State Consumer Disputes Redressal Commission
Brinder Singh Bakshi vs Taneja Developers & Infrastructure ... on 3 August, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.64 of 2016
Date of Institution: 01.03.2016
Order reserved on: 02.08.2017
Date of Decision : 03.08.2017
Brinder Bakshi w/o Sh. Satinderpal Singh Bakshi, aged about 51
years, r/o H.no.64, Sector-70, Mohali
.....Complainant
Versus
Taneja Developers & Infrastructure Ltd., Regional Office SCO
No.1098-1099, 1st floor, Sector-22 B, Chandigarh.
....Opposite Party
Consumer complaint under Section
17(1)(a)(i) of Consumer Protection Act,
1986
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the complainant :Sh. B.S. Sohal, Advocate For the opposite party :Sh. Puneet Tuli, Advocae ................................................ J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has instituted this complaint under Section 17(1) (a) (i) of Consumer Protection Act 1986 (in short "the Act") against the opposite party (to be referred as OP) on the premise that she purchased plot measuring 250 square yards (customer ID: MPP-10789) in the township developed by the OPs at Kharar Road, Sector 117-118, Mohali against consideration of Rs.16,25,000/-. The OP is dealer and colonizer and developing land Consumer Complaint No.64 of 2016 2 and it sells plots, flats, floors and commercial properties to the buyers. OP vide letter dated 28.05.2008 requested complainant to visit office alongwith identity proof for collecting her allotment letter with regard to booking of plot no.593 measuring 250 square yards (customer ID: MPP-10789) @ Rs.6500 /- per square yard. The OP allotted above said plot to complainant claiming that the same was approved by GMADA, being hassle free. She paid Rs.17,37,250/- to OP till date. The complainant also paid external development charges at the instance of OP. The OP had not delivered the possession of the above said plot to complainant. She purchased the above plot for sale for arranging the money for her daughter's marriage. The fixation of marriage of her younger daughter has been delayed due to delayed possession of plot. The complainant underwent great mental stress and harassment due to above attitude of OP. The OP have been utilizing the deposited amount of complainant of Rs.17,37,250/-. The complainant served legal notice dated 12.02.2015 upon OP, through her counsel, but to no effect. Previously, the complainant filed the complaint before District Forum Mohali, but the same was returned on account of lack of pecuniary jurisdiction of District Forum for presentation before appropriate Forum. OP flatly refused to accede to the request of the complainant for delivery of possession of the above plot. The complainant has prayed that OP be directed to handover the possession of above plot to her or to pay Rs.50,00,000/- in total; further to pay Rs.10,00,000/- Consumer Complaint No.64 of 2016 3 as compensation for mental harassment; and to pay Rs.33,000/- as litigation expenses.
2. Upon notice, OP appeared and filed written reply raising preliminary objections that complaint is not maintainable in the present form. The complaint is alleged to be based on misrepresentation and concealment of facts and wrong facts and merits dismissal on that point. Government of Punjab attracted new investment in the State Formulated Industrial Policy-2003. Housing and Urban Development were also made the subject matter of the said policy. In view of above policy, OP company was already in the process of purchasing the lands to set up a Mega Housing Project in village Ballo Majra (Mohali) for developing an area of 160 acres of land with an investment of over Rs.266.50 crores, which was accepted by the Directorate of Industries & Commerce, Punjab and letter of intent was issued in favour of OP company on 21.12.2015. The Government of Punjab also accorded various concessions subject to the condition that the residential project at the location specified must be of Rs.100 crores or above at a single geographical location and shall be developed in contiguity and also agreed to make the acquisition of land under the provisions of Land Acquisition Act, 1894 for OP company to the extent of 10% of the total area of the project. The OP company remained unable to acquire land directly from the land owners. The OP company was under process of development of said mega housing project consisting of different residential projects to create an integrated township. It is further Consumer Complaint No.64 of 2016 4 averred that Kapil Batra, resident of 9/16, East Patel Nagar, New Delhi-110008 also approached the OP company at their Head Office at New Delhi, through broker Raja Properties with an application dated 06.06.2005 by depositing Rs.3,00,000/-, vide cheque bearing no.5999194 dated 07.06.2005, for getting himself registered for offer of allotment of a residential plot measuring 250 square yards in the future township project of OP company to earn premium from the open market. The complainant also wanted to make investment in the real estate market and on 13.11.2006, she purchased the registration deposit rights of said Kapil Batra for offer of allotment of a residential plot in the future township of the OP company by presenting an application duly signed by Kapil Batra and got his registration deposit rights transferred in her name. On 28.05.2008, letter was issued by OP to complainant requesting to confirm her conversion of registration into allotment of a plot at Mohali. She was also telephonically called on the said date. She submitted letter for confirming the above conversion of her registration deposit rights into allotment of a plot in TDI City, Kharar-Chandigarh Road, Mohali. The allotment letter of above said plot was prepared by OP company, which was accepted by the complainant by putting her signatures on 09.06.2008. There are 25 more plots approved by the competent authority in the layout plan. The road in front of this lane of plot nos.571-A to 602 falls in Khasra nos.27//25/1, 27//25/1/2, 27//16/2, 27//15/2, 27//16/1, 26//10, 26//1/2, 26//1/1 and the owners of these khasra numbers were not willing to sell their land to OP Consumer Complaint No.64 of 2016 5 company. The OP company sent requisition to Government of Punjab. Accordingly, Punjab Government issued notifications under sections 4 and 6 of the Land Acquisition Act, 1894. The said notification became the subject matter of litigation before the Hon'ble High Court for the States of Punjab & Haryana in CWP Nos.15651 of 2009 and CPW No.15216 of 2009. Due to above reason, possession of plot numbers 571-A to 602 including the complainant's plot could not be offered by OP company. The OP company can offer alternate plot to the complainant in the same township or in the second township. The complainant can either wait for the decision of the aforesaid writ petitions or she can claim the refund of her money deposited with OP company. It is further averred that complainant is not consumer, as she is an investor, who deposited money to earn profits for incurring expenditure on her daughter's marriage and as such she is not consumer, as defined in Section 2(1)(d) of C.P. Act, 1986. The complaint was contested by the OPs on the above referred premises, even on merits. It was averred that complainant diverted money investment of her husband through undisclosed sources. The OP prayed for dismissal of the complaint.
3. The complainant tendered in evidence her affidavit Ex.C-A alongwith copies of documents Ex.C-1 to C-8 and closed the evidence. As against it, OP tendered in evidence affidavit Ex.OP-A alongwith copies of documents Ex.OP-1 to Ex.OP-9 and closed the evidence.
Consumer Complaint No.64 of 2016 6
4. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The foremost point falling for adjudication in this case before us is as to whether the complainant is consumer of OP or not, as defined in Section 2(i)(d) of the C.P. Act, 1986. Consumer has been defined in Section 2(1)(d) of C.P. Act, 1986 as under:-
"(d) "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) 12 [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 12 [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 13 [but does not include a person who avails of such services for any commercial purpose];
Explanation- For the purpose 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 purpose of earning his livelihood by means of self-employment."
Consumer Complaint No.64 of 2016 7It is, thus, evident from the explanation to Section 2(1)(d) of the Act introduced by the Legislature, vide amendment Act, 62 of 2002, for the purpose of this clause, that commercial purpose does not include user by a person of goods bought and used by him and services hired or availed by him exclusively for the purpose of earning his livelihood by means of self-employment. It is essential for the consumer to prove that he bought the goods or availed the services
(i) exclusively (ii) for the purpose of earning his livelihood (iii) by means of self employment. We have to examine this case with the touchstone of Section 2(1(d) explanation of the Act on the record. We have gone through the pleadings of the parties on the record. The complainant has specifically pleaded in para no. 9 of the complaint that she purchased plot for resale purposes for arranging money for her daughter's marriage, because the marriage of her younger daughter was fixed for 4th September, 2016. There is categorical assertion of complainant in para no.9 of the complaint that she purchased the plot for resale for arranging money for her daughter's marriage. The complainant also swore her affidavit Ex.C-A on the record. Even in affidavit Ex.C-A, she has testified on oath in para no.9 that she purchased the above plot for sale for arranging the money for her daughter's marriage, which was fixed on 4th September 2016. It is, thus, evident from perusal of para no.9 of the complaint that she purchased the plot for resale for arranging the money for her daughter's marriage, which was fixed on 4th September 2016. It is, thus, evident from perusal of para 9 of Consumer Complaint No.64 of 2016 8 complaint as well as affidavit on oath of complainant Ex.C-A that she purchased the above said plot for resale in the market to earn money for meeting the marriage expenses of her daughter. We can safely infer even from the case of complainant that she has not purchased the plot for her residential purposes and rather purchased it for resale in the market for earning profits to be incurred as expenses on her daughter's marriage. The primary aim of the complainant is to earn premium by means of resale of the plot in the market. The OP has taken categorical plea in the written statement that she is not potential user of the plot in dispute. She invested money to earn premium from its resale in open market for meeting the expenses of her daughter's marriage. The OP took specific plea that complainant is investor, who invested money to earn profits only from sale of the plot in the market. From affidavit of Deepak Nayyar, Chief Executive Officer of OP company Ex.OP-A, it has appeared on the record that complainant is not potential user of the plot in question. She is stated to be an investor, who invested her money in plot to earn premium by way of resale in open market for meeting expenses of her daughter's marriage. This witness stated that complainant is not consumer, as defined in Act. The complainant cannot run away from her pleadings which are the foundation of her case. As per pleaded case of complainant and her affidavit on the record, she purchased the plot for resale in the market to meet the expenses of her younger daughter's marriage. The primary aim of the complainant is to earn profits by resale of the plot and not to use it as a potential user. Consumer Complaint No.64 of 2016 9 Evidence beyond pleadings cannot be looked into. As per explanation appended with Section 2(1)(d) of CP Act, the sale of goods or user or availing services can be taken up for commercial purposes alone, if they have not been purchased or hired exclusively for the purpose of earning livelihood by means of self-employment by the concerned person. Consequently, the complainant is not proved to be consumer, as defined in Section 2(1)(d) of the C.P. Act, 1986.
5. As a result of our above discussion, this finding is recorded that complainant is not proved to be consumer under Section 2(1)(d) of the Act. She has failed to prove that she is potential user of plot. Only consumer can maintain the complaint under C.P. Act, since, complainant has not been found to be consumer and as such she is not competent to file the complaint before this Forum. She can knock at the door of the appropriate Forum for Redressal of her grievances. The complaint of the complainant is dismissed and she is at liberty to approach appropriate Forum for Redressal of her grievances against OP. She can invoke Section 14 of Limitation Act, 1963 in excluding the period of limitation spent before District Forum and before this Commission in prosecution of this complaint.
6. Arguments in this complaint were heard on 02.08.2017 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
Consumer Complaint No.64 of 2016 10
7. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER August 03, 2017.
(MM)