State Consumer Disputes Redressal Commission
Dr. Bindra Mahesh Ayyar vs Aakash Builders And Developers on 4 July, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/16/66
Dr.Brinda Mahesh Ayyar
R/o.Doctors Quarters,
Shri Balaji Hospital
Bazar Ward, Virar East 402 306 .....Complainant
Versus
1.Aakash Builders & Developers
Through its partner
Mr.Vinod S.Purandare
Aakash Builders, Ground floor
Gagan Solitaire CHS
Manvelpada,
Virar (east) 401 305
And also at
1/13, Zaveri Building
305/309, Raja RamMohan Roy Road
Mumbai 400 004
2. Vasai Janata Sahakari Bank Ltd.
Bhagwat Wada, Parnaka
Vasai West 401 201
And branch office
At Bhagwati Plaza, 1st floor
Veer Sawarkar Marg .........Opponents
Virar East 401 303
Consumer Complaint No.CC/16/67
Dr.Mahesh Sivaraman Ayyar
R/o.Doctors Quarters,
Shri Balaji Hospital
Bazar Ward, Virar East 402 306 .....Complainant
Versus
1.Aakash Builders & Developers
Through its partner
Mr.Vinod S.Purandare
Aakash Builders, Ground floor
Gagan Solitaire CHS
Manvelpada,
Virar (east) 401 305
And also at .........Opponents
1/13, Zaveri Building
1
305/309, Raja RamMohan Roy Road
Mumbai 400 004
2. Vasai Janata Sahakari Bank Ltd.
Bhagwat Wada, Parnaka
Vasai West 401 201
And branch office
At Bhagwati Plaza, 1st floor
Veer Sawarkar Marg
Virar East 401 303
BEFORE: Smt.Usha S.Thakare, Presiding Judicial Member
P.B.Joshi, Judicial Member
Per Hon'ble Smt.Usha S. Thakare, Presiding Judicial Member
Consumer complaint bearing no.CC/16/66 is filed by complainant - Dr.Brinda Mahesh Ayyar against the opponent by alleging deficiency in service and unfair trade practice. The consumer complaint is filed to direct the opponent to pay sum of Rs.20,72,877/- towards loss, damages and expenses incurred by the complainant, to direct the opponent to pay sum of Rs.34 lakhs towards additional amount of interest. The complainant has also claimed costs of litigation from the opponent. The complainant had purchased flat nos.101 & 102 (in her name) and flat no.201 (in joint name) from the project of the opponent for the consideration of Rs.17,76,000/-, Rs.9,75,500/- and Rs.27,51,500/- respectively.
2. Consumer complaint bearing no.CC/16/67 is filed by complainant - Dr.Mahesh Sivaraman Ayyar against the opponent by alleging deficiency in service and unfair trade practice. The consumer complaint is filed to direct the opponent to pay sum of Rs.21,34,302/- towards loss, damages and expenses incurred by the complainant, to direct the opponent to pay sum of Rs.51 lakhs towards additional amount of interest. The complainant has also claimed costs of litigation from the opponent. The complainant had purchased flat nos.103 & 104 (in his name) and flat no.201 (in joint name) from the project of the opponent for the consideration of Rs.14,57,500/-, Rs.17,76,000/- and Rs.17,76,000/- respectively i.e. total consideration Rs.50,09,500/-.
23. Heard learned Advocate Mrs.D.D.Raut for the complainants and learned advocate Ms.Swati Sagvekar for opponent no.1 and learned advocate Ms.Rashmi Manne for opponent no.2 on admission of consumer complaints.
4. Both the opponents have raised objection on the maintainability of consumer complaints by filing detailed reply. It is urged on behalf of opponents that the complaints are misconceived. The complainants are not consumers. They have purchased the flats for setting up another hospital. They have purchased the flats for 'commercial purpose'. They will not fall within the definition of 'consumer' as defined under section 2(1)(d) of Consumer Protection Act, 1986. Their dispute does not fall within the definition of 'consumer dispute'. Consumer complaints are barred by law of limitation. The present complaints being abuse of process may not be admitted.
5. It is admitted fact that both the complainants are doctors and they run medical profession. Complainant -Dr.Brinda Mahesh Ayyar is wife of Dr.Mahesh Sivaraman Ayyar. Both husband and wife have purchased 5 flats from the project of opponent no.1. They are practicing as medical practitioners from the last 30 years. Complainant -Dr.Brinda Mahesh Ayyar had purchased flat nos.101 & 102 in D-wing, 1st floor, Gagan Solitaire, Viva Jangid Complex, Manvel Pada Road, Virar (East), Thane 401 305 and flat no.201 in D-wing, 2nd floor, Gagan Solitaire, Viva Jangid Complex, Manvel Pada Road, Virar (East), Thane 401 305. Flat no.201 stands in the joint name of Dr.Brinda Mahesh Ayyar and Dr.Mahesh Sivaraman Ayyar.
6. Complainant- Dr.Mahesh Sivaraman Ayyar had purchased flat nos.103 & 104 in D-wing, 1st floor, Gagan Solitaire, Viva Jangid Complex, Manvel Pada Road, Virar (East), Thane 401 305 and flat no.201 in D-wing, 2nd floor, Gagan Solitaire, Viva Jangid Complex, Manvel Pada Road, Virar (East), Thane 401 305. Flat no.201 stands in the joint name of Dr.Brinda Mahesh Ayyar and Dr.Mahesh Sivaraman Ayyar. The flats were purchased 3 by obtaining loan from opponent no.2 bank.
7. Admittedly, the complainants have purchased more than one unit. It is the grievance of complainants that flat no.204 was shown but without consent possession of flat no.201 was allotted to them.
8. It is urged on behalf of the complainants that family of the complainants is a big family and, therefore, they were in need of more than one unit/flat. Learned counsel Smt.Sagvekar for opponent no.1 has drawn our attention to letter i.e. 'Exhibit-A' written by Dr.Mahesh Sivaraman Ayyar to Town Planning Authority and harped upon the fact that the request of the complainant would show that flats were purchased for 'commercial purpose'.
9. Perused the letter dated 02/05/2012. It is written by Dr.Mahesh Sivaraman Ayyar to Deputy Director, Town Planning, Virar Vasai Municipal Corporation. The request letter is written on the letterhead of Shree Balaji Hospital. The subject of request letter is 'change of residential to commercial plan'. The contents of the said letter are as under:-
"We are having Shree Balaji Hospital in Virar (east) in front of Railway station for over 30 years. We are doing all the National programme and Vaccination programmes and are reporting about it regularly to your medical department. We have plans for starting a new hospital in Manvelpada in Virar East.
We have booked 4 adjacent flats on 1st floor of Gagan Solitaire
-D wing where we plan to open the hospital.
The society (of Gagan Solitaire) wants change of residential to commercial purpose to be approved by the VVMC. Hence give us permission for the necessary modification to be made and help us in getting the approval."
10. The letter prima facie shows intention of the complainants to run hospital at booked flats at 'Gagan Solitaire'. The complainants also sent 4 letters to opponent no.1. Those letters were received by opponent no.1 on 17/03/2016. The complainants informed to opponent no.1/builder that they wanted to make necessary changes in flats as per their interior designer without disturbing building structure. They requested for permission of opponent for interior work.
11. The complainants have purchased more than one unit. It prima facie appears that they want to start the hospital and accordingly, they requested the Municipal Corporation for permission to change in use. Now the crucial question is whether they can be termed as 'consumer'?
Section 2(1)(d) of the Consumer Protection Act, 1986 runs as under:-
"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]"5
12. While deciding Appeal no.1219 of 2014 on 5th February 2015 (Indrajit Dutta v/s. Samriddhi Developers Pvt.Ltd.), Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in para 6 observed as under:-
"Learned counsel for respondent has placed reliance on judgment of this Commission in [III (2012) CPJ 315] Chilkuri Adarsh v. Ess Ess Vee Constructions in which it was held that when a consumer has booked more than one unit of residential premises, it amounts to booking of such premises for commercial purposes. This Commission in [IV (2007) CPJ 199] Jagmohan Chabra and Anr. v. DLF Universal Ltd. also observed that when complainant has booked two flats on 2 floors he does not fall within the purview of the consumer. This Commission in Consumer Complaint No. 5 / 2014 and 6 / 2014, Sunil Gupta vs. Today Homes & Infrastructure (Pvt.) Ltd. observed that consumer cannot book two different villas. In the light of the aforesaid judgments it becomes clear that as complainant has purchased two flats, it cannot be said to be for his residential purpose but amounts to be investment for commercial purpose and complainant does not fall within purview of the consumer. Learned State Commission has not committed any error in allowing application and dismissing complaint as not maintainable."
13. While deciding consumer complaint no.111 of 2012 (Chilukuri Adarsh Satyanarayana Murthy v/s. M/s.Ess Ess Vee Constructions ) on 02/07/2012, Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in para 3 observed 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 6 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. This Commission in the case of Jag Mohan Chhabra & Anr. V. DLF Universal Ltd. [IV (2007) CPJ 199 (NC)] in a somewhat similar case had held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed of the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Honble Supreme Court as Civil Appeal No.6030-5031 of 2008 filed before the Supreme Court stands dismissed vide the Apex Courts order dated 29.09.2008. In the facts of the present case, we maintain the same view and while dismissing the complaint as not maintainable reserve the right of the complainant to approach the appropriate Civil Court to seek his remedy, if so advised. He may take advantage of the ruling of the Supreme Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute [II (1995) CPJ 1 (SC)] to seek exclusion of the time spent in prosecuting this complaint before this Commission."
14. In the case in hand, the complainants have booked five big flats. They have booked more than one unit of residential premises. In view of the above rulings, we are of the view that it amounts to booking of flats for investment/commercial purpose. The complainants cannot be termed as 'consumers'. The complainants can approach appropriate Civil Court to seek their remedy. The complainants are not consumers and their consumer 7 complaints are not tenable before Consumer Fora. We are not inclined to admit the consumer complaints. Hence, consumer complaints are not admitted. Parties to bear their own costs.
Pronounced on 4th July, 2017.
[USHA S.THAKARE] PRESIDING JUDICIAL MEMBER [P.B.JOSHI] JUDICIAL MEMBER Ms 8