National Consumer Disputes Redressal
Mehmooda Sheikh vs M/S. Distinct Infrastructure Ltd. & 3 ... on 14 March, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2962 OF 2015 (Against the Order dated 12/08/2015 in Appeal No. 1581/2014 of the State Commission Madhya Pradesh) WITH IA/1978/2016 1. MEHMOODA SHEIKH HIG-5, SHIVAJI NAGAR, BHOPAL M.P ...........Petitioner(s) Versus 1. M/S. DISTINCT INFRASTRUCTURE LTD. & 3 ORS. 115, DM TOWER, RACE COURSE RAOD, INDORE MANAGING DIRECTOR M.P 2. RAMAKANT VIJAYVARGIYA, S/O LATE SRI BAPULAL VIJAYVARGIYA. S/O SRI BAPULAL VIJAYVARGIYA, MANAGING DIRECTOR,DIST INFRASTRUCTURE LTD., CF-12,SCHEME NO-74,C, VIJAY NAGAR INDORE M.P 3. M/S SRIRAM BUILDCON PVT LTD., MAHAJAN MARKET SEETHBARI NAGPUR,(MAH), DIRECTOR PRAMOD CHICHGHRAY, S/O KESHAVA CHICHGHRAY, DHRAMPATH, NAGPUR MAHARASHTRA 4. M/S DISTINCT INFRASTRUCTURE LTD PANCHWATI ROAD, BHOPAL M.P ...........Respondent(s) REVISION PETITION NO. 2963 OF 2015 (Against the Order dated 12/08/2015 in Appeal No. 1582/2014 of the State Commission Madhya Pradesh) WITH
IA/1978/2016 1. MEHMOODA SHEIKH HIG-5, SHIVAJI NAGAR BHOPAL M.P ...........Petitioner(s) Versus 1. M/S. DISTINCT INFRASTRUCTURE LTD. & 3 ORS. 115, DM TOWER, RACE COURSE RAOD, INDORE MANAGING DIRECTOR M.P 2. RAMAKANT VIJAYVARGIYA, S/O LATE SRI BAPULAL VIJAYVARGIYA. /O SRI BAPULAL VIJAYVARGIYA, MANAGING DIRECTOR,DIST INFRASTRUCTURE LTD., CF-12,SCHEME NO-74,C, VIJAY NAGAR INDORE M.P 3. M/S SRIRAM BUILDCON PVT LTD., MAHAJAN MARKET SEETHBARI NAGPUR,(MAH), DIRECTOR PRAMOD CHICHGHRAY, S/O KESHAVA CHICHGHRAY, DHRAMPATH, NAGPUR MAHARASHTRA 4. M/S DISTINCT INFRASTRUCTURE LTD., PANCHWATI ROAD, BHOPAL M.P ...........Respondent(s) REVISION PETITION NO. 2964 OF 2015 (Against the Order dated 12/08/2015 in Appeal No. 1583/2014 of the State Commission Madhya Pradesh) WITH IA/1978/2016 1. MEHMOODA SHEIKH HIG-5, SHIVAJI NAGAR, BHOPAL M.P ...........Petitioner(s) Versus 1. M/S. DISTINCT INFRASTRUCTURE LTD. & 3 ORS. 115, DM TOWER, RACE COURSE RAOD, INDORE MANAGING DIRECTOR M.P 2. RAMAKANT VIJAYVARGIYA, S/O LATE SRI BAPULAL VIJAYVARGIYA. S/O SRI BAPULAL VIJAYVARGIYA, MANAGING DIRECTOR,DIST INFRASTRUCTURE LTD., CF-12,SCHEME NO-74,C, VIJAY NAGAR INDORE M.P 3. M/S SRIRAM BUILDCON PVT LTD., MAHAJAN MARKET SEETHBARI NAGPUR,(MAH), DIRECTOR PRAMOD CHICHGHRAY, S/O KESHAVA CHICHGHRAY, DHRAMPATH, NAGPUR MAHARASHTRA 4. M/S DISTINCT INFRASTRUCTURE LTD., PANCHWATI ROAD, BHOPAL MAHARASHTRA ...........Respondent(s) REVISION PETITION NO. 2965 OF 2015 (Against the Order dated 12/08/2015 in Appeal No. 1584/2014 of the State Commission Madhya Pradesh) WITH IA/1978/2016 1. MEHMOODA SHEIKH HIG-5, SHIVAJI NAGAR, BHOPAL M.P ...........Petitioner(s) Versus 1. M/S. DISTINCT INFRASTRUCTURE LTD. & 3 ORS. 115, DM TOWER, RACE COURSE RAOD, INDORE MANAGING DIRECTOR M.P 2. RAMAKANT VIJAYVARGIYA, S/O LATE SRI BAPULAL VIJAYVARGIYA. S/O SRI BAPULAL VIJAYVARGIYA, MANAGING DIRECTOR,DIST INFRASTRUCTURE LTD., CF-12,SCHEME NO-74,C, VIJAY NAGAR INDORE M.P 3. M/S SRIRAM BUILDCON PVT LTD., DIRECTOR PRAMOD CHICHGHRAY, S/O KESHAVA CHICHGHRAY, DHRAMPATH, NAGPUR MAHARASHTRA 4. M/S DISTINCT INFRASTRUCTURE LTD., PANCHWATI ROAD, BHOPAL M.P ...........Respondent(s) REVISION PETITION NO. 2966 OF 2015 (Against the Order dated 12/08/2015 in Appeal No. 1585/2014 of the State Commission Madhya Pradesh) WITH IA/1978/2016 1. MEHMOODA SHEIKH HIG-5, SHIVAJI NAGAR, BHOPAL M.P ...........Petitioner(s) Versus 1. M/S. DISTINCT INFRASTRUCTURE LTD. & 3 ORS. 115, DM TOWER, RACE COURSE RAOD, INDORE MANAGING DIRECTOR M.P 2. RAMAKANT VIJAYVARGIYA, S/O LATE SRI BAPULAL VIJAYVARGIYA. S/O SRI BAPULAL VIJAYVARGIYA, MANAGING DIRECTOR,DIST INFRASTRUCTURE LTD., CF-12,SCHEME NO-74,C, VIJAY NAGAR INDORE M.P 3. M/S SRIRAM BUILDCON PVT LTD., MAHAJAN MARKET SEETHBARI NAGPUR,(MAH), DIRECTOR PRAMOD CHICHGHRAY, S/O KESHAVA CHICHGHRAY, DHRAMPATH, NAGPUR MAHARASHTRA 4. M/S DISTINCT INFRASTRUCTURE LTD., PANCHWATI ROAD, BHOPAL MAHARASHTRA ...........Respondent(s) REVISION PETITION NO. 2967 OF 2015 (Against the Order dated 12/08/2015 in Appeal No. 1586/2014 of the State Commission Madhya Pradesh) WITH IA/1978/2016 1. ABDUL HAMEED SHAIKH HIG-5, SHIVAJI NAGAR, BHOPAL M.P ...........Petitioner(s) Versus 1. M/S. DISTINCT INFRASTRUCTURE LTD. & 3 ORS. 115, DM TOWER, RACE COURSE RAOD, INDORE MANAGING DIRECTOR M.P 2. RAMAKANT VIJAYVARGIYA, S/O LATE SRI BAPULAL VIJAYVARGIYA. S/O SRI BAPULAL VIJAYVARGIYA, MANAGING DIRECTOR,DIST INFRASTRUCTURE LTD., CF-12,SCHEME NO-74,C, VIJAY NAGAR INDORE M.P 3. M/S SRIRAM BUILDCON PVT LTD., DIRECTOR PRAMOD CHICHGHRAY, S/O KESHAVA CHICHGHRAY, DHRAMPATH, NAGPUR MAHARASHTRA 4. M/S DISTINCT INFRASTRUCTURE LTD., PANCHWATI ROAD, BHOPAL M.P ...........Respondent(s) REVISION PETITION NO. 2968 OF 2015 (Against the Order dated 12/08/2015 in Appeal No. 1587/2014 of the State Commission Madhya Pradesh) WITH IA/1978/2016 1. ABDUL HAMEED SHAIKH THROUGH LR ZAKIR HUSSAIN SHAIKH, H.I.G. 5, SHIVAJI NAGAR, BHOPAL M.P. ...........Petitioner(s) Versus 1. M/S. DISTINCT INFRASTRUCTURE LTD. & 3 ORS. BY MANAGING DIRECTOR, 115, DM TOWER, RACE COURSE ROAD INDORE M.P. 2. RAMKANT VIJAYV ARGIYA S/O LATE SRI BAPULAL VIJAYVARGIYA MANAGING DIRECTOR DIST. INFRASTRUCTURE LTD. CF-12, SCHEME NO. 74, C VIJAY NAGAR INDORE M.P. 3. M/S SRIRAM BUILDCON PVT. LTD MAHAJAN MARKET SEETHABARI NAGPUR(MHA) DIRECTOR PRAMOD CHICHGHRAY S/O KESHAV CHICHGHRAY, DHRAMPATH, NAGPUR MAHARASHTRA 4. M/S DISTINCT INFRASTRUCTURE LTD. PANCHVATI ROAD, BHOPAL M.P. ...........Respondent(s) REVISION PETITION NO. 2969 OF 2015 (Against the Order dated 12/08/2015 in Appeal No. 1588/2014 of the State Commission Madhya Pradesh) WITH IA/1978/2016 1. ABDUL HAMEED SHAIKH HIG-5, SHIVAJI NAGAR, BHOPAL M.P ...........Petitioner(s) Versus 1. M/S. DISTINCT INFRASTRUCTURE LTD. & 3 ORS. 115, DM TOWER, RACE COURSE RAOD, INDORE MANAGING DIRECTOR M.P 2. RAMAKANT VIJAYVARGIYA, S/O LATE SRI BAPULAL VIJAYVARGIYA. S/O SRI BAPULAL VIJAYVARGIYA, MANAGING DIRECTOR,DIST INFRASTRUCTURE LTD., CF-12,SCHEME NO-74,C, VIJAY NAGAR INDORE M.P 3. M/S SRIRAM BUILDCON PVT LTD., MAHAJAN MARKET SEETHBARI NAGPUR,(MAH), DIRECTOR PRAMOD CHICHGHRAY, S/O KESHAVA CHICHGHRAY, DHRAMPATH, NAGPUR MAHARASTHRA 4. M/S DISTINCT INFRASTRUCTURE LTD., PANCHWATI ROAD, BHOPAL MAHARASHTRA ...........Respondent(s) REVISION PETITION NO. 2970 OF 2015 (Against the Order dated 12/08/2015 in Appeal No. 1589/2014 of the State Commission Madhya Pradesh) WITH IA/1978/2016 1. ABDUL HAMEED SHAIKH HIG-5, SHIVAJI NAGAR, BHOPAL M.P ...........Petitioner(s) Versus 1. M/S. DISTINCT INFRASTRUCTURE LTD. & 3 ORS. 115, DM TOWER, RACE COURSE RAOD, INDORE MANAGING DIRECTOR M.P 2. RAMAKANT VIJAYVARGIYA, S/O LATE SRI BAPULAL VIJAYVARGIYA. S/O SRI BAPULAL VIJAYVARGIYA, MANAGING DIRECTOR,DIST INFRASTRUCTURE LTD., CF-12,SCHEME NO-74,C, VIJAY NAGAR INDORE M.P 3. M/S SRIRAM BUILDCON PVT LTD., MAHAJAN MARKET SEETHBARI NAGPUR,(MAH), DIRECTOR PRAMOD CHICHGHRAY, S/O KESHAVA CHICHGHRAY, DHRAMPATH, NAGPUR MAHARASHTRA 4. M/S DISTINCT INFRASTRUCTURE LTD., PANCHWATI ROAD, BHOPAL M.P ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Ritesh Khare, Advocate With Ms. Sadhana Pathak, Advocate For the Respondent :
Dated : 14 Mar 2016 ORDER JUSTICE J.M. MALIK
1. This order shall decide all the cases detailed above. Two complainants, belonging to one family, separately, filed complaints against the same Promoter/Builder - OPs, as mentioned above. It is not out of place to mention here that the entire family lives in one House, i.e., HIG, 5-Shivaji Nagar, Bhopal. They are accustomed to live in one house, from the time immemorial.
2. It was argued that Smt. Mehmooda Sheikh has got five sons and two daughters. Out of five sons, three are residents of foreign countries. There is no inkling in the evidence on record that they have any intention to return to their country.
3. M/s. Distinct Infrastructure Ltd., OP1, transacts the business of selling plots to public, after developing the residential colonies. Sh. Ramkant Vijayvargiya, OP2, is the Managing Director of the Company, OP1. The complainants executed the following agreements dated 22.02.2009 with the local office of the company, Dil Platinum Plaza, 4th Floor, Mata Mandir, Panchwati Phase-I, Bhopal, for taking a completely developed plot in Panchwati Enclave, Phase-3, Village-Laukheri, Airport Road, Bhopal, as follows :
RP 2962/2015COMPLAINANT OP AGREEMENT IN FAVOUR OF DT. OF AGREEMENT AREA - SQ.FT.
TOTAL CONSD.
BOOKING AMT IN (RS.) PLOT NO.
SMT. MEHMOOD SHEIKH DIST. INFRASTRUCTRE LTD. & ORS.
DR. ZAKIR HUSSAIN A. SHEIKH, SMT. SANOBAR ZAKIR HUSSAIN & SMT. MEHMOODA ABDUL HAMEED SHEIKH 22.02.2009 2,700 13,77,000/-
4,50,000/-
A-02 RP 2963/2015 COMPLAINANT OP AGREEMENT IN FAVOUR OF DT. OF AGREEMENT AREA SQ.FT.
TOTAL CONSD.
BOOKING AMT IN (RS.) PLOT NO.
SMT. MEHMOOD SHEIKH DIST. INFRASTRUCTRE LTD. & ORS.
SAJID HUSSAIN & SMT. MEHMOODA A. SHEIKH 18.12.2007 2400 11,04,000/-
4,50,000/-
A-70 RP 2964/2015 COMPLAINANT OP AGREEMENT IN FAVOUR OF DT. OF AGREEMENT AREA - SQ.FT.
TOTAL CONSD.
BOOKING AMT IN (RS.) PLOT NO.
SMT. MEHMOOD SHEIKH DIST. INFRASTRUCTRE LTD. & ORS.
ZAKIR HUSSAIN A SHAIEKH & SMT. MEHMOODA A. SHEIKH 21.02.2009 2700 11,61,000/-
1,50,000/-
A-61 RP 2965/2015 COMPLAINANT OP AGREEMENT IN FAVOUR OF DT. OF AGREEMENT AREA - SQ.FT.
TOTAL CONSD.
BOOKING AMT IN (RS.) PLOT NO.
SMT. MEHMOOD SHEIKH DIST. INFRASTRUCTRE LTD. & ORS.
DR. NASIR HUSSAIN & SMT. MEHMOODA A. SHEIKH 18.02.2007 2400 11,04,000/-
2,00,000/-
A-69 RP 2966/2015 COMPLAINANT OP AGREEMENT IN FAVOUR OF DT. OF AGREEMENT AREA - SQ.FT.
TOTAL CONSD.
BOOKING AMT IN (RS.) PLOT NO.
SMT. MEHMOOD SHEIKH DIST. INFRASTRUCTRE LTD. & ORS.
DR. NASIR HUSSAIN SHAIKH & SMT. MEHMOODA ABDUL HAMEED SHAIKH 07.11.2007 2000 8,00,000/-
8,00,000/-
B-133 RP 2967/2015 COMPLAINANT OP AGREEMENT IN FAVOUR OF DT. OF AGREEMENT AREA - SQ.FT.
TOTAL CONSD.
BOOKING AMT IN (RS.) PLOT NO.
ABDUL HAMID SHEIKH DIST. INFRASTRUCTRE LTD. & ORS.
ABDUL HAMEED SHAIKH & SH. NASIR HUSSAIN SHEIKH 05.05.2006 2700 6,14,250/-
6,14,250/-
A-25 RP 2968/2015 COMPLAINANT OP AGREEMENT IN FAVOUR OF DT. OF AGREEMENT AREA - SQ.FT.
TOTAL CONSD.
BOOKING AMT IN (RS.) PLOT NO.
ABDUL HAMID SHEIKH DIST. INFRASTRUCTRE LTD. & ORS.
ABDUL HAMEED SHAIKH & SH. ZAKIR HUSSAIN SHEIKH 05.05.2006 2700 6,14,250/-
6,14,250/-
A-20 RP 2969/2015 COMPLAINANT OP AGREEMENT IN FAVOUR OF DT. OF AGREEMENT AREA - SQ.FT.
TOTAL CONSD.
BOOKING AMT IN (RS.) PLOT NO.
ABDUL HAMID SHEIKH DIST. INFRASTRUCTRE LTD. & ORS.
ABDUL HAMEED SHAIKH & SH. SAJID HUSSAIN SHEIKH 05.05.2006 2700 6,14,250/-
6,14,250/-
A-41 RP 2970/2015 COMPLAINANT OP AGREEMENT IN FAVOUR OF DT. OF AGREEMENT AREA - SQ.FT.
TOTAL CONSD.
BOOKING AMT IN (RS.) PLOT NO.
ABDUL HAMID SHEIKH DIST. INFRASTRUCTRE LTD. & ORS.
ABDUL HAMEED SHAIKH & SH. NASIR HUSSAIN SHEIKH 05.05.2006 2700 6,14,250/-
6,14,250/-
A-41
4. The said plots were allotted to the complainants. The said agreements were made to execute the Sale Deeds within a period of three years. The complainant(s) deposited the amount detailed above, for each of the plot.
5. At a subsequent stage, it transpired that the plot allotted to them are not registered in the name of the OPs. It was registered in the name of other persons. Criminal cases relating to the land are pending before the Additional District Magistrate, Bhopal. It is alleged that the OPs have received the whole amount(s) but are hesitating to handover the possession and have committed deficiency in service.
6. The OPs 1 & 2 admitted having executed the above said agreements. They have further explained that they had made it clear to the complainants that the complete project was to be developed in joint venture with M/s. Shriram Buildcon Pvt. Ltd., OP3. Again, the OPs have filed a Suit for Specific Relief Performance against Defendant No.23 before the District Sessions Court. The complainants have also filed complaint against the OPs before the Police Station.
7. Both the fora below have dismissed all the complaints. The State Commission at Para No.7 of its judgment dated 12.08.2015, passed in FA No.1581/2014 (against which RP 2962/2015 has been filed before this Commission), has observed, as under :-
"We considered upon the arguments of the learned counsel for the appellant and meticulously perused the record of the Forum. On perusal of the documents produced before the Forum by the appellant, it is undisputedly proved that the land in dispute is not registered in the name of the non-appellants. In the present case, on the issue of possession of the lands in dispute, it comes in light that the proceedings under Section 145/146 of the Criminal Procedure Code have been made before the Court of Additional District Magistrate, Bhopal, and possession of the land in dispute has been given in Superdgi of the police. Thus, when the land in dispute is not in the ownership and possession itself of the non-appellants / defendants, it is clearly proved that this is not the case of the category of Service Provider and Service Receiver (beneficiary). Besides above, on perusal of record of the Forum, it is also proved that the appellant/complainant, in his own name and in the names of his other family members, has himself deposited the amount to buy many other plots also besides the plot in dispute. Therefore, this conclusion of the Forum that the appellant/complainant is not a consumer itself of the non-appellants/ defendants, is appropriate".
8. There are only two complaints. It is difficult to fathom, why did the family need nine plots plus, one house, where they are residing, nowadays. The facts of these cases speak for themselves.
9. We enquired from the counsel for the petitioners/complainants, why do they need so many plots? He submitted that these plots are required for the complainant(s)' sons and daughters. Had the intention of the petitioners/ complainants been fair, she/he would have purchased the same, in her/his individual name, that too, 4 to 5 plots only. There is no custom in this country that plots are given to their daughters, after marriage. The names of their daughters were not specifically mentioned. Even the names of the sons also find no place therein. The proper course was that all the plots should have been purchased in the individual name of each of the prospect owner. One who pays the amount oneself may not allow the other to interfere. The possibility of selling those plots on profit basis cannot be ruled out. It must be borne in mind that we are dealing with the Muslim family.
10. 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".
11. In Sunil Gupta Vs. Today Homes and Infrastructure Pvt. Ltd., decided on 03.02.2014, at paras 7 & 8 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.
12. This Commission, in the case of Jagmohan Chabra and another Vs. DLF Universal Ltd., IV (2007) CPJ 199, in a somewhat similar case, held that the complaint was not maintainable, under the Consumer Protection Act, 1986. It had, therefore, disposed the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Hon'ble Supreme Court as Civil Appeal No. 6030-6031 of 2008, filed before the Supreme Court which stands dismissed, vide Apex Court's order dated 29.09.2008".
12. We also took the same view in RP Nos. 1627/2015 & 1628/2015, titled M/s. TDI Infrastructure Pvt. Ltd. (Formerly, Intime Promoters (P)) Vs. Rajesh Jain, decided on 01.12.2015.
13. Consequently, it does not prove that the petitioners/complainants are 'consumers'. Moreover, the question of title is involved in these cases. Criminal cases are also pending. All these cases involve intricate questions of facts and law. There is a dispute between the OPs and the previous owner, inter se. The relevant documents and the concerned witnesses would be required to depose in these cases. This is not just simply, a dispute between the parties. We are of the opinion that these cases cannot be decided in a summary fashion.
14. In the result, we hereby dismiss all the revision petitions and give liberty to the complainants to seek redressal of their grievances before the Civil Court or any other Forum/Tribunal, having the jurisdiction of these cases, as per law. The petitioners/ complainants can seek the benefit of limitation from the law laid down in the celebrated judgment of the Hon'ble Supreme Court, reported in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER