State Consumer Disputes Redressal Commission
Harcharan Singh Bedi vs 1. M/S Taneja Developers And ... on 8 February, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 30 of 2012 Date of Institution : 29.05.2012 Date of Decision : 08.02.2013 Harcharan Singh Bedi, son of Sh. Harnam Singh Bedi, resident of H.No.1379, Sector 40B, Chandigarh. Complainant V e r s u s 1. M/s Taneja Developers and Infrastructure Ltd., Regd. Office 9, Kasturba Gandhi Marg, New Delhi, through its Managing Director. 2. TDI LIMITED 1098-99, Sector 22-D, Chandigarh, through its Branch Manager/Authorized Signatory. 3. TDI City, Sector 110-111, Landran Banur Road, Mohali, through its Authorized Signatory. 4. M/s S.G. Real Estates, SCO No. 361, Sector 32, Chandigarh, through its Proprietor. .... /Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER
Argued by: Sh. Ramandeep Singh Pandher, Advocate for the complainant.
Sh.
S.K. Monga, Advocate for Opposite Parties No.1 to 3.
Opposite Party No.4 exparte.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
The facts, in brief, are that the complainant approached Opposite Party No.4 i.e. M/s S.G. Real Estates, an authorized Agent of Opposite Parties No.1 to 3, for the purchase of a built up commercial showroom, for the sale consideration of Rs.1,31,00,000/-. It was stated that the complainant, having retired from the Punjab University, Chandigarh, was not getting any pension. It was further stated that the complainant wanted to purchase the aforesaid built up commercial showroom, with a view to earn his livelihood. After going through the brochure, supplied by Opposite Party No.4, on behalf of Opposite Parties No.1 to 3, the complainant agreed to book a built up commercial showroom, in Mohali, at Landran Banur Road, where the office of Opposite Party No.3, was situated. A sum of Rs.25 lacs, as booking amount, in respect of the built up commercial showroom, in Mohali, was paid by the complainant, in the local office of Opposite Party No.3, on 15.10.2008, the receipt, whereof, Annexure C-1 was issued by the Opposite Parties, on 31.12.2008. It was further stated that it was represented by the Opposite Parties, that they would handover physical possession of the said built up commercial showroom, within 2 years. Initially, the documents were executed by the complainant, on his part and the same were retained by the Opposite Parties, with an excuse, that the same were to be got signed, from their Delhi Office. They further represented that, after the said documents were signed, the same would be handed over to the complainant, by mentioning the date of booking therein, and the date on which, the possession of built up commercial showroom, was to be delivered. However, no documents were later on, handed over to the complainant, despite a number of letters, having been written by him, to them. The Opposite Parties, however, vide letter dated 29.04.2011, asked the complainant, to deposit another sum of Rs.14,63,733/-. In response thereto, the complainant categorically mentioned that the said amount would not be deposited by him, until and unless, the Opposite Parties, handed over the documents of property. The complainant further requested the Opposite Parties, to specify the date, by which the delivery of possession of the built up commercial showroom, would be handed over, to him. He also asked them, to specify the date, when the Buyer`s Agreement and other documents, shall be supplied to him, but to no avail. It was further stated that the complainant was ready and willing to deposit the remaining amount, subject to the condition, that the Opposite Parties hand over the documents, referred to above, and specify the date, regarding the delivery of possession of the built up commercial showroom. However, the Opposite Parties were neither ready to specify the date, regarding the delivery of possession of the built up commercial showroom, nor were ready to handover the documents, aforesaid. It was further stated that, when the documents were neither supplied to the complainant, nor the possession of the built up commercial showroom, was delivered to him, by the stipulated date, left with no other alternative, the complainant requested the Opposite Parties, to refund the amount, deposited by him, towards the part price of the said built up commercial showroom, alongwith interest, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.25 lacs, alongwith interest @21% P.A., from the date of deposits, till realization; pay compensation, in the sum of Rs.5 lacs, for mental agony, physical harassment and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.22,000/-.
2. Opposite Parties No.1 to 3, in their joint written version, pleaded that the complaint was not maintainable. It was further pleaded that the complaint was based on misrepresentation and concealment of true facts. It was further pleaded that the complainant booked a built up commercial showroom, for the purpose of investment i.e. for commercial purpose, with a view to gain huge profits, and, as such, he did not fall within the definition of a consumer, as defined under Section 2(1)(d) of the Act. The booking of a built up commercial showroom, was admitted. Payment of Rs.25 lacs, as booking amount, against the said built up commercial showroom, was also admitted. It was, however, stated that since, the complainant failed to pay the amount of installments, as per the payment plan, he was defaulter, and, as such, no blame lay, on the shoulders of the Opposite Parties. It was further stated that, as such, the complainant was not entitled to the refund of amount, deposited by him. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
3. In the replication, filed by the complainant, he reasserted all the averments, contained in the written version. A specific plea was taken, in the replication, by the complainant, that Annexure R-1, the application form dated 30.09.2008, produced by the Opposite Parties, was never signed by him. He further specifically stated, in the replication, that his signatures were forged on Annexure R-1, by the Opposite Parties, with a view to create false evidence. It was further pleaded, in the replication that a bare perusal of the signatures of the complainant, on Annexure R-1, showed that the word formation thereof, was totally different, from his actual signatures. Alongwith the replication, he also submitted his affidavit.
4. Notice sent to Opposite Party No.4, was received back, with the report of refusal. Refusal amounted to a due service. No legally authorized representative, on behalf of Opposite Party No.4, put in appearance, as a result whereof, it was proceeded against exparte.
5. The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.
6. Opposite Parties No.1 to 3, in support of their case, submitted the affidavit of Sh. Sanyam Dudeja, their authorized signatory, by way of evidence, alongwith which, a number of documents were attached.
7. We have heard the Counsel for the complainant, Opposite Parties No.1 to 3, and, have gone through the evidence and record of the case, including the replication filed by the complainant, carefully.
8. The first question, that falls for consideration, is, as to whether, this Commission, has Jurisdiction, to entertain and decide the complaint, especially, when a specific allegation of forgery of signatures of the complainant, on Annexure R-1, application form, produced by the Opposite Parties, was made in the replication, and an attempt was made to prove the same, by way of filing an affidavit, in the shape of evidence. In other words, serious allegations of forgery and cheating were levelled by the complainant, against the Opposite Parties. In Oriental Insurance Company Ltd. Vs Munimahesh Patel 2006(2)CPC668(SC), Reliance Industries Ltd. Vs United India Insurance Co. Ltd.I(1998)CPJ13, a case decided by a four Member Bench of the National Consumer Commission and M/s Singhal Swaroop Ispat Ltd. Vs United Commercial Bank 111(1992)CPJ 50, a case decided by a three member Bench of the National Commission, it was held that when there are allegations of forgery, fraud and cheating, adjudication whereof, requires elaborate evidence, the same cannot be decided by a Consumer Fora, proceedings before which, are summary in nature. In Oriental Insurance Company Ltd.s case(supra),there was a dispute, about the disclosure of information, incorporated in the proposal form. Two copies of the proposal form were produced. In one copy of the proposal form, the insured stated that she was working as a teacher, whereas, in the other copy of the proposal form, it was stated that she was a housewife. The insured, thus, on the basis of such information, obtained the policy. The insured died. When the claim was filed by her legal representatives, the same was repudiated, on the ground of a false disclosure of information, by the insured, in the proposal form. The District Forum, accepted the complaint, which was filed by the legal representatives of the deceased insured. The State Commission set aside the order of the District Forum, on the ground, that there was dispute of disclosure made, in the proposal form, and the information given and, as such, the facts being disputed and of complicated nature, the complainant should take appropriate proceedings for establishing his claim, and for seeking the reliefs in the Court of competent jurisdiction. Feeling aggrieved, a revision petition, was filed before the National Consumer Disputes Redressal Commission, which accepted the same, holding that the information disclosed by the insured, had no nexus with her death and, as such, restored the order of the District Forum. Feeling aggrieved, the Oriental Insurance Company Ltd., filed Civil Appeal bearing No.4091 of 2006. The Honble Supreme Court held that the proceedings before the Commission were essentially summary in nature. It was further held that the factual position was required to be established by documents. It was further held that in view of the complex factual position, the matter could not be examined, by the Consumer Foras, and the appropriate forum, was the Civil Court. In Reliance Industries Ltd.s case (supra), it was held that when the questions of fraud and cheating are involved, in regard to the claim of the complainant, which require thorough scrutiny, including the examination of various documents and supporting oral evidence, the Consumer Fora cannot adjudicate upon the matter. It was further held that the questions of fraud, cheating and conspiracy, could be satisfactorily resolved, by the Civil Court.
Similar principle of law, was laid down, in M/s Singhal Swaroop Ispat Ltd.s case (supra) decided by the National Commission. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case.
9. Since, the complex and disputed facts, in dispute, are involved in the complaint, as to whether, the application form, Annexure R-1, produced by the Opposite Parties, bears the signatures of the complainant, or the same were forged, with a view to create false evidence, in our considered opinion, for proving the same, thorough analysis of documents, and elaborate examination of the witnesses and their cross-examination is required. Such issue, therefore, could not be adjudicated upon, by this Commission, in the proceedings, which are summary in nature, before it. It was not that mere allegation of forgery of his signatures, referred to above, was levelled by the complainant, against the Opposite Parties, but he also attempted to prove the same, by way of affidavit. Thus, only the Civil Court could decide such complex and disputed questions. It is, therefore held that this Commission has no Jurisdiction, to entertain and decide the complaint.
10. The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined under Section 2(1)(d) or not? For proper decision of this question, the provisions of Section 2(1)(d) and Section 2(I)(o), defining the consumer and service respectively are extracted 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)[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 then the person who [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 [but does not include a person who avails of such services for any commercial purpose]; Added by Act 62 of 2002 w.e.f. 15.03.2003.
[Explanation.
For the purposes of this sub-clause "commercial purpose" does not include use by a consumer of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood, by means of self-employment;] Section 2(1)(o) defines service as under:-
(o) "service" means service of any description which is made available to potential 16[users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
11. Admittedly, in the instant case, the complainant applied for a built up commercial showroom, for a total consideration of Rs.1,31,00,000/-. There is, no dispute, about the factum, that a sum of Rs.25 lacs, as booking amount, against the said built up commercial showroom, was deposited by the complainant, with the Opposite Parties. No doubt, in paragraph number 1 of the complaint, it was stated by the complainant, that he intended to purchase the said built up commercial showroom, with a view to adjust/settle himself, in order to earn his livelihood, as he is a retired employee of the Punjab University, Chandigarh, and is not getting any pension. He deposited a sum of Rs.25 lacs, on 30.09.2008. Now, it is the year 2013. Nothing was mentioned, in the complaint, or in evidence, submitted by way of affidavit, by the complainant, as to which business, he wanted to start, in the built up commercial showroom aforesaid. He did not state, in the complaint, as to what he was doing, after his retirement, in the year 2007 upto 2013, and how he was earning his livelihood, when he was not getting pension, from the Punjab University, Chandigarh, wherefrom, he retired. The plea taken up by the complainant, in the complaint, that he intended to purchase the said built up commercial showroom, i.e. the commercial space, with a view to adjust/settle himself, in order to earn his livelihood, is further belied from the factum, that earlier also the complainant filed a similar complaint, bearing no.22 of 2012 on 30.04.2012. In that complaint, he did not state even a single word, that he intended to purchase the aforesaid built up commercial showroom, with a view to adjust/settle himself, in order to earn his livelihood. Thereafter, that complaint was dismissed, as withdrawn on 08.05.2012, on the basis of the statement made by the Counsel for the complainant, with liberty to file a fresh one.
Since, no averment was made by the complainant, in the earlier complaint, bearing no. 22 of 2012 filed on 30.04.2012, that he intended to purchase the aforesaid built up commercial showroom, with a view to adjust/settle himself, in order to earn his livelihood, in the instant case, which was filed by him, after about 22 days of the dismissal of the previous complaint, he intentionally made an improvement, to the effect, that he intended to purchase the aforesaid built up commercial showroom, with a view to adjust/settle himself, in order to earn his livelihood. This plea, taken by the complainant, in the instant complaint, thus, could be said to be an afterthought. The price of the built up commercial showroom, in question, is Rs.1,31,00,000/-. It, therefore, could be said that the complainant intended to purchase the aforesaid built up commercial showroom, by way of investment, to resell the same, as and when, there was escalation, in the prices of the real estate, but, when no escalation stood registered, in the market, of such properties, he filed the Consumer Complaint, for refund of the amount. The complainant, thus, availed of the services of the Opposite Parties, for commercial purpose, to earn huge profits. In Economic Transport Organization Vs.Charan Spinning Mills (P) Ltd., & Anr., I (2010) CPJ 4 (SC), a Constitution Bench of the Hon`ble Supreme Court held that if the goods are purchased or the services are availed of, by the complainant, for any commercial purpose, then it does not fall within the definition of a consumer, and consequently, the consumer complaint will not be maintainable, in such cases. In Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd. 2011 (1) SCC 525 and Sanjay D.Ghodawat Vs. R.R.B.Energy Ltd., IV (2010) CPJ 178 (NC), a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, New Delhi, similar principle of law, was laid down. In Shri Harnam Singh Vs. Shalimar Estate Pvt. Ltd. and Others, Revision Petition No.1129 of 2012, decided on 29.05.2012 (NC), the complainant applied for a showroom, the price whereof was Rs.80 lacs. Alleging deficiency on the part of the Opposite Party, he filed a Consumer Complaint. The State Consumer Disputes Redressal Commission, Haryana, Panchkula, held that the complainant did not fall within definition of a consumer, and, as such, dismissed the complaint, being not maintainable. The National Consumer Disputes Redressal Commission, New Delhi, dismissed the Revision-Petition, holding that the showroom was intended to be purchased, by the complainant, for commercial purpose. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. It is, therefore, held that since the complainant does not fall within the definition of a consumer, the Consumer Complaint is not maintainable.
12. No other point, was urged, by the Counsel for the complainant, and Opposite Parties No.1 to 3.
13. For the reasons recorded above, the Complaint is dismissed, with no order as to costs, being not maintainable.
14. The complainant shall, however, be at liberty, to resort to any other remedy, which may be available to him, for redressal of his grievance, under the provisions of law.
15. Certified Copies of this order be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion Pronounced.
February 8, 2013 Sd/-
[JUSTICE SHAM SUNDER(RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg