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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.B. Gupta, Presiding Member
Aerens Entertainment Zone Pvt. Ltd. —Appellant
versus
Mukhtiar Singh Bal —Respondent
First Appeal No.372 of 2015
(Against the Order dated 28/11/2014 in Complaint No. 91/2012 of the State Commission Punjab)
Decided on 24.9.2015
Counsel for the Parties:
For the Appellant:Mr. Udip Singh, Advocate
IMPORTANT POINT
Appellant in WS admitted that only 80% of work completed due to “Force Majeure Conditions” unable to complete construction,appellant not led evidence in this regard, deficiency on part of appellant writ large.
Headnote:(i) Consumer Protection Act, 1986 — Section 2 (d) & 21 (b) — Commercial Shop — Booked — Appellant in its written statement before State Commission nowhere questioned status of respondent as ‘consumer’ — In appeal for first timeappellant stated that investment made by respondentin property in dispute entirely for commercial purpose — State Commission in its order clearly stated that respondent specifically mentioned that he retired Punjab Government Employee — And he invested money with view to earn his livelihood in his old age —Which impliedly by way of self-employment — State Commission rightly held respondent as consumer. (Para 13)
(ii) Consumer Protection Act, 1986 — Section 14 — Punitive measure — Appellant received so far Rs.1355066/- — But Project in question not yet complete — Appellant in written statement categorically admitted that only 80% of work completed — Due to “Force Majeure Conditions” appellant unable to complete construction — Appellant not led any evidence in this regard — HELD — Deficiency on part of appellant writ large in this case. (Para 15)
Result: Appeal dismissed.
V.B. Gupta, Presiding Member—Appellant/Opposite Party has preferred this appeal against impugned order dated 28.11.2014 passed by State Consumer Disputes Redressal Commission, Punjab, Chandigarh (for short, ‘State Commission’) in Consumer Complaint No.91 of 2012. Alongwith appeal, an application seeking condonation of delay of 115 days has been filed.
2. Case of Respondent/Complainant is, that he had booked one Commercial Shop bearing No.F-47, which was construction linked plan having super area of 378.20 sq. ft. for total consideration of Rs.23,82,660/-, in the project launched by appellant in “First Theme Destination Mall” at Ludhiana. Respondent deposited a sum of Rs.1 lac on 26.2.2006, Rs.6,14,800/- on 24.3.2006, Rs.2,38,266/- on 14.6.2006, Rs.2 lacs on 28.7.2007, Rs.2 lacs on 20.9.2007. In all, total sum of Rs.13,53,066/- was paid to the appellant. However, after receiving more than 50% of the total sale consideration, appellant failed to carry out the construction work to give possession of the said shop within the promised period of 3 years. The project is still incomplete and cannot be completed as appellant is not making any efforts to complete it. Due to this act of the appellant, respondent had suffered a lot of mental torture, harassment and financial loss. As per price prevalent as on date, the price of such similarly situated property in similar conditions, comes to Rs.50 lacs approximately.
3. Accordingly, consumer complaint was filed to claim refund of Rs.13,53,066/- paid by respondent alongwith interest @ 24% p.a. upto 1.10.2012, which comes to Rs.19,65,257/- with interest @ 24% p.a. Further, Rs. 5 lacs towards compensation for causing mental torture, harassment, pain and suffering has been claimed,. In addition, Rs.27 lacs for loss of opportunity to buy commercial property and Rs.25,000/- as litigation expenses has also been claimed.
4. Appellant in its reply has stated that SARFAESI proceedings in respect of project in question has been initiated and appellant is in no position to deliver the possession. Thus, relief sought for is infructuous. It is also stated that upto October, 2008, it had completed more than 80% of the construction. It is denied that construction work was to be completed within three years as there is no such clause in the agreement.
5. The State Commission, vide impugned order allowed the complaint and passed following directions;
“15. In view of the above findings, the complaint filed by the complainant is allowed with a direction to the Ops:-
i) to pay Rs.13,55,066/-;
ii) to pay interest @ 12% from the date of deposit till payment;
iii) Rs.5 lacs as compensation; and
iv) Rs.11,000/- as litigation expenses.”
6. I have heard learned counsel for the appellant and gone through the record.
7. Appellant’s counsel in support of its case, has relied upon following judgments;
“i) Harish Kumar Kochar Vs. Gillco Developers Pvt. Ltd. 2015 (1) CPJ (NC) 686 : 2015 (1) CPR 504 (NC)
ii) Major Vishwani Puri and others Vs. DLF Universal Ltd. 2015 (1) CPJ (NC) 65 : 2015 (1) CPR 301 (NC)
iii) Jag Mohan Chhabra Vs. DLF Universal Ltd. 2007 (4) CPJ (NC) 199
8. Regarding application for condonation of delay, main grounds on which condonation of delay has been sought, read as under:
“2. That during pendency of the complaint, the appellant company had shifted their registered office from the address as on complaint to the address as mentioned in the head note of the complaint. Despite making arrangement with postal department to redirect all incoming mails to the present address, appellant did not receive free certified copy of the judgement as per provisions of the ‘consumer protection act’ after the matter was informed by the previous counsel having been reserved for orders after arguments on 20.11.2014. Thus, present counsel, who had been taken on penal of advocates by the appellant company in the recent times, was requested to find out fate of the matter, accordingly, after searching for the outcome o
