State Consumer Disputes Redressal Commission
Lalit Kumar Chhabra vs The Managing Director, M/S Chandigarh ... on 10 March, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 23 of 2015 Date of Institution : 30.01.2015 Date of Decision : 10/03/2015 Lalit Kumar Chhabra son of Lt. Sh.Radha Kishan Chhabra, resident of House No.177/1, Sector 45-A, Chandigarh. ......Appellant/Complainant V e r s u s The Managing Director, M/s Chandigarh Royal City Promoters (P) Limited, SCO 489-490, 2nd Floor, Sector 35-C, Chandigarh. Vivek Sharma, Broker, Director, M/s Bhumi Bhawan, SCO 24, Sector 20-D, Chandigarh. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:Sh. Ranvir S. Chauhan, Advocate for the appellant.
Sh. Anish Garg, Advocate for respondent No.1.
Sh. Sandeep Bhardwaj, Advocate for respondent No.2.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 08.12.2014, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant), on the ground that the same was not maintainable, as he did not fall within the definition of a consumer. At the same time, liberty was granted by the District Forum, to the complainant, to approach the appropriate Authority/Forum, for redressal of his grievance.
The facts, in brief, are that the complainant booked 3 BHK residential flat, in the future project, to be launched by Opposite Party No.1, under the name and style of "Royal Elite", vide advance registration form dated 08.06.2011, with Opposite Party No.1, on payment of Rs.4.00 lacs, vide cheque No.019139 dated 11.06.2011. It was stated that the proposed cost of the said flat, was fixed to the tune of Rs.26,90,000/-. It was further stated that the said amount was collected by Opposite Party No.2, on behalf of Opposite Party No.1. It was further stated that, as per agreed terms and conditions, in case, Opposite Party No.1 failed to obtain necessary approvals/sanctions, from the Competent Authorities, within 12 months, from the date of booking, it was liable to refund the amount deposited, alongwith interest @12% p.a. It was further stated that Opposite Party No.1, failed to launch the said project. It was further stated that when the complainant repeatedly visited the office of Opposite Party No.1, to know about the exact date or month of launching the said project, he was informed, that the layout plan for multistory residential complex could not be approved by the State Govt. and he had started the booking of floors and commercial sites. It was further stated that when the complainant saw that there was no scope of launch of the said project, he vide letter dated 28.01.2013 Annexure C-4, requested Opposite Party No.1, to refund the amount of Rs.4 lacs, aforesaid, deposited by him, as booking amount, in respect of the residential flat, alongwith interest. It was further stated that, to the utter surprise of the complainant, he received cheque dated 30.04.2013, in the sum of Rs.4,00,000/- deposited by him, i.e. after a period of more than three months, and that too, without any interest.
It was further stated that the complainant thereafter approached Opposite Party No.1, for payment of interest on the amount of Rs.4 lacs, but to no avail. It was further stated that even legal notice dated 18.03.2014, was also served upon the Opposite Parties, 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 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay interest @12% P.A., on the amount of Rs.4 lacs, from the date of booking till realization; compensation, to the tune of Rs.50,000/-, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.18,000/-.
Opposite Party No.1, in his written version, pleaded that the consumer complaint was barred by time. It was further pleaded that the consumer complaint was not maintainable, as the complainant did not fall within the definition of "consumer" as defined under Section 2 (1) (d) (ii) of the Act. It was stated that since the complainant was involved in the business of buying and selling properties, i.e. a commercial activity, as such, the District Forum had no Jurisdiction to entertain and decide the complaint. It was further stated that Opposite Party No.1 had been authorized and granted licence by the Greater Mohali Area Development Authority (GMADA), for the development of project, in question. It was further stated that the complainant had paid the booking amount of Rs.4.00 lacs, and, thereafter, did not pay the remaining instalments, towards the said unit, as per the payment schedule, despite the fact that various reminders were sent to him. It was further stated that since the complainant was defaulter, in respect of making payment of the remaining instalments, towards the said unit, and, on the other hand, the amount of Rs.4 lacs, deposited by him, towards the said unit, had already been refunded to him, vide the cheque aforesaid, which was duly encashed by him, he had no right to file the consumer complaint. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor he indulged into unfair trade practice. The remaining averments, were denied, being wrong.
Despite service, none put in appearance, on behalf of Opposite Party No.2, as a result whereof, he was proceeded against exparte, by the District Forum, on 26.08.2014.
In the rejoinder, filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Party No.1.
The complainant and Opposite Party No.1, led evidence, in support of their case.
After hearing the Counsel for the complainant, Opposite Party No.1, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
The Counsel for the appellant/complainant, submitted that the appellant/complainant, applied for the booking of a flat, and submitted the application for expression of interest, which was accepted by respondent No.1/Opposite Party No.1. He further submitted that the moment, the appellant/complainant, submitted the application for expression of interest, for the allotment of a flat and deposited Rs.4 lacs, as booking amount, Opposite Party No.1, started rendering service to him. He further submitted that the District Forum, was wrong in holding to the contrary. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
On the other hand, the Counsel for the respondents/Opposite Parties No.1 and 2, submitted that the complainant had only moved an application, for the booking of a flat, and deposited a sum of Rs.4 lacs, towards the booking amount. They further submitted that since the complainant had not been allotted the flat, he did not fall within the definition of a consumer, and, as such, the consumer complaint was not maintainable. They further submitted that the District Forum was also right in holding so. They further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted and the case deserves to be remanded back to the District Forum, for fresh decision, on merits, for the reasons, to be recorded hereinafter. The core question, that requires consideration, is, as to whether, the complainant fell within the definition of consumer, as defined by Section 2(1)(d) of the Act. Section 2(d)(ii) and 2(o) of the Act reads as under ;
2(d)(ii) : "Consumer" means any person who-(hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promises, 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 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 purposes] 2(o): "service' means service of any description which is made available to potential (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, (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.
The perusal of the afore-extracted provisions of Section 2(d)(ii) and 2(o) clearly goes to show that service of any description, which is made available to potential users, is also a service. The complainant hired the services of the Opposite Parties, for consideration, on payment of Rs.4 lacs, as booking amount, towards the allotment of a flat. He was, thus, the potential user of the flat, which might have been allotted, to him, if the project had been floated, and, as such, he fell within the definition of a consumer. In Virender Jain Vs. Alaknanda Cooperative Group Housing Society Limited, 2013 (3) Recent A pex Judgments (R.A.J.) 528 (S.C.)= 2013 (2) R.C.R. (Civil) 980 (S.C.), it was held that by making applications, for the allotment of land, the Societies would be deemed to have hired or availed of the services of the Chandigarh Administration, and the Board, in relation to housing construction, as elucidated and explained in Lucknow Development Authority Vs. M.K. Gupta, Civil Appeal No.6237 of 1990 = III(1993)CPJ 7 (SC)= AIR 1994 787=1994 SCC (1) 243. In Chandigarh Housing Board Vs. Avtar Singh and Others, 2010 (4) RCR Civil 579 SC, the same principle of law, was laid down. Not only this, in Punjab Urban Planning and Development Authority Vs. Bhupinder Singh, 2008 CTJ 926 (SC), in pursuance of the advertisement, the applications were invited from persons, who wished to acquire High Income Group (Single Story) category houses at Phase IX, S.A.S. Nagar. They were required to deposit a sum of Rs.4,000/- each, while making such applications. The complainant therein submitted an application for the allotment of aforesaid category of house and alongwith the same deposited a sum of Rs.4000/-. In the draw of lots, he was unsuccessful. He was, however, not desirous of withdrawing the money deposited by him. In the second draw of lot, which took place later on, he was again unsuccessful. The amount deposited by him was refunded, but no interest was paid thereon, as per the terms and conditions of the advertisement, as in the present case. Feeling aggrieved, the complainant filed a consumer complaint and the District Forum granted interest @18% P.A., on the amount refunded, as also cost of litigation to the tune of Rs.550/-. An appeal was filed, before the State Consumer Disputes Redressal Commission, which was also dismissed. Thereafter, Revision Petition, filed before the National Consumer Disputes Redressal Commission, New Delhi, was also dismissed. Still feeling aggrieved, the Punjab Urban Development Authority (PUDA) filed Civil Appeal No.7727 of 2002, in the Hon'ble Supreme Court. An argument was advanced by the Counsel for the appellant that the complainant had no vested right of allotment, unless he had succeeded in the draw of lots. It was also argued that since the complainant had not been allotted the house, there was no question of deficiency, in rendering service, on the part of PUDA, and, as such, complaint under the Consumer Protection Act, was not maintainable. The Hon'ble Supreme Court rejected this argument of the Counsel for the appellant, and held that the complainant was entitled to interest, but reduced the same from 18% P.A. to 10% P.A. It means that the District Forum, State Consumer Disputes Redressal Commission, National Consumer Disputes Redressal Commission, and the Hon'ble Supreme Court, in the aforesaid case, considered the complainant as a consumer, found the Opposite Party, as deficient, in rendering service, and, it was only, on account of this reason, that interest was ordered to be granted, on the amount deposited, which had already been refunded. Not only this, in the Tamil Nadu Housing Board and Anr. Vs. A.V. Ramakrishna, III (1994) CPJ 137 (NC), a case decided by a three Member Bench of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, it was held that a potential user who applied for the allotment of a flat/plot, and deposited the registration fee, fell within the definition of a consumer, as the Opposite Parties started rendering service, to him/her, right from the day, the application for the same was moved. In Haryana Urban Development Authority Vs. Smt. Veena Kakkar, II (1995) CPJ 43 (NC), a three Member Bench of the National Commission held that the process of rendering service commenced when HUDA invited applications for the allotment of plot and in response to that offer, persons apply for the same with necessary deposits. Accordingly, it was ruled in the said case that the complainant fell within the definition of a consumer. In Skyline Construction and Housing Pvt. Ltd. Vs. Kumar Selvaraj and another, Revision-Petition No.380 of 2011, decided on 01.03.2011, by the National Commission, the same view was reiterated. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the instant case. In the instant case also, as stated above, the complainant moved an application, for the allotment of a flat, and deposited the booking amount, to the tune of Rs.4 lacs, which was ultimately refunded to him. The complainant, thus, hired the services of the Opposite Parties, as potential user, for consideration, and, thus, he fell within the definition of a consumer, under Section 2(1)(d) of the Act. The submission of the Counsel for the appellant, in this regard, therefore, being correct, are affirmed.
No doubt, the District Forum, placed reliance on B.K. Prabha Vs. Secretary Kendriya, 2004 (1) CPJ 127 and Dayanand & Others Vs. DLF Universal Ltd., 2006 (1) CPC 366 , decided by the National Consumer Disputes Redressal Commission, New Delhi, while dismissing the consumer complaint, holding that mere moving of an application for the allotment of a flat/plot did not give any right to allotment, and, as such, the complainant did not fall within the definition of a consumer. However, in view of the principle of law, laid down, by the Hon'ble Supreme Court in Punjab Urban Planning and Development Authority's, Virender Jain's , Lucknow Development Authority's, Chandigarh Housing Board's cases (supra), decided by the Hon'ble Supreme Court any contrary principle of law, laid down by the National Consumer Disputes Redressal Commission, New Delhi, in B.K. Prabha 's and Dayanand 's cases (supra), shall not hold the field. It is, therefore, held that the complainant/appellant fall within the definition of a consumer. The District Forum was, thus, wrong in dismissing the consumer complaint, holding that the same was not maintainable, as the complainant did not fall within the definition of a consumer.
It may be stated here that this Commission has only decided the limited point, as to whether a person who applies for the allotment of a plot/flat and deposited booking amount/earnest money, and is not allotted the same, falls within the definition of a consumer or not. This Commission has not decided the question, as to whether, the complainant booked the flat for commercial purpose or not. Since the case is being remanded back to the District Forum for fresh decision, this question is left open to be adjudicated upon by it (District Forum) on the basis of evidence, on record.
In view of the discussion, we are of the considered opinion, that the order impugned is liable to be set aside, and the matter deserves to be remanded back to the District Forum, for deciding the same afresh, on merits.
For the reasons recorded above, the appeal is accepted, with no order as to costs. The order impugned is set aside. The matter is remanded back to the District Forum, with a direction to decide the consumer complaint afresh, on merits, in accordance with the provisions of law, keeping in view the observations made in para no.15 above.
The parties are directed to appear before District Forum (I) on 16.03.2015 at 10.30 A.M., for further proceedings.
The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 16.03.2015 at 10.30 A.M. Certified copies of this order, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
10.03.2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg