National Consumer Disputes Redressal
M/S. Gaur Arunima Impex International ... vs U.P. Housing & Development Board on 11 November, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER COMPLAINT NO. 327 OF 2013 WITH I.A. No. 6522 OF 2013 & I.A. No. 6432 OF 2013 (Exemption for filing translation documents, additional fact) M/s. Gaur Arunima Impex International Pvt. Ltd. Through its Director, 71, Pandit Park, Krishna Nagar, New Delhi Complainant Versus U. P. Housing & Development Board Through its Commissioner 104, Mahatma Gandhi Marg Lucknow, Uttar Pradesh Also at : Hall No.S-1, Vasundhara Complex Sector 16-A, Vasundhara, Ghaziabad Opposite Party BEFORE: HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE DR. S. M. KANTIKAR, MEMBER For the Complainants : Mr. Karunesh Tandon, Advocate PRONOUNCED ON _11.11.2013 O R D E R JUSTICE J.M. MALIK 1. The controversy in this case is, Whether, M/s. Gaur Arunima Impex International Pvt. Ltd., is a consumer under Section 2(1)(d)(i)(ii), read with explanation appended to it?. The complainant company transacts the business of sale and purchase of land, material relating to construction, etc. U.P. Housing and Development Board, the OP deals in the development of residential colonies, along-with all related benefits for the development of public, at large. 2. The OP, vide advertisement, dated 03.07.2008 specified four plots under the Category of the Institutional Land, demarcated for offices only. In the advertisement, it was pointed out that the plots in question are without any encumbrances but the allotment of plot would be carried out subject to procedure, terms and conditions of the tendered documents.. These four plots were required to be used for offices only and specifically mentioned their area in sq.mts. along-with the raised price, per sq.mt. The complainant took part in the auction, on 15.07.2008 for plot No.14/INS/Office-3, admeasuring 1584.52 sq.mts. That plot was allotted in favour of the complainant on 12.08.2004. The total price of the plot was Rs.10,78,26,586/-. The complainant deposited the Earnest Money of 10% of the reserve price cost and rest of the amount was to be paid in instalments. 3. The complainant was shocked to note that all these plots were situated in Khasra No.433/2, Village Prahlad Garhi, and Legal heirs of Shri Om Prakash, R/o Village Prahlad Garhi, Ghaziabad, preferred a Suit, bearing No.327 of 2003, titled as Sukhbir Singh & Ors., Vs. U.P. Housing and Development Board, before Civil Judge, Jr.Division, Ghaziabad and had sought permanent and mandatory Injunction for dispossession of the land arising out of Khasra No.433/2. It was not an unencumbered land. The contention raised by Sh.Sukhbir Singh & Ors., was that their land was never acquired by the Government. The Civil Judge called report of Ameen, and it reported that the possession of the land was in exclusive possession of Sukhbir Singh & Ors. These plots are situated adjacent to BSNL Telephone Tower. The Civil Judge rejected the claim of Sukhbir Singh & Ors. and the appeal is pending. In the meantime, Sukhbir Singh & Ors, filed a Writ Petition before the High Court of Allahabad. The Honble High Court granted stay in favour of Sukhbir Singh & Ors. In view of the stay granted by the High Court, the OP was not entitled to have the Earnest Money. The OP, in the notice dated 16.11.2012, demanded an interest of Rs.4,47,99,572/- on the balance consideration of Rs.10,29,26,586/-. 4. Under these circumstances, the present complaint was filed with the following prayers :- In the aforesaid facts and circumstances, it is most respectfully prayed that this Honble Court may please to :- a. Set aside the impugned demand of interest of Rs.4,47,99,572/- out of the total demand of Rs.14,77,26,158/-, as mentioned in notice dated 16.11.2012 and further allow the complainant to deposit the balance sale consideration of Rs.10,29,26,586/- pursuant to schedule of time prescribed in the letter of allotment dated 12.08.2008, with an undertaking that no matter whatsoever is sub-judice before any Court of law with regard to the plot in question and plot in question is free from all charges/encumbrances. b. Award compensation/damages on account of escalation in the rates of material/labour after holding an enquiry as required under Order XX of Code of Civil Procedure. c. Award compensation of Rs.2.00 lacs on account of mental harassment. d.Pass an interim order directing the respondent not to cancel and further allot, sale, create, mark any third party interest in the aforesaid plot. e.Pass such and further order(s) as this Honble Court may deem fit in the present facts and circumstances. 5. We have heard the counsel for the complainant. He has invited our attention towards the Honble Supreme Courts authority, reported in Karnataka Power Transmission Corporation & Anr Vs. Ashok Iron Works Pvt. Ltd., (2009) 3 SCC 240, wherein it was held that a company is a person, within the meaning of Section 2(1)(d), read with Section 2(1)(m) of the CP Act. 6. This must be borne in mind that cause of action in this authority pertains prior to 16.04.1992, as it is apparent from para No.3 of the judgment. Thereafter, the law was amended w.e.f. 15.03.2003. The definition of consumer was wee bit enlarged or curbed. Section 2(1)(d) reads as follows:- 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 than 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. [Explanation. For the purposes 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 purposes of earning his livelihood by means of self-employment;] [EMPHASIS SUPPLIED] 7. In view of the these amendments, the complainant cannot be said to be a consumer. In the case M/s. Purusharath Builders Pvt. Ltd. Vs. M/s. Uppal Housing Ltd. & Anr., Consumer Complaint No.112 of 2012, decided by this Bench, on 05.07.2012, it was held :- 11. Learned counsel for the complainant argued that these flats will be used for the officers of the company. Learned counsel for the complainant could not deny that those officers would transact the commercial activity. A bare-look on this Resolution clearly goes to show that these flats would be meant for commercial purposes. 12. The complaint being not maintainable, is therefore, dismissed. Nothing will debar the complainant to seek remedy before the appropriate Forum, as per law. 8. Aggrieved by that order, SLP was filed by the complainant, before the Honble Supreme Court. The Honble Supreme Court in Civil Appeal Nos.8990-8991 of 2012, vide order dated 07.01.2013, held :- We have heard learned counsel for the appellants, and perused the record. We do not see any cogent reason to entertain the appeals. The judgment impugned does not warrant any interference. The Civil Appeals are dismissed. 9. In Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. IV (2010) CPJ 299 (NC), there was delay in handing over possession. The complainant was a Private Limited Company. The complainant was nominated for allotment of showroom. Possession not given. Sale Deed was not executed. Deficiency of service was alleged. It was held that even if Private Limited Co. is treated as a person, purchase of space could not be for earning for its livelihood. Purchase of space was for commercial purpose. 10. In Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India) Ltd., & Anr., Consumer Complaint No.296 of 2011, decided by National Commission, on 03.07.2012, it was held that the business of the complainant extended upto Mumbai. In order to save on the expenditure incurred on his stay, in hotels, at Mumbai, during his business trips, he was interested in buying some flats in Mumbai. He took two flats. It was held, Clearly, the transaction is relatable to his business activity and, therefore, it will fall in the category of commercial purpose, which has been taken out of the purview of the Consumer Protection Act, 1986, vide Amendment Act No.62 of 2002, effective from 15th of March, 2003. 11. Against the said order of this Commission, Special Leave Petition (Civil Appeal No. 6229 of 2012, Satish Kumar Gajanand Gupta Vs. Srushti Sangam Enterprises (I) Ltd & Anr.) was filed before the Honble Supreme Court. The Honble Apex Court dismissed the said Special Leave Petition, vide order dated 14.9.12. 12. In the instant case, the complainant has made a futile attempt to prove that it is a consumer. Para 18 of the complaint runs, as follows:- As stated herein above, the complainant is a consumer and opposite party failed to provide the requisite service as undertook while publishing the advertisement and issuing the letter of allotment, therefore, the instant complainant falls within the jurisdiction of the Honble Court. Therefore, this Honble Court has the jurisdiction to deal and try with the instant case. By mere using the word consumer, one does not become a consumer. One has to qualify all the conditions, specified in Section 2(1)(d). The complainant is conspicuously silent about the same. 13. Secondly, the complainant itself admits that they transact the business of sale, purchase of land, material relating to construction, etc. This clearly goes to show that these plots were taken for the purposes of re-sale. 14. Moreover, there is no inkling in the Resolution, which may go to show that the complainant is a consumer. The Resolution, dated 11.07.2003, runs as follows:- In the meeting of the Board of Directors held on 11.07.2013, it was resolved that Shri Sanjeev Gaur, S/o Late Shri Ved Prakash Gaur, R/o Arunima Palace, GH-4, Sector-4, Vasundhara, Ghaziabad, has been authorised to under the Company Act, 1956 and inter alia engaged in the business of sale purchase of land, material relating to construction, etc., and he can file the complaint, if required, any. 15. After evaluating the pros and cons of this case, we are of the considered view that the complainant is not a consumer. Consequently, the complaint case is hereby dismissed at the stage of admission. No order as to costs. However, the complainant can take support from the case of M/s.Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC, 583, to seek redressal of its grievances from an appropriate forum or civil court, as per law. ...
(J. M. MALIK,J.) PRESIDING MEMBER ...
(DR.S. M. KANTIKAR) MEMBER dd/17