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Dr. P.K. Bansal, Bansal Dental Care v/s Sushma Buildtech Limited, through its MD

    Complaint Case No. 28 of 2020

    Decided On, 03 August 2021

    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh

    By, THE HONOURABLE MR. JUSTICE RAJ SHEKHAR ATTRI
    By, PRESIDENT
    By, THE HONOURABLE MRS. PADMA PANDEY
    By, MEMBER & THE HONOURABLE MR. RAJESH K. ARYA
    By, MEMBER

    For the Appearing Parties: ---------



Judgment Text

Raj Shekhar Attri, President

The facts necessary for disposal of this case are that the complainant who is a Doctor (Dentist) and running his clinic in a rented premises, decided to purchase his own unit, to get rid of the rent being paid by him. For the said purpose, on 08.05.2014, he booked a unit bearing no.19, 5th Floor, measuring 446.73 square feet, in the project of the opposite party, launched by it under the name and style “Sushma Chandigarh Infinium”, Village Bishangarh and Bishanpura, Chandigarh Ambala Highway, Zirakpur, Tehsil Derabassi, District SAS Nagar, Mohali, Punjab. Basic sale price of the said unit was fixed at Rs.10 lacs plus miscellaneous charges like taxes, EDC, car parking etc. It has been stated that despite the fact that as per clause 9 of the buyer’s agreement dated 08.05.2014, Annexure C-3, it was committed by the opposite party to deliver possession of the said unit within a period of 48 months (42 months plus 6 months grace period) from the date of execution thereof but they failed to do so, for want of construction and development activities. However, the opposite party paid compensation in the shape of assured rent starting from May 2014 till March 2019 and thereafter, it stopped paying the same, on the basis of an offer of possession letter dated 20.05.2019, Annexure C-6, which was mere a paper possession, as neither basic amenities were completed at the project site nor occupation and completion certificates had been obtained by it from the competent authorities. Number of requests made to the opposite party for redressal of grievance of the complainant, did not yield any result. Hence, this complaint has been filed by him, seeking following reliefs:-

‘To pay an interest @ 24% PA compounded monthly on the payments made by the complainant from the date of delay till actual meaningful possession of the Unit.

To pay Rs.2,00,000/- as damages on account of mental torture, agony and harassment.

To pay Rs.2,00,000/- as compensation on account of deficiency in service on the part of respondent.

To pay Rs.50,000/as litigation costs.

To set aside the demand of Rs.1,00,286/-.

To pay an assured return of Rs.30,896/- per month from April 2019 till the actual possession.

To compensate alongwith interest for rental payments which complainant has to pay to continue his present office/clinic @Rs.37873/- per month for the time of delay of possession till date of actual possession.

To pay 5,00,000/- for loss of opportunity due to blockage of money for a non useful cause.

To direct the OP to provide at the earliest meaningful possession including all the facilities like elevators, toilets, hotel, caf, restaurant, multitiered security, fire safety equipment etc. as promised in broucher for a fruitful opportunity to complainant to pursue his livelihood.

Any other relief as this Honourable Commission may deem fit.’

The claim of the complainant has been contested by the opposite party, on numerous grounds, inter alia, that this Commission did not vest with pecuniary and territorial jurisdiction to entertain this complaint; that because commercial unit has been purchased by the complainant, as such, he being speculator did not fall within the definition of “consumer”; that delay in offering possession of the unit occurred on account of force majeure circumstances faced by the opposite party i.e. shortage of labour and building material; demonetization and RERA compliances; that though possession of the unit in question was delayed on account of force majeure circumstances, even then, the complainant has been paid assured rent as specified in the agreement, to the tune of Rs.27,806/- per month , starting from May 2014 to March 2019, to the tune of Rs.18,22,864/-, whereas, the basic sale price of the unit is Rs.10 lacs; that time was not the essence of contract; that possession of the unit in question, complete in all respects was offered to the complainant vide letter dated 20.05.2019, followed by reminder dated 19.07.2019, Annexures R-5 and R-6 respectively but he failed to take over the same; that partial completion and completion certificates have also been obtained by the opposite party; that the complainant failed to make payment of the remaining amount, despite reminder having been sent to him, as a result whereof, cancellation letter dated 30.01.2020, Annexure R-7 in respect of the unit in question was issued to him; that the complaint filed is barred by limitation; and that deficient court fees has been paid by the complainant.

On merits, purchase of the unit in question by the complainant; payments made by him as mentioned in the complaint; execution of agreement; non delivery of possession of the unit by the stipulated date, has not been disputed by the opposite party. However, prayer has been made to dismiss the complaint with costs.

In the replication filed, the complainant reiterated all the averments contained in the complaint and controverted those, contained in written version of the opposite party.

The parties have been afforded adequate opportunities to adduce evidence in support of their respective contentions. They have adduced evidence by way of affidavit and also produced numerous documents. The parties also filed their respective written arguments.

None put in appearance on behalf of the parties, on the date when this complaint was fixed for oral arguments on 26.07.2021. As such, this Commission has gone through record of the case, including the written arguments filed by the parties, very carefully and proceeded to decide this complaint accordingly.

First coming to the plea taken by the opposite party in its written reply to the effect that since it was a commercial unit, as such, the complainant is not a consumer, it may be stated here that admittedly, the complainant is a Doctor (Dentist). He has specifically pleaded in his complaint that he intended to purchase the said unit, in order to run his clinic therein, so that he is able to get rid of payment of rent, being paid by him towards rented premises. The averments made by the complainant in his complaint are supported by his affidavit filed by way of evidence. The definition of a consumer has been defined under Section (2) (1) (d) of the Act, 1986 (under which this complaint has been filed) as under:-

‘....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 than 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.

Explanation:- For the purposes of this clause, “commercial purpose” does not include use by a person 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…’

The explanation to section 2 (1) (d) stipulates that “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. Recently, in the case of Tosoh India Pvt. Ltd. (Formerly Lilac Medicare Pvt. Ltd.) Vs. Ram Kumar & 3 Ors., Revision Petition No. 2833 of 2018, decided on 06 Jan 2020, the Larger Bench of the Hon’ble National Commission has laid down following preposition of law, under which, consumer complaints are admissible in respect of commercial units:-

“(a) Only a person engaged in large scale commercial activities for the purpose of making profit is not a consumer;

(b) There should be a direct nexus between the large scale commercial activities in which a person is engaged and the goods purchased or the services hired or availed by him, before he can be excluded from the purview of the term ‘consumer’. Therefore any goods purchased or the services hired or availed even by a person carrying on business activities on a large scale for the purpose of making profit will not take him out of the definition of the term ‘consumer’, if the transaction of purchases of goods or hiring or availing of services is not intended to generate profit through the large scale commercial activity undertaken by him and does not contribute to or form an essential part of his large scale commercial activities.

(c) What is crucial for the purpose of determining whether a person is a ‘consumer’ or not is the purpose for which the goods were purchased or the services were hired or availed and not the scale of his commercial activities.

(d) The explanation below Section 2(1)(d) of the Consumer Protection Act is clarificatory in nature

(e) A person purchasing goods or hiring or availing services for a consideration, for the purpose of earning his livelihood by way of self-employment is a ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act.

(f) It is not necessary that a person should be working alone in the commercial activity undertaken by him for earning his livelihood and his family members and / or a few employees can assist him in his commercial venture. Such assistance by his family members or by a few employees engaged by him does not convert his business or profession into a commercial activity on a large scale, for the purpose of making profit and therefore, does not exclude him from the purview of the term ‘consumer’.”

Further, under similar circumstances, in Sunil Kohli and anr. Vs. M/s Purearth Infrastructure Ltd., Civil Appeal nos.9004-9005/2018, decided on 01.10.2019, the Hon’ble Supreme Court while interpreting the legal term of consumer, has categorically observed as under:-

“As laid down by this Court in Laxmi Engineering Works, the explanation to Section 2(1)(d) of the Act clarifies that “in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’”. This Court went on to observe that what is “Commercial Purpose” is a question of fact to be decided in the facts of each case.

To similar effect are the observations of this Court in Cheema Engineering Services wherein it was observed in para 6 thus:

“6. In other words, the Explanation excludes from the ambit of commercial purpose in sub-clause (i) of Section 2(1)(d), any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. The question, therefore, is whether the respondent has been using the aforesaid machine for self-employment? The word “self-employment” is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self- employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but “merely earning livelihood in commercial business”, does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood.

‘He’ includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that, therefore, it is not a commercial purpose. The orders of all the Tribunals stand set aside. The matter is remitted to the District Forum. The District Forum is directed to record the evidence of the parties and dispose of it in accordance with law within a period of six months from the date of the receipt of this order.” The issue therefore is whether the evidence on record is suggestive or indicative of the fact that the premises in question were booked by the complainants with the intention of self-employment or self-use.

The affidavit of evidence as quoted above clearly points that the complainants wanted to dispose of the property in DENMARK and wanted to come down to Delhi to start a business. It is for this purpose that the premises in question were booked. The evidence also discloses that the Complainant no.1 was not employed any more in DENMARK and as a matter of fact, he was serving RED CROSS, a charitable organization. In the circumstances, it cannot be ruled that the case of the Complainants would not come within the definition of “consumer” as defined under the provisions of the Act.”

Thus, in view of above laid down preposition of law and also the affidavit filed by the complainant to the effect that he intended to purchase the said unit, in order to run his dental clinic therein, so that he is able to get rid of payment of rent being paid by him towards rented premises, it is held that he is a consumer, especially when no evidence has been placed on record by the opposite party, to prove contrary to the plea taken by the complainant. As such, objection taken in this regard stands rejected.

The next question which needs to be adjudicated is with regard to pecuniary jurisdiction of this Commission, it may be stated here that if the value of the unit in dispute i.e. Rs.10 lacs plus miscellaneous charges and other reliefs claimed i.e. interest on the deposited amount; compensation for mental agony and harassment etc., are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has pecuniary Jurisdiction to entertain and decide this complaint, as per CPA 1986, under which this complaint has been filed. Objection taken by the opposite party in this regard stands rejected.

Now we will deal with the objection regarding territorial jurisdiction of this Commission, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the present case, perusal of allotment letter dated 08.05.2014, Annexure C-2 has been issued by the opposite party from its office located at SCO No.172-173, First Floor, Sector 9-C, Chandigarh. Perusal of agreement dated 08.05.2014, Annexure C-3 also reveals that it has been mentioned therein that the registered office of the company is located at SCO No.172-173, First Floor, Sector 9-C, Madhya Marg, Chandigarh. Even the offer of possession letter dated 20.05.2019, Annexure C-6 and reminder letter dated 04.09.2019, Annexure C-7 have been issued by the opposite party from its office located at Unit No.B-107, Business Complex, Elante Mall, 1st Floor, Industrial Area, Phase-1, Chandigarh. Thus, from the documents, referred to above, it is clearly proved that the company was actually and voluntarily residing and carrying on its business, from the said Chandigarh Offices and personally works for gain thereat. As such, objection taken with regard to territorial jurisdiction of this Commission stands rejected.

It may be stated here that almost all the facts with regard to booking of the unit in question; payments made by the complainant; execution of agreement; delay in offering possession of the unit by the stipulated date i.e. 48 months from the date of execution of the agreement dated 08.05.2014, have not been disputed by the opposite party. At the same time, it is also evident from the record that it has been fairly admitted by the opposite party that there was delay in offering possession of the unit in question to the complainant and for that he has already been compensated by way of making payment of assured rent @ Rs.69.16 per square feet per month as specified in clause 2 of the Unit Buyer Option Agreement Assured Return Plan, for the period starting from May 2014 to March 2019 to the tune of Rs.18,22,864/- @Rs.30,896/- per month i.e. till the date when offer of possession of the unit in question was made to him vide letter dated 20.05.2019, Annexure C-6. Since, the opposite party has not disputed the delay in offering possession of the unit and also it has paid compensation to the complainants, in the manner, referred to above, as such, there is no question of dealing with the pleas raised by it, justifying delay for the said period.

However, the complainant on the other hand, has also not disputed the receipt of the said assured rent @Rs.30,896/- per month, starting from May 2014 to March 2019 i.e. total amount of Rs.18,22,864/- from the opposite party.

Under above circumstances, the only question which needs to be determined by this Commission is, as to whether, the complainant is entitled to any further compensation for delay in offering possession of the unit in question and if yes, to what extent? As stated above, as per clause 9 of the said agreement, possession of the unit in question was to be offered within a period of 48 months from the date of execution i.e. latest by 07.05.2018. However, it is evident from the record that possession of the unit in question was offered for the first time, vide letter dated 20.05.2019, which has been disputed by the complainant. Thus, in the first instance, we will deal with the question, as to whether, the possession so offered vide letter dated 20.05.2019 was genuine or not? It may be stated here that it is well settled law that before offering possession of the unit/plot to the buyer, the builder is legally bound to obtain occupation and completion certificates from the competent Authorities. However, in the present case, record reveals that though possession of the unit was offered to the complainant vide letter dated 20.05.2019, yet, occupation and completion certificates in that regard was obtained only vide letter dated 25.07.2019, Annexure R-9. Under these circumstance, we are of the considered opinion that the opposite party should have offered possession of the unit after 25.07.2019 only and not before that. In this view of the matter, it is held that the complainant is entitled to compensation by way of assured rent @Rs.69.16 per square feet, as specified in the agreement till 25.08.2019 (30 days from the date of issuance of occupation and completion certificates). It is significant to mention here that there is nothing on record to prove that any opportunity to take possession of the unit in question was given to the complainant, after obtaining occupation and completion certificates by the opposite party. In this view of the matter, it is held that cancellation letter dated 30.01.2020 issued by the opposite party on the basis of offer of possession letter aforesaid, which was sent in the absence of occupation and completion certificates, deserved to be quashed.

No doubt, the complainant has also sought interest on the deposited amount for the period of delay in offering possession of the unit in question, yet, we are of the considered opinion that once he has received a pretty amount of assured rent @Rs.69.16 per square feet, per month, and has received total amount of Rs.18,22,864/- against the basic sale price of Rs.10 lacs, which came to more than 30% p.a. of the deposited amount, he is not entitled for any further interest for the period he has already received the assured rent aforesaid. The object of the Consumer Protection Act is not to enrich consumers unjustly. In our considered opinion the assured rent already received by the complainant for the period of delay and also for the remaining period awarded by this Commission is just, fair and reasonable.

As far as objection taken to the effect that the complaint filed is beyond limitation, it may be stated here that since it is an admitted fact that possession of the unit in question was, for the first time, offered vide letter dated 20.05.2019 only, as such, if the period of 2 years are counted from the said date, this complaint having been filed on 24.01.2020, is well within limitation. Furthermore, if possession of the unit in question was not offered by the opposite party for number of years, they cannot take any advantage of that, in view of principle of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Dev

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elopment Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when possession of the unit/plot is not offered, there is a continuing cause of action, in favour of the allottee/buyer. As such, objection taken by the opposite party in this regard, stands rejected. Now coming to the objection taken by the opposite party with regard to court fees, we have gone through the requisite documents and found that correct fees to the tune of Rs.2,000/-, has been paid by him. Objection taken in this regard, as such, being frivolous, is rejected. For the reasons recorded above, this complaint is partly accepted with costs and the opposite party is directed as under:- To hand over actual physical possession of the unit in question to the complainant, within a period of 15 days, from the date of receipt of a certified copy of this order, on receipt of balance amount legally due from the complainant, strictly as per the Agreement. To get execute and register the sale deed in respect of the unit in question in favour of the complainant, within a period of one month, from the date of handing over possession. However, stamp duty and registration charges will be payable as per terms and conditions of the agreement. To pay assured rent @Rs.69.16 per square feet of the area of unit in question, for the period from 01.04.2019 to 25.08.2019, to the complainant within a period of one month, from the date of receipt of a certified copy of this order, failing which, thereafter, the accumulated amount shall carry penal interest @9% p.a. from the date of default till the payment is made. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice, in offering possession without obtaining occupation and completion certificates; and also cost of litigation, in lumpsum, to the tune of Rs.50,000/-, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization. Cancellation letter dated 30.01.2020, Annexure R-7 is ordered to be quashed. Certified copies of this order be sent to the parties, free of charge. The file be consigned to Record Room, after completion.
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