STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH. Consumer Complaint No.314 of 2017 Date of institution : 04.05.2017 Date of decision : 07.11.2017

1. Indu Laroia W/o Sh. Ashok Kumar Laroia, House No.752, Sector 22-A, Chandigarh.

2. Ashok Kumar Laroia, House No.752, Sector 22-A, Chandigarh. .Complainants Versus

1. C and C Towers Limited, ISBT-cum-Commercial Complex, Opp. Verka Milk Plant, Phase-VI, Mohali-160055, Punjab, through its Managing Director/Authorized Signatory.

2. C and C Tower Limited, having Head Office at Plot No.70, Sector 32, Gurgaon-122001, Haryana, through its Managing Director/Authorized Signatory.

3. RST Estate Group, 122-123, 2nd Floor, Sector 8-C, Chandigarh. .Opposite Parties Consumer Complaint under Section 17 of the Consumer Protection Act, 1986. Quorum:- Honble Mr. Justice Paramjeet Singh Dhaliwal, President Mrs. Kiran Sibal, Member. Present:- For the complainants : Sh. Sandeep Suri, Advocate For the opposite parties: Sh. Kabir Sarin, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT : Facts of the Complaint The complainants have filed this complaint, under Section

17 of the Consumer Protection Act, 1986 (in short, the Act), seeking following directions to the opposite parties: Consumer Complaint No.314 of 2017

i) to pay 9,15,600/-, along with interest at the rate of 24% from the date of deposit till realization; ii) to pay 5,00,000/-, as compensation; iii) to pay 50,000/-, as litigation expenses. Brief facts, as set out in the complaint, are that the complainants, exclusively for their personal use and to earn livelihood, applied for office space in the commercial complex of the opposite parties situated in Section 57, Mohali under the name and style of C and C Towers Limited, as they were running their business from their house in Sector 22, Chandigarh, which was not permissible The sub-lease was signed and a sum of 5,23,200/- was paid by the complainants, by way of cheque No.039251 dated 07.08.2010. They were issued allotment letter dated 28.10.2010, vide which Unit no.16, Block/Tower-C, C and C Capital, 12th Floor, measuring 436 sq.ft., was allotted to them. The total cost of the said flat, including amenities, was 27,90,400/-. The complainants deposited a total sum of 9,15,600/- with the opposite parties on different dates, as per Table given in Para No.10 of the complaint. The possession of the said unit was to be delivered within

30 months, but there was no construction going on in the said project. The complainants, thus, demanded refund of the amount deposited by them, which the opposite parties refused. They sent notice dated 05.05.2016 to the opposite parties and in reply thereto, it was informed by the opposite parties that the project is likely to be completed in 30 months from the compliance date i.e. 15.12.2009, but denied to refund the amount. Hence, the complaint. Consumer Complaint No.314 of 2017 Defence of the Opposite Parties

2. Upon notice, the opposite parties appeared and filed joint written reply, taking preliminary objections that the complainants cannot claim the relief beyond the terms of the agreement. They have purchased the unit, in question, which is of commercial nature, solely for investment purpose to earn profits and, thus, they are not consumers. The complainants have failed to establish on the record that they purchased the said unit for self-employment. The complainants opted for Construction Linked Payment Plan and as per the allotment letter, the complainants were bound to clear all the instalments in time, but they are clearing the instalments in a staggered manner. As per the agreement entered into between the parties, the complainants have an option to surrender the commercial space, in question, subject to certain terms and conditions qua forfeiture. In the event of surrender of the commercial space, the complainants shall be governed by Clauses 1.2.1 and 1.2.3 of the allotment letter and certain amounts shall be automatically forfeited. On merits, allotment of the commercial space in favour of the complainants was admitted. The opposite parties received only 35% of the entire payment from the complainants. It was further pleaded that the construction of the said unit was likely to be completed in 30 months, failing which the opposite parties are bound by Clause 1.3.5 of the allotment, stipulating payment of certain compensation. It was further pleaded that the main bus terminus has been inaugurated by the Deputy Chief Minister of Punjab in the first week of December, Consumer Complaint No.314 of 2017 2016. The opposite parties are undertaking construction work, in accordance with the permissible construction, as per the sanctioned building plans and in compliance of the Municipal laws, regulating the construction. The delay in construction of the project cannot be directly attributed to the opposite parties, which was beyond their control. The complainants are not entitled to any relief. Other allegations of the complaint were denied and it was prayed that the complaint be dismissed with costs. Evidence of the Parties

3. To prove their claim, the complainants tendered in evidence affidavit of complainant No.2 as Ex.C/A, along with documents Ex.C-1 to Ex.C-13.

4. The opposite parties tendered affidavit of Sh. Yash Paul Dua, AGM-Legal/Admin. as Ex.OPA. Contentions of the Parties.

5. We have heard learned counsel for the parties and have gone through the record carefully.

6. Learned counsel for the complainants vehemently contended that as per clause 1.3.5 of allotment letter, Ex.C-3, the construction of the unit was to be completed within 30 months from the date of start of the lease period, after obtaining necessary approvals and sanctions, subject to force majeure circumstances. The lease started on 15.12.2009. However, the opposite parties failed to complete the project, in question, within the said stipulated period, without disclosing any cogent reasons. No development was carried on Consumer Complaint No.314 of 2017 at the site. It was further contended that the unit, in question, was applied by the complainants, exclusively for their personal use to earn their livelihood by means of self-employment, as they were running their business from their house in Sector 22, Chandigarh, which was not permissible. Since the opposite parties failed to complete the project within the stipulated period, so as to deliver possession of the unit, in question, therefore the complainants are entitled to the refund of the amount deposited by them, along with interest and compensation.

7. Per contra, learned counsel for the opposite parties vehemently contended that the complaint is not maintainable, as the complainants purchased commercial space, exclusively for commercial purposes to earn profits. It was further contended that the construction work is going in full swing, as per the sanctioned building plans and in compliance of the Municipal laws, regulating the construction. The delay in construction was beyond their control. The project, in question, is a Develop Build Operate Transfer (DBOT) basis and has all the necessary approvals, licenses from the Government as well as the competent authorities. There is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed. In support of his contentions, learned counsel relied upon the following cases:

i) Dnyandeo Patiba Bhasale v. Terex Equipments Pvt. Ltd. & Ors. 2017 (1) CPR 63 (NC); Consumer Complaint No.314 of 2017 ii) Mahesh Kumar v. M/s Shubhankar Marketing Pvt. Ltd. & Ors. 2016 (2) CPR 865 (NC); iii) Inderjit Singh Mangat & Anr. v. Godrej Properties Ltd. Consumer Case No.274 of 2015, decided on 06.04.2016 (NC); iv) Balbir Singh Randhawa v. DLF Universal Limited & Anr. Consumer Case No.402 of 2016, decided on 18.03.2016;

v) Devesh Wadhwa & Anr. v. M/s Emaar MGF Land Ltd. Consumer Case No.450 of 2015 (NC). Similar other authorities have also been relied, in which similar proposition of law was laid down. Consideration of Contentions

8. We have given our thoughtful consideration to the rival contentions of the parties.

9. So far as the contention of the learned counsel for the opposite parties that the unit, in question, is a commercial space and the complainants had purchased the same with the sole purpose of earning profits for all intents and purposes, is concerned, the same cannot be accepted on the face of it; specifically in view of the fact that it is the categorical averment of the complainants that they have purchased the commercial space for earning their livelihood, by way of self-employment. No cogent evidence has been led by the opposite parties to dislodge the said averment. Merely purchasing a space, which is commercial in nature, will not always lead to the fact that it is purchased only for gains. When a person takes the property for self- employment to earn his livelihood, then certainly such a property will Consumer Complaint No.314 of 2017 not come under the definition of commercial. The true spirit behind the purchase of the unit, in question, is to be seen. The opposite parties failed to produce any evidence on record to rebut this fact. The opposite parties tendered only affidavit of Sh. Yash Pal Dua, AGM- Legal/Admin., as Ex.OP/A, which is nothing, but the verbatim reproduction of the reply filed by the opposite parties. Except this affidavit, there is no other evidence led by the opposite parties to dislodge the averments of the complainants. It is true that that the law regarding commercial purpose cannot be loosely interpreted, but since the opposite parties have failed to rebut the averments of the complainants by leading any documentary evidence, we have come to the conclusion that the unit, in question, was purchased by the complainants for earning their livelihood, by way of self-employment. Honble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that that the appellant failed to show any cogent evidence, which may indicate that the respondents complainants or any of them has been indulging in sale purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for Consumer Complaint No.314 of 2017 profit. In the case in hand also, there is no evidence led by the opposite parties to prove that the complainants indulged in commercial activities to earn profits and that they have purchased the unit, in question, for further commercial purpose to gain profits.

10. In the present case also, the complainants, who are husband and wife, wanted to start their business in the unit, in question, by not employing any other person, to earn their livelihood, as they were earlier running their business in their residential house. The authorities relied upon by the learned counsel for the opposite parties are not applicable to the facts and circumstances of the present case, in view of the observations made in the above noted judgments.

11. In view of above discussion as well as the law on the subject, the contention of the opposite parties is rejected and the complainants are held to be consumers, under the Act.

12. Now, coming to the merits of the case, it is relevant to mention that the present matter is squarely covered by the earlier verdict given by this Commission in case Sharanjeet Kaur v. C & C Towers Ltd. & Anr. Consumer Complaint No.343 of 2016, decided on 02.06.2017. So, we intend to dispose of this matter, in view of the decision given in the above noted case.

13. Admittedly, the unit, in question, was allotted to the complainants, vide allotment letter dated 28.10.2010, Ex.C-3. The total cost of the said space, including amenities, was 27,90,400/-. The complainants deposited a sum of 5,23,000/- with the opposite parties vide receipt cheque Ex.C-2. As per clause 1.3.5 of the allotment letter, Consumer Complaint No.314 of 2017 Ex.C-3, the construction of the unit was likely to be completed within

30 months from the date of start of lease period, subject to force majeure circumstances. However, the opposite parties failed to complete the construction of project/unit within the stipulated period, without any sufficient cause. The complainants wrote letters Ex.C-6, Ex.C-7, Ex.C-9 and Ex.C-11 to the opposite parties to refund the amount of 9,15,600/- deposited by them, but to no effect. As per those letters, the other sum of 3,92,400/- was stated to be deposited vide cheque No.039468 dated 14.10.2010. The opposite parties in their replies Ex.C-8, Ex.C-10, and Ex.C-12 did not deny the deposit of the said amount and just asked the complainants to submit the application for refund, specifically quoting the clauses of the agreement. Moreover, the opposite parties admitted in the reply that they received only 35% of the entire payment from the complainants Thus, we find that the total amount deposited by the complainants was 9,15,600/-.

14. The opposite parties also failed to lead any evidence to show that they are having the requisite approvals/permissions/ sanctions from the competent authorities for developing their said project. Keeping in view of the above circumstances, we hold that the opposite parties have failed to comply with the provisions of the PAPRA. As per section 3 (General Liabilities of Promoter) of the PAPRA, the opposite parties were required to make full and true disclosure of the nature of his title to the land, on which such project is developed or such building is constructed or is to be constructed, make Consumer Complaint No.314 of 2017 full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days, notice or demand of the layout of the colony and plan of development works to be executed in a project, as approved by the prescribed authority in the case of a project. However, the opposite parties failed to comply with section 3 of the PAPRA.

15. As per section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the project, but they failed to produce on record any such permission. So, they also violated Section

5 of PAPRA.

16. As per section 9 of papra, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. As such, the opposite parties also violated Section 9 of the PAPRA.

17. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest. Consumer Complaint No.314 of 2017

18. As per Rule 17 of the Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the PAPRA, it has been provided as under:-

17. Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment.

19. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainants-buyers was required to be deposited in the schedule Bank, as per section 9 of papra and we wonder where that amount had been going. The opposite parties are not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing their part of the agreement. The opposite parties have failed to comply the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the complainants are entitled to the refund of the amount deposited by them, along with interest and compensation.

20. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties:

i) to refund 9,15,600/- to the complainants, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA; and Consumer Complaint No.314 of 2017 ii) to pay 50,000/-, as compensation on account of mental tension and harassment suffered by the complainants and litigation expenses.

21. The compliance of the order shall be made by the opposite parties within a period of 30 days of the receipt of certified copy thereof.

22. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER November 07, 2017. (Gurmeet S)