State Consumer Disputes Redressal Commission
Vikas Sahakari Bank Ltd, Solapur vs M/S Kasturi Builders & Devlopers on 22 May, 2024
1 A/154/2020
Date of filing: 01.02.2020
Date of order: 22.05.2024
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, BENCH AT AURANGABAD.
FIRST APPEAL NO. : 154 OF 2020
IN COMPLAINT CASE NO.: 77 OF 2018
DISTRICT CONSUMER COMMISSION: LATUR.
Vikas Sahakari Bank Ltd,. Solapur, Appellant
Branch Latur, (Adv. S. T. Agrawal)
Through its Branch Manager,
Market Yard, Latur.
VERSUS
M/s Kasturi Builders and Developers, Respondent
Through its Proprietor, (Ex-parte)
Dattatraya Marutirao Parshuram,
R/o Mitra Nagar, Latur.
CORAM: Milind S. Sonawane, Hon'ble Presiding Member.
Dr. Nisha Amol Chavhan, Hon'ble Member.
Nagesh C. Kumbre, Hon'ble Member.
JUDGMENT
(Delivered on 22/05/2024) Per Dr.Nisha Amol Chavhan, Hon'ble Member.
The Appellant has challenged in this appeal, the Order and Judgment passed by the Ld. District Consumer Disputes Redressal Commission, Latur dated 23/09/2019 in CC. No. 77/2018.
2. At the outset, it is important to mention here that, in the present appeal, as per the postal track report, on dated 2 A/154/2020 9/2/2021; respondent has duly served but not given appearance before this commission. As such on 23/11/2023, matter preceded ex-party against respondent.
3. The facts giving rise to this appeal are as under.
4. Appellant submitted that, appellant decided to purchase one flat bearing No.207 admeasuring 55.95 square meters on second floor constructed in the building namely Yogiraj Apartment by the respondent on 16/10/2015, accordingly the respondent executed registered Sale Deed in the favour of appellant. For that purpose, appellant has paid entire consideration of Rs.15, 00,000/- to the respondent before execution of the final sale Deed.
5. Appellant further submitted that, symbolic possession was given by the respondent, further respondent agreed to complete the entire construction work of building and internal work of the flat under sale and to hand over the actual and physical possession of the flat in the month of March-2016. But respondent failed and neglected to complete the construction work of the building and also internal work of the flat and as such the appellant was unable to use flat and appellant requested for time again to the respondent to compete the work and hand over the possession of the flat.
3 A/154/2020
6. Appellant also further submitted that, respondent did not handover the possession and not completed the internal work of the flat as such the appellant filed the Consumer Complaint before the Ld. District Consumer commission Latur on 3/4/2018.
7. Ld. District Consumer commission Latur has issued notice to the respondent. In spite of service of notice of the Ld. District commission Latur, respondent remained the absent, therefore Ld. District commission Latur passed the ex-party order against the respondent.
8. Ld. District Commission Latur has dismissed the complaint holding that, flat under sale is purchased by the complainant for commercial purpose and such complainant is not a consumer is defined under the consumer protection Act- 2019.
9. Being aggrieved and dissatisfied with the judgment and order on dated 23/9/2019, passed by Ld. District Consumer Redressal Commission, Latur, appellant filed this appeal before this commission.
10. Adv. S. T. Agrawal appeared for appellant. Respondent has duly served but not given appearance hence on 23/11/2023, 4 A/154/2020 matter preceded ex-party against respondent. Accordingly we heard Ld. Adv. S. T. Agrawal for the appellant.
11. Ld. Adv. S. T. Agrawal mentioned that, flat was purchased by the appellant bank for the residence of their employee; there is no any earnings from that flat. Even Ld. District Consumer Redressal Commission, Latur, in the finding of the judgment at clause No.4 specifically held that by way of registered Deed, the appellant has purchased the flat and paid entire agreed consideration and same is accepted by the respondent and as such appellant falls within the definition of consumer. Ld. Adv. S.T. Agrawal relied on the judgment of Lilavati Kirtilal Mehta Medical Trust vs M/S unique Shanti Developers and ors. (Civil Appeal No.12322/2016). Ld. Adv.S.T.Agrawal mentioned that appellant bank is the consumer. Therefore appeal may be allowed.
12. We perused the record and documents placed on record. This commission has made following observation.
OBSERVATION
13. Against this background, we perused the copy of the Complaint and written version given by the Appellant in original proceedings before the District Consumer Commission Latur. We have also gone through the impugned judgment. It is found 5 A/154/2020 that, there is error committed by the Ld. District Consumer Commission Latur, on the factual and legal aspects.
14. The National Consumer Disputes Redressal Commission (NCDRC) in matter of Springdale Core Consultants Pvt Ltd vs Pioneer Urban Land and Infrastructure Ltd ( Law NCD- 2020-7-49) decided on 14th July 2020, has clarified that a company that purchases a house for use of its employees also comes under the category of a consumer.
"If a residential house / plot is purchased / booked by a company for the personal use of its Directors or employees and the house / plot so purchased / booked is either used solely for the personal purposes for the Directors or employees of the company or it is used primarily for the purposes of the Directors / employees of the company and incidentally for the purposes of the company, the company which has booked / purchased the house / plot is a consumer within the meaning of the Section 2(1)(d) of the Consumer Protection Act, or not," NCDRC said.
Clearing the ambiguity regarding the term consumer, NCDRC said that "It would thus be seen that the legal status of the buyer be it a company, a partnership firm, a society, an Association of Persons or an individual is not relevant for deciding whether the buyer is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act or not, the relevant factor being the purpose for which the residential plot / house is bought or booked by the buyer," it said in the matter. "If a house/residential plot is booked or purchased by a company for the personal residential use of the employees of the company, the 6 A/154/2020 purchase/booking is not linked to the regular profit generating business activities of the company, and therefore it cannot be said that the residential plot/house is bought or booked by the company for a commercial purpose," it said.
15. We opinioned that, it clearly implies that appellant cannot evade the law. In view of the foregoing, it is evident that, the appellant is a "consumer" under the Act who had booked the flat in question for the use of its employees and had paid of the sale consideration to the Opposite Party.
16. In view of the above, impugned judgment and order passed by District Consumer Disputes Redressal Commission, Latur dated 23/09/2019 in CC. No. 77/2018 is quashed and set aside. Further, it is directed to the respondent, to complete the construction as per terms and condition as mentioned in the Sale Deed and handover the possession of the flat within 6 months of this judgment. As well as directed to the respondent to pay the amount of Rs.50,000/- to the appellant for the mental and physical harassment and amount of Rs.10,000/- for cost of appeal. Hence, we pass the following order.
ORDER
1. Appeal is allowed.
2. The impugned judgment and order dated 23/09/2019, passed by the Ld. District Consumer Commission Latur in C.C. No.77/2018 is quashed and set aside.
7 A/154/2020
3. It is directed to the respondent, to complete the construction as per terms and condition given in Sale Deed and handover the possession of the flat within 6 months of this judgment.
4. It is directed to the respondent, to pay the amount of Rs.50,000/- to the appellant for the mental and physical harassment and amount of Rs.10,000/- for cost of appeal.
5. Copies of the judgment are supplied to both the parties free of cost.
N.C.Kumbre Dr.N.A.Chavhan M.S.Sonawane
Member Member Presiding Member
UNK