National Consumer Disputes Redressal
Narendra Nath Mishra vs M/S. Vaishnavi Architecht & Engg. Pvt. ... on 4 July, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3338 OF 2016 (Against the Order dated 07/09/2016 in Appeal No. 158/2015 of the State Commission Bihar) 1. NARENDRA NATH MISHRA S/O. LATE NILAMBAR MISHRA, R/O. MIMLA TOWER FLAT NO. A 14, HANUMAN NAGAR NEW PUNAICHAK, P.O. & P.S. SHASTRINAGAR DISTRICT-PATNA BIHAR ...........Petitioner(s) Versus 1. M/S. VAISHNAVI ARCHITECHT & ENGG. PVT. LTD. & 2 ORS. THROUGH ITS MANAGING DIRECTOR, SMT. USHA SHARMA, W/O. LATE ANIL SHARMA@ANIL KUMAR,C/O. DOCTOR BIBHUTI KUMAR, S/O. RAMESHWAR SINGH, VILLAGE SOUGHT TOLA, BAKHTIYAR PUR, P.O+PS. BAKHTIPUR, DISTRICT-PATNA BIHAR 2. USHA SHARMA W/O. LATE ANIL SHARMA@ANIL KUMAR, MANAGING DIRECTOR OF VIASHNAVI ARCHTECHT & ENGG. PVT. LTD.,C/O. DOCTOR BIBHUTI KUMAR, S/O. RAMESHWAR SINGH, VILLAGE SOUGHT TOLA, BAKHTIYAR PUR, P.O+P.S. BAKHTIPUR, DISTRICT-PATNA BIHAR 3. M/S. VAISHNAVI ARCHITECT & ENGG. PVT. LTD., THROUGH ITS DIRECTOR SIYA DEVI W/O. RAMESHWAR SINGH, C/O. DOCTOR BIBHUTI KUMAR, S/O. RAMESHWAR SINGH, VILLAGE SOUGHT TOLA, BAKHTIYAR PUR, P.O+P.S. BAKHTIPUR, DISTRICT-PATNA BIHAR ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. Narendra Nath, Advocate For the Respondent :
Dated : 04 Jul 2017 ORDER
This revision petition has been filed by the Petitioner, Narendra Nath Mishra against the order dated 7.9.2016 by the State Consumer Disputes Redressal Commission, Bihar ( for short, State Commission) passed in F.A. No.158 of 2015.
2. Brief facts are that on the impressive assurances given by the opposite party Smt. Usha Sharma Managing Director of M/s. Vaishnavi Architect &Engg. Pvt. Ltd. and her husband Late Anil Sharma who were engaged in building construction and selling the flats, Petitioner booked three flats alongwith three car parking, one for his wife and two for son giving booking cum advance amount from his own pocket according to need of this married family members in Bimla Tower Punaichak Patna. The builder after receiving due money for the booked flats, left the flats incomplete as well as without providing basic amenities in the flats. The petitioner put pressure on the builder who in turn instructed petitioner to complete flats with an assurance that amount spent in the completing the construction of flats would be reimbursed by the builder to the complainant soon. The petitioner demanded spent amount in construction of flats from the builder Smt. Usha Sharma and her husband who denied to reimburse. The petitioner filed F.I.R. in Shastrinagar Police Station Patna on 15.4.2007. The builder Smt. Usha Sharma and her husband Late Anil Kumar @ Anil Sharma made agreement on 7.2.2008 for payment of Rs.6,75,650/- to the petitioner and Smt. Usha Sharma issued post dated cheque of 20.4.2008 in the name of petitioner and also made agreement with the petitioner for fulfillment of necessary amenities as per PRDA Rules and turn up for registration of flats meant for petitioner wife and son but builder not complied a single term of the written agreement with the petitioner. The petitioner filed complaint petition no.60 of 2009 before District Consumer Disputes Redressal Forum Patna ( in short "the District Forum") on the basis of contract/agreement dated 7.2.2008 as well as on authorization by his wife and son which was dismissed by the learned District Forum on 27.5.2015. Aggrieved by this, the petitioner filed First Appeal No.158 of 2015 before State Commission which was also dismissed and the order of learned District Forum was affirmed vide order dated 7.9.2016.
3. Hence, the present revision petition.
4. Heard the learned counsel for the petitioner at the admission stage and perused the record.
5. The learned counsel argued that the fora below have not appreciated the fact that the son and the wife have purchased the flats out of funds of the petitioner and they have given an authority letter to father/the husband/the complainant/petitioner, still the District Forum has decided that the complainant was not a consumer and it has also dismissed the complaint on the ground of non-joinder of necessary party. The State Commission has upheld the order of the District Forum and has also dismissed appeal as well as the complaint on additional ground that complaint was not filed before the appropriate Forum having the pecuniary jurisdiction. The learned counsel stated that the only relief of Rs.19,09,172/- was sought in the complaint and therefore the complaint was well within the pecuniary jurisdiction of the District Forum. It was further submitted by learned counsel that Smt. Usha Sharma, Managing Director of Vaishnavi Architect & Engineering Pvt. Ltd. was made a party and therefore it is wrong to say that Vaishnavi Architect & Engineering Pvt. Ltd. was not made a party. Hence, there was no question of any mis-joinder of parties and the complaint was wrongly rejected on this ground.
6. Apart from these technical points, the learned counsel argued that being husband and father, the complainant had paid all the amounts in respect of the flat booked by the wife of the complainant and two flats booked by the son of the complainant. Later on, when the possession offer was made, the complainant saw that all construction work was not complete and facilities were not there. Then an FIR was lodged with the Police and finally OP Smt. Usha Sharma, Managing Director of Vaishnavi Architect & Engineering Pvt. Ltd entered into an agreement with the complainant dated 7.2.2008 that complainant would complete construction and amenities and the money so spent shall be refunded by the OP. The OP paid the requisite amount of Rs.6,75,650/- by way of cheque which was dishonored when it was presented for payment. The learned counsel stated that under these circumstances, the complainant had filed a complaint because he did not receive the amount assured under the agreement dated 7.2.2008 by the OP which is clearly deficiency in service on the part of the OP. The counsel further drew attention to Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 which read as under.
"(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 12 [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 13 [but does not include a person who avails of such services for any commercial purpose];
7. From the above, definition of 'consumer', it was explained by learned counsel for the complainant that complainant could be treated as beneficiary as mentioned in the above definition and in that capacity he is a consumer.
8. The learned counsel also stated that the complainant has also filed a suit for dishonored cheque under the Negotiable Instrument Act before the appropriate court. He claimed that under Section 3 of the Consumer Protection Act, 1986 he is entitled to avail the alternative remedy in the Consumer Forum also and therefore, his complaint should have been decided on merits by the fora below, rather than rejecting it on the basis of technical reasons.
9. I have carefully considered the arguments advanced by learned counsel for the petitioner and have examined the record. From the record, it is seen that the District Forum has observed the following in its order:
"The crux of the instant complaint petition is that the complainant's wife and son signed an agreement with the opposite parties for purchase of flats and the complainant has submitted in the petition that he financed them in this regard and both of them have authorized him to file the instant case on their behalf but from the definition given above the complainant cannot claim himself to be a "Consumer" and mere authorization by wife and son will not suffice any purpose and in no case he can claim any relief in this regard from the opposite parties as he has not produced any documents on record to show that he has bought any goods from the opposite parties for a consideration which has been paid or promised."
10. The State Commission has also affirmed the order of District Forum and it is clear that State Commission has also not found the complainant to be a consumer. In fact, consumers were the wife and son of the complainant who have not filed any complaint and they have also not given any General Power of Attorney to the complainant. The arguments of the learned counsel in respect of the complainant being a beneficiary as per the definition of 'Consumer' under Section 2(1)(d)(ii), it is seen that the beneficiary has to avail the services with the approval of the person paying for the agreed consideration. No such document has been filed in the present case to show that such approval was given to the complainant by the purchasers of the flats from the OP. Thus, in my view, the complainant is not covered as a beneficiary under this definition to be a consumer.
11. Seeing the facts from another angle, it comes out that complaint has been filed to get Rs.6,75,650/- from the OP because the cheque issued by the OP was bounced. The complainant has already sought remedy under the Negotiable Instrument Act for the same purpose. It is true that Section 3 of the Consumer Protection Act provides the proceedings under the Consumer Protection Act as an additional remedy but complainant cannot pursue two remedies simultaneously. Thus, on this ground also, the complaint is not maintainable.
12. On the basis of the above examination, I find that the fora below have rightly held that the complainant is not a consumer as defined under the Consumer Protection Act, 1986. Thus, the complaint is not maintainable. The complaint is also not maintainable on account of pursuing two remedies simultaneously one under the Consumer Protection Act and another under the Negotiable Instrument Act.
13. Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 7.9.2016 of the State Commission. Accordingly, the Revision Petition No.3338 of 2016 is dismissed in limine.
...................... PREM NARAIN PRESIDING MEMBER