SHRI AVI vs PUSHPA BUILDERS

THE case of the complainant in the present complaint, in nutshell, is that lured by the advertisements and representations of O.P., the complainant attended a Property Mela organized by the O.P. on 25.1.1987 and booked one shop on the ground floor of Commercial Complex known as ''Pushpa Auto Complex'' proposed to be constructed on Plot No. 159 and 160, Rohtak Road, New Delhi. THE price of the said shop having an area of 163.28 sq. feet was fixed at Rs. 1,69,000/- which was to be paid in instalments as and when demanded by the O.P. THE complainants as per agreement deposited the various instalments on time and paid a total amount of Rs. 1,54,100/ to the O.P. against receipts. It was represented by the O.P. that the shops would be constructed on Plot No. 159 and 160, Rohtak Road, New Delhi, whereas it was reliably learnt later on that the O.P. did not have the land allotted/transferred in its name at the time of issuance of the advertisements and even the plans were not sanctioned from the Appropriate Authorities before soliciting purchasers for the shops/workshops/show-rooms. Furthermore, the said plots of land could be used solely for the construction of one single workshop on each plot i.e., Plot No. 159 and Plot No. 160, Rohtak Road, New Delhi whereas the same were amalgamated to raise common structure. As such it was falsely and with mala fide intention represented by the O.P. that the O.P. had the authority to erect or build offices/shops/showrooms, etc. on the said land and to transfer the same to any other person, whereas the said land/portion could not be transferred to a third party without the prior consent of the lessor i.e., the Delhi Development Authority, as per the terms of the lease agreement. Thus the grievance of the complaints is, that it was in May, 1995 when a civil writ petition filed by the O.P. being C.W. No. 3447/93 was dismissed by the Hon''ble High Court of Delhi that the complainants came to know that the O.P. had carried out illegal and unauthorized construction in the complex in question and the same was liable to be demolished. THE complainants on the revelation of the said fact sought refund of the amount paid by them towards the price of the shop and on failure of the O.P. to refund the said amount, issued legal notice dated 16.5.1995 and thereafter filed the present complaint before this Commission seeking refund of the amount deposited with the O.P. together with interest @ 18% p.a. compounded yearly totalling a sum of Rs. 9,44,088/- as on 28.2.1996 together with Rs. 4,55,912/- being the difference in current market value of the shop booked by the complainant as well as Rs. 4,80,000/- as damages for loss of earning and Rs. 1,00,000/- as compensation for mental torture, harassment and agony suffered by the complainant together with cost of the proceedings.

THE O.P. in its reply/written version raised a number of preliminary objections; that the complaint as framed and filed by the complainant is not maintainable, as there is no privity of contract between the complainant, Shri Om Gupta and the O.P. Company, as the shop was booked by Shri Avi Gupta whereas the complaint has been filed by Shri Om Gupta only and as such the complaint is liable to be dismissed on this ground alone; that this Commission has no pecuniary jurisdiction to entertain the present complaint as the amount deposited was only Rs. 1,54,100/- and as such should have been filed before the competent District Forum; that the complaint is barred by limitation as the possession of units booked by the complainant was handed over to the complainant in January, 1991 and as such the present complaint, filed on 26.3.1996 has been preferred beyond the period of limitation; that the shop having been purchased for commercial purposes, the complainant is not a consumer under the Consumer Protection Act, 1986; that the dispute raised by the complainant is a civil dispute and as such cannot be entertained by this Commission under the Act. On merits however, the defence of the O.P. is that the complainant and other allottees had been allotted units in the Pushpa Auto Complex on licence basis as per requirement so the lease agreement executed with the DDA. Furthermore, the construction has been taken up in accordance with the sanctioned plan and has been completed as per schedule in June, 1990 whereafter the possession has been handed over to the complainant in January, 1991 complete with all amenities. It is further stated by the O.P. in its reply/written version that it is the complainant who is in violation of the terms of the agreement has not paid the full dues, and even at the time of possession owed a sum of Rs. 16,900/- to the O.P. towards the final bill. It also stated that the complainant was informed vide letter dated 22.12.1997 that the licence agreement of the unit allotted to him is ready for signing and that he should contact the concerned manager for the said purpose however, the complainant failed to do the needful, it is further denied by the O.P. in its reply/written version, that any fraud had been played upon the complainant. As such, it is prayed that the complaint, filed by the complainant, being false and frivolous is liable to be dismissed with exemplary costs in favour of the O.P. The complainant has filed a rejoinder to the reply/written version filed on behalf of the O.P., denying the contents of the same and reiterating those of the complaint. Evidence has been led on behalf of both the parties by filing affidavits. On behalf of the complainant, affidavit of Shri Om Gupta has been filed whereas the affidavit of Mr. H.L. Soin, Director of the O.P. has been filed on behalf of O.P.

We have carefully perused the evidence/documents/material on record as well as the written submissions filed on behalf of the complainants. Though opportunity was afforded to O.P. for filing its written arguments the same were not filed. We, however, heard the arguments advanced on behalf of the complainants in the presence of the representative of the O.P. One of the first preliminary objections raised by the O.P. is that the complainant Shri Om Gupta has no locus standi to institute the present complaint as the commercial space was booked by Shri Avi Gupta, as such the complaint filed by the complainant is not maintainable. So far as the said objection of the O.P. is concerned, it has been clarified by the complainant in its replication as well as affidavit by way of evidence that the complaint has been filed by him along with his son Mr. Avi Gupta, who is the co-owner of the shop in question. Furthermore, the same has been signed by Shri Om Gupta on his own behalf and as Special Power of Attorney holder of his son Shri Avi Gupta. It is further contended on behalf of the complainant that in the application form, (Annexure ''A'' to the complaint) the representatives of the O.P. Company by mistake filled in the name of the applicant as Shri Avi Gupta only whereas it should have been Shri Avi Gupta and Shri Om Gupta. On a perusal of the application form filed by the O.P., along with its written statement, it is apparent that the same has been signed by the complainant and not by Shri Avi Gupta. Furthermore, the Special Power of Attorney in favour of the complainant executed by Shri Avi Gupta is also on record. As such the first preliminary objection raised by the O.P. is not sustainable in the eyes of law.

THE other objection raised by the O.P. in its reply/written version is regarding pecuniary jurisdiction of this Commission to try the present complaint. In this regard, it is clarified that the amount claimed by the complainant is over 5 lakhs and below Rs. 20,00,000/- and as such is within the pecuniary jurisdiction of this Commission. It is also contended by the O.P. that the complaint filed by the O.P. is hopelessly barred by limitation as possession of the unit was handed over to him in January, 1991. THE said objection raised by the O.P. is also devoid of merit, in view of the fact, that the cause of action for the refund of the price of the shop, as well as, compensation/damages arose to the complainant as per averments made in the complaint in May, 1995 when the Civil Writ Petition No. 3447/93 filed by the O.P. before the Hon''ble High Court of Delhi against the demolition of the building of the O.P. by the DDA was dismissed and the complainants came to know that the building in which the shop had been booked by them was illegal and unauthorized and liable to be demolished by the DDA. THE said fact has nowhere been rebutted by the O.P. Thus the present complaint filed in October, 1996 is very well within the period of limitation. Another preliminary objection raised by the O.P. is that the unit booked by the complainant is for commercial purpose and as such the complainant is not a consumer under the Act. THE said objection raised by the O.P. is also devoid of force as the law is well settled on the point, that prior to the Amendment Act, 2002, deficiency in service even though for a commercial purpose could be the subject of a complaint under Section 2(1)(d)(ii) of the Act and the bar of the commercial purpose was applicable only to goods purchased by a consumer. On merits the O.P. has given a very evasive reply. Furthermore, from the documents and evidence placed on record by the complainant, it is evident that the complainants as well as the other allottees had been induced into booking the units in question by the misrepresentation of the O.P. that the O.P. Company was the owner of the plot No. 159 and plot No. 160 in question on which the Pushpa Auto Complex had to be constructed and that the O.P. Company had the right to transfer the units/shops/offices built thereon to third parties whereas the said plot being a leasehold plot the O.P. had no right to transfer the possession to a third party without the consent of the lessor, not only that, having raised unauthorized construction thereon in contravention of the sanctioned plan and the building by-laws the same was liable to be demolished by the Competent Authority. THE copies of orders dated 29.11.1994 passed by the Hon''ble High Court of Delhi in Civil Writ Petition No. 3347/93 and the orders dismissing the SLP filed by the O.P. Company before the Hon''ble Supreme Court dated 29.9.1995 have been annexed with the complaint. In view of the facts stated therein, we have no hesitation in holding that the O.P. company has indulged in unfair trade practice and has also rendered deficiency service to the complainant. Accordingly, it is directed that a sum of Rs. 1,54,100/- deposited by the complainant with the O.P. company (receipts for which are annexed with the complaint) be refunded to the complainant together with interest @ 18% p.a. from the date of deposit till the date of actual payment. The O.P. is also directed to pay a further sum of Rs. 5,000/- to the complainant towards the cost of these proceedings. The above said order be complied with by the O.P. within 45 days of the receipt of this order failing which the complainant shall be entitled to initiate proceedings under Sections 25/27 of the Act for the implementation of this order, as he may be advised. The present complaint, filed by the complainant, stands disposed of in above terms. Complaint disposed of.