National Consumer Disputes Redressal
Manohar Damecha vs Lavasa Corporation Limited on 1 February, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1326 OF 2015 1. MANOHAR DAMECHA 401, RADIENT ALLEY,
PUDUMJEE PARK,
1005, NEW PATNA PETH, PUNE-411002 ...........Complainant(s) Versus 1. LAVASA CORPORATION LIMITED HINCON HOUSE, 11TH FLOOR, 247 PARK, L.B.S. MARG, VIKROLI (W), MUMBAI-400 083 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. Siddharth S. Deshpande, Advocate For the Opp.Party :
Dated : 01 Feb 2016 ORDER
JUSTICE J.M. MALIK
1. At the time of admission, we have heard the counsel for the complainant. The only question which pivots around the controversy is, "Whether, an NRI (or an ordinary citizen of India), can own more than one residential accommodation, to qualify the conditions of a 'consumer', under the C.P. Act, 1986?".
2. Sh. Manohar Damecha, an NRI, the complainant filed this case through his Power of Attorney, Sh. Ghansham Damecha. The complaint is conspicuously silent about the other properties owned by the complainant. The complainant was directed to file an affidavit stating that how much/many properties he owns in this country or anywhere else, vide order dated 20.11.2015. In the affidavit, the complainant submitted that he owns the following properties in Pune and Tamil Nadu :-
Sl.No.
Description of property
1.
Plot No.13 having area 53692 sq.ft.
Plot No.14, area 48205 sq.ft.
Plot No.15, area 48528 sq.ft Plot No.16, area 49980 sq.ft.
All are at Expat properties project "Lavarde" located at Village Lavarde, Tal. Mulshi, District - Pune, State - Maharashtra.
2. Shop (Market) No.43, area 5050 sq.ft.
At Fortune Plaza, Survey No.44/A, Hadapsar, Pune, State - Maharashtra.
3. Plot No.510, VGP Jaya Nagar, Thorapalli Agraharam Vill, Taluka Hosur, Dist. Dharmapuri, State - Tamil Nadu.
4. Villa, including Garage and Servant's quarter (as applicable) on lease from Lavasa Corporation Ltd., OP, for a period of 999 years, the Lot of 1/5 acre of Downhill Category bearing revised No.188 (earlier being Plot No.210 as per sanctioned layout) approximately admeasuring in all 711.3 sq.mts or thereabout, situated on Hill View Street, being part of Survey No.45, Hissa No. 1 + 2/3, 1 + 2/4, Village Dasave, Taluka Mulshi, District Pune, Maharashtra, and having built-up area of 2729 sq.ft., in accordance with the floor plans.
3. In the complaint, the complainant has averred that he, along with his wife, decided to invest their hard-earned money to purchase the Villa in question, in a Scheme floated by Lavasa Corporation Ltd., the OP. It is contented that their children are to study in India and, therefore, they have got allotted this Villa. They also read in Newspaper - "Business Standard", dated 14.03.2008, wherein a news item was published about UK based renowned Girls Day School Trust (GDST) to set up school at Lavasa and is due to open in September, 2009. They have also submitted that they have paid almost all the money. The Villa was not given to them, till 08.04.2013. It is alleged that on 26.08.2015, the complainant was threatened of termination of agreement in consequence of huge amount, though, he had paid seven installments. Consequently, this case was filed before us on 30.10.2015, with the following prayers :-
"i) OP be held guilty of deficiency of service, negligence and unfair practices causing grave and irreparable harm to complainant by way of deceiving complainant in regards to permissions for development and construction in Lavasa Project from the concerned government authorities, unreasonable delay in delivering defect as well as snags free possession of the said property to the complainant and breaching terms of the said agreement.
ii) OP may be directed to refund total amount of consideration price of Rs.93,56,350/- paid by the complainant with interest of 18% p.a., from the date of receipt of the first installment of the said amount, till receipt of total amount from OP.
iii) Pending the hearing and final disposal of the present complaint, the OPs be restrained from selling or transferring and or creating any third-party rights in the Lot of 1/5 Acre of Downhill Category bearing revised No.188 (earlier being Plot No.210 as per sanctioned layout) approximately admeasuring in all 711.3 sq.mts or thereabout, situated on Hill View Street, being part of Survey No.45, Hissa No. 1 + 2/3, 1 + 2/4, Village Dasave, Taluka Mulshi, District Pune, Maharashtra, and purchase a Villa of the pre-prepared Design No.NP4 by Lavasa including Garage and servants Quarter (as applicable) on the said Lot having built-up area of 2729 sq.ft., in accordance with the floor plans herein after collectively referred as "the said Villa".
iv) Pending the hearing and final disposal of the present complaint, the OP be directed to deposit the total consideration price, i.e., Rs.93,56,350/- which is paid by the complainant to OP in the office of this Hon'ble Commission and the office be directed to invest the same in the nationalized bank in the fixed deposit.
v) Interim and ad-interim relief may be granted in regards to prayer clause (iii) and (iv).
vii) OP be ordered and directed to pay an amount of Rs.10.00 Lakhs as token compensation for grave irreparable and irreversible mental agony and trauma, financial losses and financial risk caused to the complainant and their family members by deficient service and deceptive and unfair practices of OP1.
vii) OP be ordered and directed to pay a sum of Rs.2.00 Lakhs towards the costs of this complaint.
viii) Subject to satisfaction of this Hon'ble Commission, in alternate to prayer clause (ii), OP be directed to handover defect free possession of the said property with the fresh Architect's Certificate in regards to defects and snags admitted by OP, defects and snags pointed out by the complainant along with further defects and snags observed by structural Engineer appointed by this Hon'ble Forum.
ix) Any other order or relief as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the above complaint may be granted to the complainant".
4. We have heard the counsel for the complainant. He submitted that the above said 4-5 plots cannot cater to the needs of the complainant. Though, it was promised by the Builder that necessary facilities would be available, yet, it did not provide the said facilities. He admitted that they have not filed any complaint against the Builder / Promoter of those 4-5 plots. Again, the ground of the education of the children was taken in the year 2007-08. 8 years' have elapsed and the children must be pursuing their studies in the country, where they are residing. Moreover, the particulars of the children did not see the light of the day. It was not stated the then status of the education of the children. There is not even an iota of evidence to show that certain steps were taken in that regard by both the husband and wife. Moreover, the allegation of GDST school in Pune, was an eye-wash.
5. This is an admitted fact that no project of GDST school was opened in Pune. Moreover, it is averred that M/o Environment & Forests issued a 'stop-work' order on construction of OP at Lavasa, on 26.10.2010.
6. In Jagmohan Chhabra & Anr. Vs. DLF Universal Ltd., IV (2007) CPJ 199 (NC), it was observed as under :-
"Complainant Nos. 1 and 2 booked on 27.8.1990, Town Houses proposed to be constructed by the opposite party on the ground, first and second floors of Plot No. B-3/20, DLF-1, Gurgaon. Possession thereof was to be given to the complainants within 3½ years from the date of booking. An agreement dated 30.7.1991 was also executed between the parties. Complainants further booked on 14.11.1995 an apartment bearing No. 308B proposed to be constructed by the opposite party in the name and style of Hamilton Court in Gurgaon. Possession of the said Town Houses was taken by the complainants on 15.9.2003, under protest. It is alleged that Town Houses had deficiencies in construction and design. In para No. 5 of the complaint, the breakup of the amount claimed has been shown thus:
(a) to (e) xxxx
2. We have heard Mr. K.P.S. Rao for the complainants on admission. Evidently, ground, first and second floors in Town Houses and apartment No. 308B in Hamilton Court were purchased by the complainants for earning profits and transaction is thus relatable to commercial purpose and complainants not being the "consumers" within the meaning of Section 2(l)(d) of Consumer Protection Act, 1986, the complaint itself is not maintainable under the Act. Moreover, for adjudicating the claim made, voluminous evidence will be needed and the complaint, therefore, cannot be decided in summary procedure under the Act. Hence, the complaint is disposed of with liberty reserved to the complainants to approach the Civil Court to seek the recover for the amount claimed from the opposite party".
7. The said order has since been upheld by the Hon'ble Supreme Court in Civil Appeal No. 6030-6031 of 2008, vide its order dated 29.09.2008, wherein the SLP was dismissed.
8. We took the same view in Sunil Gupta Vs. Today Homes and Infrastructure Pvt. Ltd., decided on 03.02.2014. In para 7 of this judgment, this Bench held, as under :-
"7. This Commission, in case titled, Chilkuri Adarsh Vs. ESS ESS VEE Constructions, III (2012) CPJ 315, has held, as under :-
"Arguments of the learned Counsel have been considered. However, we are of the view that the complaint as presented cannot be maintained before a Consumer Fora, like ours, as the agreement was for the construction of two showrooms, which obviously relate to commercial purpose and the complainant, therefore, will not come within the definition of a 'consumer', as per Section 2(1)(d) of the Consumer Protection Act, 1986. This has been the consistent view of this Commission . It has held that even when a consumer has booked more than one unit of residential premises; it amounts to booking of such premises for investment/commercial purpose".
9. By no stretch of imagination, it can be held that 6th house was purchased exclusively for the purposes of livelihood by means of self-employment of the complainant. In case the NRIs, like the complainant, is allowed to save the court fees, the very purpose of ordinary consumer or as defined by the Act, shall stand defeated. Consequently, we find that the present case is not maintainable and the same is, therefore, dismissed in limine. However, there lies no rub for the complainant to seek remedy before any other appropriate forum or civil court, as per law. Further, he may seek help from the celebrated authority, reported in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, so far as the question of limitation is concerned.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER