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Judgment
Deepa Sharma, Presiding Member
The present Appeal has been filed against the order dated 25.07.2016 of the State Consumer Disputes Redressal Commission, UT Chandigarh (for short “the State Commission”) in Complaint No.118 of 2016. Vide this impugned order, while holding the Appellant deficient in providing service to the Complainant/Respondent, following directions were issued by the State Commission:
“16. For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties are jointly and severally, directed as under:-
i. To refund the amount Rs.29.25 lacs to the complainant, alongwith interest @15% p.a., from the respective dates of deposits onwards.
ii. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
iii. To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
iv. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% p.a. instead of @15%, from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
The brief admitted facts of the case are that on 14.10.2011 the Complainant/Respondent had purchased a 2 BHK flat measuring 1260 sq.ft. for a price of ₹45,38,800/- in the project named “Yellow Stone Landmark Info City”, SAS Nagar, Mohali. At the time of the booking, the Appellant had projected to the Complainant that all the necessary approvals had been received and that there was a clearance of 12 storey height of the building given by airport authorities; work on the road network started; the sewage, water supply and electrification was in process; sample flat was also under construction and would be completed by November end; the construction of the apartment was scheduled to start in the month of February 2013 and was expected to be completed by April 2015. The Complainant had visited the site in the month of May 2013 and found that the construction had not yet started. In April 2014 again he went to the site but he did not find any construction activity. He sent legal notice dated 11.06.2015 asking for refund of his deposited amount with interest. There is no dispute that by the time the Complainant had paid a sum of ₹29,25,000/-. Aggrieved by the said act on the part of the Appellant, the Respondent/Complainant filed the Complaint before the District Forum.
Notice of the Complaint was given to the Appellant. The Appellant had taken several contentions. It, however, was not disputed that the Appellant had received a sum of ₹29,25,000/- from the Complainant. Letter dated 08.10.2012 was also admitted. It was contended that the completion period given till April 2015 was tentative and not final. It was also contended that the dispute qua the Appellant at EDC was pending with GMADA in Civil Writ Petition No.5213 of 2015 and due to pendency of this dispute, the authorities had not cleared the layout plans of the project and therefore, the project could not be started. It was contended that the Complainant had owned three properties at different places and he had booked the flat for investment purpose to gain profit in future.
In the rejoinder, the Complainant had stated that after his retirement on 31.05.2010, he had sold his house in Jaipur and in order to settle his married son and daughter, purchased residential properties at Mohali. He also contended that he is staying in a rented flat in Sector 51 A, Chandigarh and also filed the rent deed stating that the subject property was purchased for his son and daughter.
Parties led their evidences before the State Commission. However, when the matter was fixed for final hearing no 04.07.2016, the Appellant did not attend the proceedings and the matter in the interest of justice was adjourned by the State Commission to 21.07.2016. On that date also, the Appellant did not appear and arguments on behalf of the Complainant were heard and subsequently the impugned order was passed.
In the impugned order, on the basis of the evidences on record, the State Commission after relying on the findings in the case of “Kamal Sood Vs. DLF Universal Ltd., III (2007) CPJ 7 (NC)” has held that the Appellant had committed unfair trade practice by inviting and making booking in a project which had no clearances. As regards the contention raised in the written version regarding Complainant not falling within the definition of consumer, the State Commission has given following finding:
“9. Objection of the opposite parties that the complainant would not fall within the definition of consumer, has no legs to stand. By filing replication, it has clearly been stated by the complainant that he owned his house in Jaipur. On superannuation, he retired from service at Chandigarh. His married son and daughter were pressing him to settle in and around Chandigarh. To settle his family, the complainant sold his house at Jaipur (sale deed copy is placed on record) and purchased three units, one for him, one each for his married son and daughter. However, to gain benefit of income tax benefit on capital gains, all the three properties were purchased and got registered in the name of the complainant. Necessary documents have been placed on record to prove above said fact.
We are satisfied with the plea taken by the complainant. Otherwise also, there is nothing on record to show that the complainant is a property dealer. He retired from Govt. service and with limited means, he had purchased the said unit. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion in that regard, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, in their written reply, therefore, being devoid of merit, is rejected.
Learned Counsel for the Appellant has failed to bring to my notice any illegality or infirmity in the findings of the State Commission’s order relating to deficiency in service and findings that Respondent is a Complainant within the definition under the Act. There is nothing on record also which can even by preponderance of evidence show that the Complainant had been engaged in the business of selling and purchasing of properties thus falling outside the definition of “consumer”. It is also an admitted fact that at the time when the unit was booked by the Complainant on invitation of the Appellant to buy property in their project, the Appellant did not have any clearances and the matter was sub judice with GMADA. It is also not a disputed fact that the delivery of the possession was not given within stipulated period which amounts to deficiency in service. Therefore, the findings of the State Commission on both these counts cannot be found fault with.
It is argued on behalf of the Appellant that the State Commission has granted interest which is towards higher side. It is also argued that the interest awarded itself amounts to compensation and therefore, grant of compensation in different heads towards causing mental agony, physical harassment etc. amounts to infirmity in the impugned order. It is submitted on instructions that the Appellant is ready to give interest @ 9% p.a. from the respective dates of deposit till the date of payment.
Learned Counsel for the Respondent/Complainant who is present with the Complainant submits that he agrees that the rate of interest be reduced to 9% p.a. and be granted from the respective dates of deposits till the dates of payment. It is also submitted that since this interest is awarded as compensation no other compensation in any other category can be awarded.
In view of the above contentions of the parties, I modify the impugned order and issue the following directions:
(i) The Appellant is directed to refund the amount of ₹29,25,000/- to the Complainant along with interest @ 9% p.a. from the respective dates of deposits till the date of payment.
(ii) The litigation cost as awarded by the State Commission shall also be paid. In addition to that litigation cost, litigation cost for litigating before this Commission is also awarded to the tune of ₹25,000/-.
This payment shall be made within eight weeks from this order, failing which the amount shall carry interest @ 12% p.a. Execution of the entire relief shall be filed before the State Commission.
With these directions, the Appeal stands disposed of.