(Dharam Pal, President) By this order we propose to dispose of the above mentioned two similar consumer complaints in which common questions of law and facts are involved. The facts are taken out from Consumer Complaint No. 71 of 2016 titled as Smt Savita Jyani and Another Vs. M/s Suncity Project & Others. Complainants Smt Savita Jyani (mother) and Tushar Jyani (son) have filed this complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops alleging that they applied for a commercial site No.314-B vide application No.SBC/314-B for their self employment & earning livelihood and deposited an earnest money of Rs.4,62,000/- through cheque in the name of Op No.1 and also an amount of Rs.2,88,750/- through cheque in the name of OP No.2 but the agreement was never executed between the parties. The complainant requested the Op No.2 many times for execution of the agreement but to no avail. Thereafter, the Op No.1 vide their letter dated 03.08.2015 informed the complainant that due to certain circumstances, their association with the land owner i.e. Krishang Builtech Pvt. Ltd. had been terminated and the Op No.1 has no more part with the project and the same had been taken over by Krishang Builtech Pvt. Ltd. itself. If the complainants wished to continue with the booking, the invested money should be transferred to Krishang Builtech Pvt. Ltd. who should develop the unit and handover the unit as per terms and conditions of the allotment. They further informed that if the complainant did not wish to continue with the booking, the invested money should be refunded by the Op No.1 within 30 days from the receipt of the request without any interest. The complainants issued legal notice requesting the Op No.1 and 3 to refund the invested amount alongwith interest for not abiding by the terms & conditions of the original allotment but to no avail. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint. The OPs No.1 and 3 appeared before this Forum and filed written statement by taking some preliminary objections & submitted that the complainants are not consumers as they applied for the commercial unit for purposes of earning livelihood by means of self employment. It is submitted that the Honble Forum has no territorial jurisdiction to entertain the present complaint as the complainants submitted their application to Suncity Project Pvt. Ltd., Connaught Place, New Delhi. It is submitted that the cheque was also payable by the complainant at New Delhi and all receipts were issued from New Delhi. It is submitted that all letters were sent from Delhi/Gurgaon and the notice/letter dated 31.08.2015 also sent by the complainant to Gurgaon and the site is located at Zirakpur. It is submitted that some manager situated at Panchkula could not confer jurisdiction to this Honble Forum. It is submitted that the Ops were developing an entirely separate/independent residential project at Panchkula under the name of Parikarma which has no relation or concern with the project at Zirakpur. It is submitted that the OP has offered to refund the amount deposited by the complainants or alternatively to keep the same invested with the new developer. It is submitted that the Op No.3 has no role in the present case. At the time of booking, only 1,00,000/- were paid by the complainants and thereafter, payment of Rs.1,50,000/-, Rs.1,12,000/- and Rs.1,00,000/- were made by the complainants and receipts were also issued by the Ops to the complainants. It is denied that OP No.2 is authorized agent of Op No.1. OP No.1 and 2 were operated on principal to principal basis and no authority was ever given to Op No.2. It is submitted that the unit was only booked for provisional allotment of site No.314-B in accordance with the terms agreed by the complainants. In terms of clause 7 of the application form, agreement was to be executed only on the formal allotment of the site. It is submitted that the Ops vide letter dated 03.08.2015 gave an option to the complainants to continue with the booking with the new entity or exit the booking and take a refund. However, no response has been received from the complainants and no legal notice was ever received by the Ops. Although as per payment schedule, the Ops raised demand on 16.01.2012, 02.03.2012, 19.05.2012 and 20.11.2012 but the complainants failed to make the payments. Thus, there is no deficiency in service on the part of OPs No.1 and 3 and prayed for dismissal of the complaint. The OP No.2 appeared before this Forum and filed written statement by taking some preliminary objections & submitted that the complainants had opted to purchase commercial property for business purposes and for profit motive. It is submitted that an amount of Rs.2,88,750/- paid by the complainant to the Op No.2 on account of commission and not a part of payment made towards the price of commercial property sought to be purchased by the complainants from the Op No.1 which was not refundable. It is submitted that the complainants could not claim recovery of the amount of Rs.2,88,750/- from the Op No.2 after a gap of more than 5 years. It is denied that Op No.2 was the authorized agent of OP No.1 through whom the payments were made. It is denied that the complainants approached the OP NO.1 through the OP No.2 for the allotment of site for self employment and earning livelihood in the center and submitted an application NO.SBC/314-B alongwith earnest money of Rs.4,62,000/- by way of cheque in the name of Op No.1. It is submitted that the Op No.2 being property consultants was approached by the complainants since they were interested in investing in business space in Zirakpur. It is submitted that the Op No.2 was instrumental in striking the deal between the complainants and the OpNo.1 and they have nothing more to do beyond that. Thus, there is no deficiency in service on the part of OP No.2 and prayed for dismissal of the complaint. The counsel for the complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-5 and closed the evidence. On the other hand, the counsel for the OP No.1 and 3 has tendered into evidence by way of affidavit Annexure R1/A alongwith documents Annexure R1/1 to R1/9 and closed the evidence. The Op No.2 has tendered into evidence by way of affidavit Annexure R2/A and closed the evidence. We have heard the learned counsel for the parties and have also perused the record and written arguments submitted by the Ops No. 1 and 3. Admittedly, the complainants booked one unit No. 314-B on 3 floor measuring 578 sq.rd feet vide application dated 25.03.2011 at Suncity Business Centre, Zirakpur, Punjab. The basic sale price of unit was Rs. 8,000/- per sq. feet. At the time of booking, the complainants paid Rs. 1,00,000/- vide cheque dated 25.03.2011. Subsequently payment of Rs. 1,50,000/-, Rs. 1,12,000/- and Rs. 1,00,000/- were made on 09.08.2011, 16.08.2011 and 12.09.2011 respectively vide receipts Ex. R1/3. The first question that falls for consideration before us is whether the complainants fall within the definition of Consumer. The answer to this question, is in affirmative. The allegation of opposite parties no. 1 and 3 is that the complainants did not fall within the definition of Consumer as defined in the Consumer protection Act, 1986, for the reason that the unit booked by them is a commercial unit at Suncity Business Centre at Zirakpur and had not been booked for the purpose of livelihood by means of self employment. It is further alleged that the complainants have not mentioned the details of qualifications of complainants and what business they intended to start or source of money for purchase of unit has been set out. It is also alleged that nothing has been averred as to how huge area of 578 sq. feet costing approximately Rs. 46,00,000/- was to be utilized for self employment. It is submitted that the daughter of complainant no. 1 Ms. Khushboo also applied for adjoining identical unit for which another complaint bearing No. 72/2016 has been filed before this Forum. Thus two units costing over Rs. 92,00,000/- having been booked by members of the same family without disclosing source of money or what business they intended to start, cannot be said to be for earning of livelihood by means of self employment. The plea of the OPs is without any force as the complainants have stated that they booked this property for earning their livelihood. Non-mentioning of qualification, details of business to be run by the complainants, and huge area of 578 sq. feet costing Rs. 46,00,000/- was to be utilized does not mean that the units were not booked for livelihood by way of self employment. No evidence was produced by the Ops that the complainants are property dealer, who deal in sale and purchase of the property and as such they purchased the unit in question for the purpose of investment, with a view to resell the same, as and when, there is escalation in price of real estate. The Ops do not have any right to retain the money of the complainant without any assurance that the property shall be delivered by such and such date. So we are of the view that the complainants are fully covered under the definition of consumer who availed the services of Ops by paying consideration in the form of depositing an amount of Rs. 4,62,000 in order to buy the unit in the scheme of Ops, to earn their livelihood by way of self employment. The submissions of the counsel for the Ops, therefore, being without any merit must fail and the same stands rejected. The judgment relied upon by the learned counsel for Ops in Chilukuri Adarsh Vs. M/s Ess Ess Vss Constructions, Rohit Chaudhary and Others Vs. Vipul Ltd. and Shri Harnam Singh Vs. Shalimar Estate Pvt. Ltd. are of no help to the Ops, as the facts of these cases are totally distinguishable from the facts of the case in hand. On another objection qua jurisdiction raised by the Ops No. 1 and 3, it is opined that this objection too is not sustainable. In their evidence the Ops placed on record the application form vide which the complainants booked the unit in question as Annexure R1/2. After going though the same it reveals that Op No. 2 Batta Property is their agent and the application and cheque amounting to Rs. 1,00,000/- drawn on Panchkula was received by Shri Ashwani Sharma, SL authorized signatory at Panchkula. As per demand letters Annexure R1/6 to R1/9 it has been mentioned that for any query contact Mr. Ashwani Sharma: 09988804020 Mr. Rajender Kumar: 011-23327735 Ext. 239. Moreover, the Op no.
2 in his reply to the complainant on merit it has been mentioned that it is made clear here that the answering respondents being property consultants were approached by the complainants since they were interested in investing in business space in Zirakpur. The answering OPs had shown them a number of properties at Zirakpur and the complainants finally showed their interest in making investments at the Suncity Business Center, Zirakpur. The amount of Rs. 2,88,750/- was charged by the answering OPs as commission for the deal between the complainants and the OP no. 1. This amount was paid by the complainants to the OP no. 2 by way of a bearer cheque, whereas the amount of Rs. 4,62,000/-, the earnest money, was paid by the complainants to the Op no. 1 by way of an A/c payee cheque. From the above it is proved that the application and payment made by the complainants was received in the office of OP no. 2 and it was in the knowledge that complainants paid Rs. 4,62,000/- to OP no. 1 and it has also been admitted by the OP no. 2 that he received Rs. 2,88,750/- from the complainant as commission for the deal between the complainants and OP no. 1. In addition, the complainant has specifically pleaded that the application was submitted by the complaints at Panchkula i.e OP no. 2 an amount of earnest money by way of cheque was also deposited through him. It has also been pleaded that the respondent no. 1 is running business of Sector 20 under the name of Suncity Projects, Parikarma, Panchkula. Hence, the cause of action has arisen in Panchkula, Sector 20, so this Forum at Panchkula has jurisdiction to decide the present complaint. After deciding the preliminary issues, there is need to decide the core issue of the complaint. It is not denied that the complainants deposited an amount of Rs. 4,62,000/- with OP no. 1 and 3 and Rs. 2,88,000/- with OP No. 2 to book a unit in the scheme of OPs. The amount is still lying with the OPs. It is well proved on record that despite receiving the said amount OPs not only failed to execute the buyer agreement but also not issued any allotment letter in favor of the complainant, as no allotment letter has been placed on record. Moreover as per
iii. clause 7 of the application the unit shall be deemed to have been allotted only after execution the Buyers Agreement. Since no Buyers Agreement was executed hence no allotment is made till date. It has been admitted by the Ops that on 03.08.2015 a letter was written to the complainants to the effect that due to certain circumstances, our association with the land owner i.e Krishang Buildtech Pvt. Ltd. has been terminated. Hence we wish to apprise you that we are no more a part of the aforesaid project and the same These facts were never has been taken over by Krishang Buildtect Pvt. Ltd. itself. brought to notice of the complainants. As per the clause 6 of the application the Ops mentioned that they have no approved layout plan and are still under process of sanctioning by the competent authority and are subject to change/modification/after/revise. It is clear that Ops were not owner of the land allotted the unit to the complainants and received consideration which is clearly contrary to law and in such circumstances, the complainants rightly asked OPs vide letter dated 31.08.2015 to refund the amount alongwith interest. It came out from the horses mouth itself that due to certain circumstances, their association with land owner i.e Krishang Buildtech Pvt Ltd. has been terminated and they are no more a part of the aforesaid project and the same has been taken over by Krishang Buildtech Pvt Ltd. itself. Had the Ops refunded the amount on the request of the complainants on 31.08.2015 (Annexure C-4) with interest, this dispute would not have cropped up. In view of the above, since the ops has utilized the money paid by the complaints for a period of more than 5 years, the complaints are entitled to refund the amount paid by them alongwith interest. Looking into overall facts and circumstances of the case we are of the opinion that 12 per cent interest per annum from the date of deposit till realization would meet the interest of justice. For the reasons, recorded above, we find merit in the complaint and same is allowed. The Ops are directed as under:- The OPs No. 1 and 3 are directed to refund the amount of Rs. 4,62,000/- to the complainants alongwith interest @ 9 % per annum from the respective date of deposit till the date of realization. OP No. 2 is directed to refund the amount of Rs. 2,88,750/- to the complainants alongwith interest @ 9% per annum from the date of deposit till the date of realization. The Ops no. 1 to 3 are directed to make the payment of Rs. 50,000/- as compensation to the complainants for causing harassment and mental agony to them and indulging into unfair trade practice and being deficient in service, jointly and severally. The Ops No. 1 to 3 are directed to pay Rs. 11,000/- to the complainants on account of litigation charges jointly and severally. Consumer Complaint No. 72 of 2016 titled as Khushboo Vs. M/s Suncity Projects. The above mentioned second consumer complaint has been filed by Ms. Khushboo. The facts of this case are similar to the facts of the first complaint. From the reasons recorded above in Consumer Complaint No. 71 of 2016 titled as Savita Jyanni and another Vs. M/s Suncity Projects, this consumer complaint is also allowed. The Ops are directed as under:- The OPs No. 1 and 3 are directed to refund the amount of Rs. 4,62,000/- to the complainants alongwith interest @ 9 % per annum from the respective date of deposit till the date of realization.
iii. OP No. 2 is directed to refund the amount of Rs. 2,88,750/- to the complainants alongwith interest @ 9% per annum from the date of deposit till the date of realization. The Ops no. 1 to 3 are directed to make the payment of Rs. 50,000/- as compensation to the complainants for causing harassment and mental agony to them and indulging into unfair trade practice and being deficient in service, jointly and severally. The Ops No. 1 to 3 are directed to pay Rs. 11,000/- to the complainants on account of litigation charges jointly and severally. This order be complied with by OPs within one month from the date of receipt of its certified copy failing which they shall make the payment of the amounts mentioned at Serial No. (i) and (ii) above in both the cases, with interest @ 12 % per annum from the date of deposit till the date of realization, apart from compliance of direction at Serial No. (iii) and
(iv) above. The certified copies of this order be sent to the parties free of costs. File be consigned to records after due compliance. The copy of this order be also placed in the case file of Complaint No. 72 of 2016 titled as Khushboo Vs. M/s Suncity Projects. Announced (Anita Kapoor) (Dharam Pal) 05.10.2016 Member President Note: Each and every page of this order has been duly signed by me. Dharam Pal, President