of the total sale consideration thereof. Accordingly, on 22.11.2011, the complainants, signed the Plot Buyer's Agreement, and sent the same to the Opposite Party. It was further stated that, in this manner, the Plot Buyer's Agreement was executed between the parties.

4. It was further stated that, as per Clause 8 of the Plot Buyer's Agreement dated 22.11.2011, Annexure C-13, subject to force majeure conditions, and reasons beyond the control of the Company, physical possession of the fully developed residential plot, was to be handed over to the complainants, within a period of 12 (twelve months), but not later than 18 months, from the date of execution thereof (Agreement). It was further mentioned, in the said Agreement, that, in case of delay, in handing over possession of the fully developed plot, within 18 (eighteen) months, the Opposite Party was liable to pay compensation/penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay, from the date of execution thereof. Thus, the Opposite Party was required to deliver physical possession of plot no.99-EP-22-190, to the complainants by 21.05.2013. It was further stated that possession of plot no.99-EP-22-190 was not delivered to the complainants by the stipulated date i.e.

21.05.2013.

5. It was further stated that, on the other hand, the complainants had already paid an amount of Rs.54,25,830/- towards part price of plot no.99-EP-22-190. It was further stated that vide letter dated 04.02.2014 Annexure C-18, the Opposite Party sent an intimation of possession, to the complainants. It was further stated that vide letter dated 04.02.2014 Annexure C-18, the Opposite Party also raised an illegal demand of amounts, under various heads. It was further stated the even club membership charges were arbitrarily and illegally levied by the Opposite Party, which were optional. It was further stated that after receiving the said letter dated 04.02.2014 Annexure C-18, the complainants visited the site, and found that there was no development, in the area, in which plot no.99-EP-22-190 was allotted. It was further stated that even the basic amenities were not complete at the site.

6. It was further stated the complainants made a number of oral, as well as written requests, to the

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Opposite Party, to deliver legal physical possession of the plot, in question, complete in all respects, but it failed to do so. It was further stated that even letters dated 27.05.2014, 12.06.2014 and 22.07.2014, through registered post, were sent to the Opposite Party, in the matter, but to no avail.

7. It was further stated that the huge amount of Rs.56,04,768/- deposited by the complainants, i.e. about 95% of the price of plot no.99-EP-22-190, was utilized by the Opposite Party, as a result whereof, they (complainants) were caused financial loss. It was further stated that since the Opposite Party had not delivered the legal physical possession of plot no.99-EP-22-190, in favour of the complainants, they were not able to construct house thereon, and reside therein, as a result whereof, for the last three years, they had been staying in a rented accommodation, for which they were paying monthly rent, thereby causing unnecessary financial burden upon them. It was further stated that besides that, the complainants underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the fully developed plot no.99-EP-22-190, to them, and also suffered further financial loss, on account of non-payment of compensation, as per Clause 8 of the Agreement, referred to above, for the period of delay, or by not refunding the amount, deposited by them.

8. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into 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, directing the Opposite Party, to refund the amount of Rs.56,04,768/- alongwith interest @24% P.A., from the respective dates of deposits, till realization; or in the alternative to deliver physical possession of plot no.99-EP-22-190, complete in all respects; pay/reimburse the amount of rent, paid by them, to the landlords; compensation, in the sum of Rs.15 lacs, for mental agony, physical harassment and deficiency, in rendering service; and cost of litigation, to the tune of Rs.33,000/-, alongwith interest @24% P.A.

9. The Opposite Party was served and put in appearance on 09.02.2015. In its written version, the Opposite Party pleaded that the complainants did not fall within the definition of consumers, as defined under Section 2(1)(d) (i) of the Act, as they had jointly purchased another plot No.104-EP-94- 250, in the same project, consumer complaint bearing No.05 of 2014, in respect whereof filed by them, had already been decided in their favour, by this Commission, vide order dated 09.04.2014. It was further pleaded that, as such, plot no.99-EP-22-190, had been purchased by the complainants, just with a view to resell the same, as and when there was escalation in prices of the real estate, meaning thereby that they purchased the same (plot no.99-EP-22-190), solely for speculation and investment purposes, and not for their self-use and occupation. It was further pleaded that this Commission, has got no territorial and pecuniary Jurisdiction, to entertain and decide the complaint. It was further pleaded that the application for seeking permission, to file the instant consumer complaint jointly, was not filed by the complainants. It was stated that the consumer complaint was also not maintainable, as earlier also, the complainants had filed consumer complaint No.28 of 2014, on the same cause of action, in respect of plot no.99-EP-22-190, yet the same was dismissed, as withdrawn, by this Commission, vide order dated 26.05.2014, with liberty to resort to any other legal remedy available to them, as per law. The factum of provisional allotment of plot No.99-EP-22-190, and the issuance of provisional allotment letter dated 12.04.2011 Annexure C-10, in favour of the complainants was admitted. It was also admitted that the complainants made payment of Rs.56,04,768/-, towards the part price of residential plot no.99-EP-22-190. Execution of the Plot Buyer's Agreement dated 22.11.2011, Annexure C-13, between the parties was also admitted. It was also admitted that there was some delay, on the part of the Opposite Party, in execution of the said Agreement. It was further stated that, no doubt, as per the Plot Buyer's Agreement dated 22.11.2011, Annexure C-13, subject to force majeure conditions, and the reasons beyond the control of the Company, physical possession of the fully developed residential plot, was to be handed over to the complainants, within a period of 12 months, but not later than 18 months, from the date of execution thereof (Agreement), yet, at the same time, it was also mentioned therein, that, in case of delay, the Opposite Party, was liable to pay compensation/ penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay. It was further stated that since the parties were bound by the terms and conditions of the Plot Buyer's Agreement dated 22.11.2011, Annexure C-13, neither they could go beyond the same, nor

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any relief, contrary to the same (Agreement), could be granted to the complainants. It was further stated that the complainants made default, in making payment of installments, and reminders were issued to them, to deposit the same, as and when, the same fell due. It was further stated that interest on delayed payments, which were due to be made by the complainants, was waived off, by the Opposite Party, as an exceptional case, under special approval. It was further stated that it was well within the knowledge of the complainants that for any delays, stipulated penalty had been provided in the Plot Buyer's Agreement dated 22.11.2011, Annexure C-13, which safeguarded their rights. It was further stated that, no doubt, there was some delay, in the offer of possession of the unit, in question, yet, when the same was given to the complainants, vide letter dated 04.02.2014 Annexure C-18, they did not come forward to accept the same, for the reasons, best known to them, and kept on sending vague letters to the Opposite Party, on the ground, that the demands made therein were illegal and arbitrary. It was further stated that the amount demanded by the Opposite Parties, vide letter dated 04.02.2014 Annexure C-18, before taking over possession of plot no.99-EP-22-190, was legally due against the complainants. It was further stated that since the possession had already been offered to the complainants, the amenities were complete, at the site, in terms of the Agreement, and, in case, they (complainants) still wanted refund, the same would amount to surrender of the unit, and attract forfeiture charges, as per Clause 2 (f) of the same (Plot Buyer's Agreement) i.e. 15% of its sale price. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

10. In the rejoinder/replication, filed by the complainants, they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.

11. Complainant No.1, in support of the averments, contained in the complaint, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.

12. The Opposite Party, in support of its case, submitted the affidavit of Mr.Sachin Kapoor, its Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached.

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

14. The core question, that falls for consideration, is, as to whether, the complainants fall within the definition of consumers or not? For proper decision of this question, the provisions of Section 2(1)(d) and 2(I)(o), defining the 'consumer' and 'service' respectively are extracted as under:-

"(d) "Consumer" means any person who, -

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other then the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]; Added by Act 62 of 2002 w.e.f. 15.03.2003.

[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood, by means of self-employment;] Section 2(1)(o) defines service as under:-

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(o) "service" means service of any description which is made available to potential 16[users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17 [housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

15. Admittedly, vide Provisional Allotment Letter, the complainants were allotted plot no.99-EP-22- 190, in "Mohali Plots at Mohali Hills, Mohali", @Rs.25,000/- per square yard, the total sale consideration, in the sum of Rs.56,16,590/-, whereof was required to be paid by them. It is also evident from Annexure C-14, copy of the Plot Buyer's Agreement dated 22.11.2011, at page 115 of the file, that the complainants were also allotted plot no.104-EP-94-250, approximately measuring 250 square yards, in the same project of the Opposite Parties. Since the possession of plot No. 104-EP-94- 250 was also not delivered to the complainants, as such, they had filed consumer complaint no.5 of 2014, before this Commission, on 20.01.2014, which was accepted vide order dated 09.04.2014, wherein refund of the amount deposited alongwith compensation and litigation cost was awarded to them. This fact has been candidly admitted by the complainants, in the instant complaint. It may be stated here, that for the first time, the complainants made a mention, in the instant complaint that two properties were purchased by them, in the project of the Opposite Party. Not even a fleeting reference, had been made by the complainants, in the consumer complaint bearing no.5 of 2014, earlier filed before this Commission, on 20.01.2014, which was accepted vide order dated 09.04.2014, in the manner, referred to above, that they had also purchased plot no.99-EP-22-190. Nothing has been made clear, by the complainants, as to for what purpose, they purchased two plots, in the project of the Opposite Party. Thus, the plea raised by the Counsel for the complainants, during the course of arguments, did not establish that the two units purchased by the complainants, were for the purpose of their residence and the residence of their family members. Not only this, earlier also, the complainants had filed consumer complaint No.28 of 2014, before this Commission, on the same cause of action, in respect of plot no.99-EP-22-190, yet the same was dismissed, as withdrawn, by this Commission, vide order dated 26.05.2014, with liberty to resort to any other legal remedy available to them, as per law. Thus, it is established that the complainants purchased the unit, in question, in the project of the Opposite Party, at Mohali, for commercial purpose i.e. for investment, to sell the same, in the market, as and when there was escalation in prices of the real estate. The complainants, thus, availed of the services of the Opposite Party, for commercial purpose, to earn huge profits. In Smt. Madhu Saigal and another Vs. M/s Omaxe Buildhome Pvt. Ltd. and another, Consumer Complaint No.270 of 2013, decided on 20.03.2014, by the National Consumer Disputes Redressal Commission, New Delhi, two senior citizens, namely Smt. Madhu Saigal, aged 73 years and Mr. Ashok Saigal, aged about 76 years, husband and wife, invested their life savings, to the tune of over Rs.2 crores, for the purchase of two apartments, in a project, in the hope of spending their retirement life, with their son, Sh. Amit Saigal. In those circumstances, the National Consumer Disputes Redressal Commission, New Delhi, held that two apartments were purchased by the husband and wife, by way of investment, i.e. for commercial purpose, and they did not fall within the definition of consumers, and the consumer complaint was not maintainable. Not only this, in Jag Mohan Chhabra & Anr Vs. DLF Universal Ltd., IV (2007) CPJ 199 (NC), a somewhat similar case, it was held by the National Commission, that the consumer, who purchases more than one flat, does not fall within the definition of a consumer, and it could be said that the same were purchased by him/her, for commercial purpose. Civil Appeal No.6030-6031 of 2008 was filed against the decision of the National Commission, in Jag Mohan Chhabra's case (supra), which was dismissed by the Apex Court, vide order dated 29.09.2008. Similar view was taken by the National Commission, in Saavi Gupta and another Vs. M/s Omaxe Azorim Developers Pvt. Ltd., Consumer Complaint No.208 of 2012 decided on 01.10.2012 and Chilukuri Adarsh Vs. ESS ESS VEE Constructions, III (2012) CPJ 315 (NC). In this view of the matter, it is held that the complainants do not fall within the definition of consumers, and, as such, the consumer complaint is not maintainable.

16. For the reasons recorded above, the complaint is dismissed, being not maintainable, as the complainants are not held to be consumers, under the Act, with no order as to costs.

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17. The complainants shall, however, be at liberty to resort to any other legal remedy, which may be available to them, for redressal of their grievance.

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

19. The file be consigned to Record Room, after completion. Pronounced.

April 1, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[DEV RAJ]

MEMBER

Sd/-

(PADMA PANDEY)

MEMBER

Rg.

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