State Consumer Disputes Redressal Commission
Bhojram Verma vs B.M.Vatsalya Builders & Developers ... on 5 July, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2016/85
Instituted on : 12.01.2017
Bhojram Verma, S/o Late Awadhram Vrma,
Aged about 56 years,
R/o : Village Kukurdih, Post - Balodabazar,
District Balodabazar (C.G.) ... Complainant.
Vs.
1. Local Branch Manager,
Vatsalya Builders & Developers Pvt. Ltd.,
Block B-1, Pujari Chambers, Pachpedi Naka,
Raipur, District Raipur, Pin Code - 492001 (Chhattisgarh).
2. Chief Manager,
Vatsalya Builders & Developers Pvt. Ltd.
Block - 201, Ganesh Chamber,
Mahediya Square, Dhantoli,
Nagpur (Maharashtra) Pin Code - 440012. .... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri A.K. Pathak, Advocate for the complainant.
Shri P.C. Paul and Shri B.R. Barik, Advocate for the opposite parties.
ORDER
Dated : 05/07/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
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(i) To direct the OPs to pay a sum of Rs.58,40,000/-
(Rupees Fifty Eight Lakhs Forty Thousand), which was deposited by the complainant with the OPs towards the development of land.
(ii) To direct the OPs to pay interest @ 15% monthly on Rs.58,40,000/-.
(iii) To direct the OPs to pay Rs.50,000/- (Rupees Fifty Thousand) towards compensation for financial loss and mental agony to the complainant.
(iv) To direct the OPs to pay Rs.20,000/- (Rupees Twenty Thousand) towards advocate fees and cost of litigation to the complainant.
(v) Any other relief which the Hon'ble Commission deems fit and proper, may also be awarded to the complainant from the OPs.
2. Briefly stated the facts of the complaint of the complainants are that on being information given by the O.P. No.1, the complainant contacted the O.P. No.1. The O.P. No.1 gave details / particulars regarding layout and also shown him layout. The complainant went to the plot along with O.P. No.1. The complainant saw that near the plot one house had already been constructed and drains have also been constructed. The O.P. No.1 carried out plotting in different parts and // 3 // electric poles and transformers were also fitted there. The O.P. No.1 told the complainant that it is first phase and booking had already over. The O.P. No.1 proposed the complainant for second phase Vatsalya Gaurav and gave details regarding the road, layout and drains etc. The complainant believed on the version of the O.P. No.1 and booked plot No.126, 127, 128, 129, 130, 134, 135, 136, 137 and 138. The complainant had regularly deposited installments on 16.11.2011, 02.01.2012, 05.03.2012, 30.03.2012, 30.05.2012, 01.07.2012, 14.08.2012, 17.09.2012 and 03.02.2014. The complainant deposited total amount of Rs.58,40,000/- with the O.P. No.1. The complainant asked the O.P. No.1 regarding transfer and diversion papers, but the O.P. No.1 avoided and did not show documents regarding plots to the complainant. The complainant submitted an application to the O.P. No.1 on 16.06.2015. Thereafter the complainant came to know that the plots which were booked by the OPs in favour of the complainant, were not in the ownership of the O.P. No.1 and the same were in the ownership of Silver Developers. The O.P. No.1 committed cheating with the complainant. The complainant asked the O.P. No.1 to refund the amount back to him, but the O.P. No.1 avoided and did not refund the amount. The O.P. No.1 gave written assurance that the O.P. No.1 will refund the amount along with interest but the O.P. No.1 did not refund the amount, therefore, the complainant sent legal notice to the O.P. No.1, but the notice returned with endorsement "left". Hence // 4 // the complainant filed instance complaint and prayed for granting reliefs as prayed in the complaint. The complainant is entitled to get the reliefs as sought in the relief clause of the complaint.
3. The OPs have filed their written statement and averred that the OPs had engaged the Sales Executive and the services of the Executives are taken for booking the plots in the layout of the OPs on the commission basis and the said Sales Executive take the customer to the site at the time of booking and the prospective purchasers being satisfied with the location and the documents of title booked the plots. The papers for sanctioning of the layout were submitted to the Town and Country Planning Authority by the OPs. The Executives of the OPs take the customers to the layout and provide the relevant documents of title, layout map, etc. and the customers being satisfied with the title of the OPs, booked the plots. The question of refunding the amount with the alleged interest @ 15% is applicable only if the OPs drops the project for any reasons whatsoever, however the present project is not yet dropped by the OPs and in respect of the present project the dispute between the land owner and OPs is pending before the Hon'ble High Court, Bilaspur and the OPs being a law abiding, are anxiously waiting for the reliefs from the Hon'ble High Court. The OPs have obtained Injunction orders against the Land Owners from the learned District Court, Raipur and the said order is also challenged by the land owner before the Hon'ble High Court. However, the land // 5 // owners are not made party in the present dispute by the complainant, who are necessary party to the present complaint. The present complaint therefore suffers from non-joinder of necessary party. The booking of plot by the complainant and the payments made towards the sale consideration is a matter of record as the OPs have issued the valid receipts to the complainants as and when the payments are made by the complainant, hence the complainant may be put to strict proof in respect of the payments made by him. The complainant after verifying all the documents of title of the OPs and all other relevant documents have booked the plots. The complainant was aware that the land was owned by M/s Silver Developers and the OPs have entered into an Agreement to Sale dated 12.08.2011 with M/s Silver Developers in respect of the lands bearing Khasra Nos.180/1, 207/1, 207/3, 180/2, 213/2-3, 218, 212/1, 181/1, 180/4, 208/1, 181/3, 208/2, 182/2, 213/1, 180/3, 214/1, 219, 171/9, 171/4, 1/1, and ½, total land admeasuring about 11.544 Hrs.R. (i.e. equivalent to 28.513 Acres) Mouza Village Sezbahar, P.H. No.119/50, P.H. BNo.119/51, Tahsil Raipur and District Raipur (Chhattisgarh State) and the owners had authorized the OPs to develop the land and enter into agreement to sale with the prospective purchasers and receive the sale consideration from the prospective purchasers and accordingly the OPs have developed the land and booked the plots in favour of the prospective purchasers. The authorities given by M/s Silver Developers to the // 6 // OPs, is a matter of record and the same shall be read and interpreted accordingly. As per the agreement to sale between the OPs and the land owner M/s Silver Developers, it was specifically agreed that M/s Silver Developers shall obtain the necessary permissions and sanctions from the sanctioning authorities and it has obtained all the requisite sanctions. There was some delay in getting the sanctions due to the sanctioning authorities. The original owners had raised some dispute in respect of the aforesaid properties and the OPs had filed an Arbitration Application bearing No.137-A/2015 (M/s Vatsalya Builders & Developers Pvt. Ltd. Vs. M/s Silver Developers & 10 others) before the learned District Court, Nagpur and the said application came to be allowed by the learned District Judge, Raipur vide order dated 17.06.2016. The said order is challenged by the owners by filling an Arbitration Appeal No.55 of 2016 (M/s Silver Developers & 10 Others Vs. Vatsalya Builders & Developers Pvt. Ltd.) before the Hon'ble High Court of Chhattisgarh at Bilaspur and the same is pending for final arguments. The OPs have also filed an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 before Hon'ble High Court of Chhattisgarh, Bilaspur for appointment of Arbitrator, which was registered as Arbitration Application No.53 of 2015 - (M/s Vatsalya Builders & Developers Pvt. Ltd. - Vs. M/s Silver Developers & 10 others). The said application is also pending before Hon'ble High Court of Chhattisgarh at Bilaspur // 7 // for final hearing. In view of the pendency of the aforesaid application and appeal, the OPs have to wait for the decisions of the aforesaid matters and only after the decisions the OPs will be able to execute and register the sale deeds. The OPs are running from one Court to the other to protect the interest of all the prospective purchasers. The complainant has booked ten plots with the OPs and entered into 10 separate agreements on different dates upon the terms and conditions mentioned in the said agreements. The complainant has filed the instant complaint in respect of all ten agreements executed on different dates, which is not maintainable under any provision's of the law and also under the Consumer Protection Act. The complainant has booked ten plots as an Investment and the complainant does not come within the definition of "Consumer"" and the provisions of the Consumer Protection Act, 1986 is not application and the instant complaint itself is not maintainable before this Commission for want of jurisdiction and the complaint itself deserves to be dismissed with heavy cost. The complainant had not personally meet with the OPs and requested to refund the entire amount paid by him, along with interest as alleged. The complainant is aware of the pendency of the cases before the learned District Court, Raipur and also in respect of matters pending before the Hon'ble High Court of Chhattisgarh, at Bilaspur and the sale deeds cannot be executed and registered during the pendency of the said cases. The complainant has filed the instant // 8 // complaint alleging false and frivolous allegations against the OPs with ulterior motive and malafide intentions and to pressurise the OPs for refund of the amount invested by the complainant. The OPs have not cheated the complainant and have not committed any deficiency in service. Due to pendency of the legal matter in respect of the alleged plots between the OPs and the land owner, it cannot be said that the OPs have committed any deficiency in service. The OPs are bound by the terms and conditions of the agreement to sale and accordingly they will execute and register the sale deed once the matter are decided by Hon'ble Courts. During the pendency of the said cases the OPs are unable to execute and register the sale deed. The complainant is pressurising the OPs to refund the amount. The OPs have invested the amount received from the prospective purchasers including the complainant in the alleged property and the OPs are not in a position to refund the amount as claimed by the complainant unless and until the matter pending before the Hon'ble High Court are decided, the sale deeds cannot be executed. Only after, the matter before the Hon'ble High Court, Bilaspur are decided, the OPs will be able to get the sale deeds executed and registered, hence the complainant is not entitled for the reliefs as claim in the instant complaint. The OPs have entered into an Agreement to Sale dated 12.08.2011 with the Land Owner and M/s Silver Developers as consenting party in respect of land admeasuring 11.54 hrs. R. out of the Khasra, situated at Shejbahar, // 9 // P.H. 119/50, Tahsil and District Raipur. As per the terms and conditions of the agreement, M/s Silver Developers have got the layout sanctions from the Town & Country Planning as per the authority given to the OPs, the OPs had booked the plots out of the aforesaid layout with the prospective purchasers. The OPs have not done anything against the interest of the complainant and all other prospective purchaser, but OPs are trying to get the land cleared and execute and register the sale deed in favour of the prospective purchasers. The OPs have issued the valid receipts towards the payments received from time to time. The disputes pending before the Hon'ble High Court, Bilaspur between the OPs and the original land owners Silver Developers, the development work is stopped and the OPs from time to time informed the complainant about the pendency of the Arbitration Application before the Hon'ble High Court, Bilaspur and their difficulties in further development and execution and registration of the sale deed in favour of the complainant and other prospective purchasers. Both the parties herein are bound by the terms and conditions mentioned in the agreement to sale and the OPs will comply with the same once the legal and technical problems in respect of the aforesaid land is settled with the original land owners. All the sanctions in respect of the development of the aforesaid layout has been obtained, accordingly, the OPs were developing the aforesaid layout. Due to some disputes raised between the land // 10 // owners M/s Silver Developers and the OPs, now the matter is pending before the Hon'ble High Court for the appointment of Arbitration being Application No.53/2015 (M/s Vatsalya Builders & Developers Vs. M/s Silver Developers & 10 others) for final arguments. The OPs have also filed an application for grant of Injunction against the Land Owner and M/s Silver Developers bearing Application No.137- A/2015 (M/s Vatsalya Developers Vs. M/s Silver Developers & 10 others) before the District Court and the District Court after hearing the parties was pleased to grant the reliefs as sought by the OPs, vide order dated 17.06.2016 and restrained M/s Silver Developers from any further transactions with third party. The order passed by the District Court, Raipur is also challenged by the original land owners before the Hon'ble High Court, Bilaspur by filing an Arbitration Appeal No.55 of 2016. The Hon'ble High Court, Bilaspur fixed both the matters for Final Arguments and it is pending for final arguments. The OPs due to legal matters being pending before the Hon'ble Courts could not develop the land and execute the sale deeds in favour of the respective purchasers. The OPs have invested the amount received from the prospective purchasers towards the purchase of the aforesaid land and fighting the legal battle with the Land Owners to protect the interest of prospective purchasers and upon clearance of the same, the sale deeds of the respective plots shall be executed in favour of the respective purchasers. The OPs have not committed any deficiency in // 11 // service and the OPs are ready to perform as per the terms and conditions mentioned in the agreement to sale once the legal matters with the land owners are settled. The complainant is not entitled for the refund as claimed. The OPs have appraised the difficulties and about the pendency of the cases before the Hon'ble High Court and its difficulties in execution and registration of the sale deed. The OPs shall execute and register the sale deed once the cases pending before the Hon'ble High Court, Bilaspur are decided. The OPs are bound to protect the interest of all the customers, who had booked the plots with the OPs and shall execute and register the sale deeds in favour of the respective purchasers. The complaint be dismissed against the OPs.
4. The complainant has filed documents. Annexure A-1 is Agreement executed between Vatsalya Builders and Developers Pvt. Ltd. & Mr. Bhoj Ram Verma on 05.03.2012, Annexure A-2 is Agreement executed between Vatsalya Builders and Developers Pvt. Ltd. and Mr. Bhoj Ram Verma on 02.01.2012, Annexure A-3 is Agreement executed between Vatsalya Builders and Developers Pvt. Ltd. and Mr. Bhoj Ram Verma on 02.01.2012, Annexure A-4 is Agreement executed between Vatsalya Builders and Development Pvt. Ltd. and Mr. Bhojram Verma on 02.01.2012, Annexure A-5 is Agreement executed between Vatsalya Builders and Developers Pvt. Ltd. & Mr. Bhoj Ram Verma on 05.03.2012, Annexure A-6 is // 12 // Agreement executed between Vatsalya Builders and Developers Pvt. Ltd. & Mr. Bhoj Ram Verma on 05.03.2012, Annexure A-7 is Agreement executed between Vatsalya Builders and Developers Pvt. Ltd. & Mr. Bhoj Ram Verma on 02.01.2012, Annexure A-8 is Agreement executed between Vatsalya Builders and Developers Pvt. Ltd. & Mr. Bhoj Ram Verma on 02.01.2012, Annexure A-9 is Agreement executed between Vatsalya Builders and Developers Pvt. Ltd. & Mr. Bhoj Ram Verma on 02.01.2012, Annexure A-10 is Agreement executed between Vatsalya Builders and Developers Pvt. Ltd. & Mr. Bhoj Ram Verma on 05.03.2012, Annexure A-11 is map, Annexure A-12 is map, Annexure A-13 to A-22 are receipts issued by Vatsalya Builders and Developers Pvt. Ltd. in favour of Verma Bhoj Ram on different dates, Annexure A-23 to A-72 are receipts issued by Vatsalya Builders and Developers in favour of Mr. Verma Bhojram on various dates, Annexure A-73 is receipt issued by Vatsalya Builders and Developers in favour of Mr. Sen Dukhawa Ram on 03.02.2014, Annexure A-74 to A-76 are letters dated 28.05.2014 sent by Vatsalya Builders and Developers P. Ltd. to Mr. Verma Bhoj Ram, Annexure A- 77 is letter dated 16/06/2015 sent by the complainant to Vatsalya Builders and Developers P. Ltd. Raipur (C.G.), Annexure A-79 is registered notice dated 03.10.2016 sent by Shri Amod Kumar Pathak, Advocate on behalf of the complainant to the OPs, Annexure A-80 and A-81 are acknowledgements.
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5. The OPs have filed documents. Annexure A is Agreement to Sale dated 12.08.2011, Annexure B is agreement dated 12.08.2011, Annexure C is Layout Map, Annexure D is Order dated 17.06.2016 passed by District Judge, Raipur in Arbitration Case No.137-A/2015.
6. Shri A.K. Pathak, learned counsel appearing for the complainant has argued that that on being information given by the O.P. No.1, the complainant contacted the O.P. No.1. The O.P. No.1 gave details / particulars regarding layout and also shown him layout. The complainant went to the plot along with O.P. No.1. The complainant saw that near the plot one house had already been constructed and drains have also been constructed. The O.P. No.1 divided the land in different plots and electric poles and transformers were also fitted there. The O.P. No.1 told the complainant that it is first phase and booking had already over. The O.P. No.1 proposed the complainant for second phase Vatsalya Gaurav and gave details regarding the road, layout and drains etc. The complainant believed on the version of the O.P. No.1 and booked plot No.126, 127, 128, 129, 130, 134, 135, 136, 137 and 138. The complainant had regularly deposited installments on 16.11.2011, 02.01.2012, 05.03.2012, 30.03.2012, 30.05.2012, 01.07.2012, 14.08.2012, 17.09.2012 and 03.02.2014. The complainant deposited total amount of Rs.58,40,000/- with the O.P. No.1. The complainant asked the O.P. No.1 regarding transfer and diversion papers, but the O.P. No.1 avoided and did not show // 14 // documents regarding plots to the complainant. The complainant submitted an application to the O.P. No.1 on 16.06.2015. Thereafter the complainant came to know that the plots which were booked by the OPs in favour of the complainant, were not under the ownership of the O.P. No.1 and the same were under the ownership of Silver Developers. The O.P. No.1 committed cheating with the complainant. The complainant asked the O.P. No.1 to refund the amount back to him, but the O.P. No.1 avoided and did not refund the amount. The O.P. No.1 gave written assurance that the O.P. No.1 will refund the amount along with interest but the O.P. No.1 did not refund the amount, therefore, the complainant sent legal notice to the O.P. No.1, but the notice returned with endorsement "left". He further argued that the complainant booked the above plots for his family members with an intention to reside jointly at one place. The complainant deposited total amount of Rs.58,40,000/- with the O.P. No.1. The complainant booked the above plots for his family, therefore, the complainant is "consumer". According to the OPs, the Hon'ble High Court of Chhattisgarh, Bilaspur appointed Shri Pradeep Dave, Retired District Judge, Raipur as Arbitrator. In the arbitration proceedings, the complainant is not a party and arbitration is pending between M/s Vatsalya Builders and Developers Private Limited and M/s Silver Developers, therefore, said arbitration proceedings are not binding on the complainant and it cannot debar the complainant to file the instant // 15 // complaint. Due to misrepresentation given by the O.P. No.1, the complainant booked the plots, whereas the O.P. No.1 is not owner of the land and the land is belonging to Silver Developers. The act of the O.P. No.1 comes in the category of deficiency in service and unfair trade practice, therefore, the complainant is entitled to get the amount deposited by him with the O.P. No.1 along with 15% interest per month and is also entitled to get compensation for mental agony and cost of litigation. The complaint be allowed.
7. Shri P.C. Paul and Shri B.R. Barik, learned counsel appearing for the OPs have argued that an application under Section 11(6) of the Arbitration & Conciliation Act, 1996 has been filed by the O.P. No.2 before Hon'ble High Court of Chhattisgarh, Bilaspur (C.G.), which is registered as Arbitration Application No.53 of 2015. Hon'ble High Court of Chhattisgarh, vide order dated 27.04.2017, has appointed Shri Pradeep Dave, Retired District Judge, Raipur (C.G.) as Arbitrator, therefore, the instant complaint is not maintainable. They further argued that the complainant himself pleaded in para 5 of the complaint that he booked 10 plots for his family members, but he did not give details of his family members. All the 10 agreements were executed in favour of the complainant Bhojram Verma. It shows that the complainant purchased all the plots for investment purpose, which is for commercial purpose, therefore, the transactions between the parties are commercial transactions. The complainant is not // 16 // consumer. The complainant pleaded that the O.P. No.1 committed cheating with him, therefore, elaborate evidence is required in the matter and this Commission has no jurisdiction to decide the instant complaint. The Silver Developers, through its partners, are not made parties in the present complaint by the complainant, who are necessary parties to the present complaint. The present complaint therefore suffers from non-joinder of necessary party. The OPs have obtained Injunction Orders against the Silver Developers, through its partners, from the District Court, Raipur and the said order is also challenged by the Silver Developers through its partners, before the Hon'ble High Court of Chhattisgarh. Hence, the complaint is liable to be dismissed.
8. We have heard learned counsels appearing for both the parties and have also perused the documents filed by the parties in the complaint case.
9. Learned counsel for the OPs have raised main objection that the O.P. No.2 has filed an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 before the Hon'ble High Court of Chhattisgarh, Bilaspur (C.G.) and Hon'ble High Court vide order dated 27.04.2017 appointed Shri Pradeep Dave, Retired District Judge, Raipur as Arbitrator, therefore, the complaint, is not maintainable. The above contention of the OPs, is not sustainable.
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10. Section 3 of the Consumer Protection Act, 1986 makes the position clear. It reads thus :-
"3. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
11. In M/s National Seeds Corporation Ltd vs. M. Madhusudan Reddy and Another, 2013 (3) CPR 589 (SC), Hon'ble Supreme Court has observed thus :-
29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, filed complaint under the Consumer Act.
However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2 - Judge Bench interpreted that section and held as under :-
"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force.
// 18 // It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer in automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the // 19 // cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."
12. In Satish Kumar Pandey & Ors. Vs. Unitech Ltd. III (2015) CPJ 440 (NC), Hon'ble National Commission has observed thus :
"(i) Consumer Protection Act,, 1986 - Section 3 - Jurisdiction -
Availability of Arbitration as remedy does not debar complainant from approaching consumer Forum in case of deficiency in services rendered to him by service provider as adoption of unfair trade practices by him."
13. In DLF Limited Vs. Mridul Estates (Pvt.) Ltd, III (2013) CPJ 439 (NC), Hon'ble National Commission has observed thus :-
"(i) Consumer Protection Act, 1986 - Sections 3, 21(b) -
Arbitration and Conciliation Act, 1996 - Section 8 - Jurisdiction - Valid Arbitration Agreement - Reference of dispute - Maintainability of complaint - Complaint filed by a consumer under C.P. Act would be maintainable and relief cannot be denied by invoking jurisdiction of Section 8 of Arbitration Act, 19986 - Remedy provided under CP Act is a special remedy with objective of redressal of grievances of affected consumers in expeditious and non-expensive manner - If small consumers are relegated to Alternative Dispute Resolution (ADR) mechanism of arbitration, remedy provided under CP Act would become illusionary - Consumer Fora are not bound to refer dispute raised in complaint on application filed under Section 8 of Arbitration Act, 1996 seeking reference of dispute to Arbitral Tribunal in terms of valid arbitration clause in agreement entered into between parties."
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14. Initially the complainant filed complaint before this Commission on 17.11.2016, but in the complaint, the complainant had not given details regarding the date on which amounts were paid by him to O.P. No.1. On 13.12.2016, the complainant prayed for withdrawal of the complaint. The prayer of the complainant was allowed by this Commission with liberty to institute the fresh complaint in respect of subject matter of the complaint, therefore, the complainant again filed the instant complaint on 12.01.2017. It appears that before passing order by Hon'ble High Court of Chhattisgarh, the instant complaint has been filed by the complaint before this Commission.
15. The OPs have filed copy of order dated 27.04.2017, passed by Hon'ble High Court of Chhattisgarh in Arbitration Application No.53 of 2015 M/s Vatsalya Builders and Developers Pvt. Ltd. Vs. M/s Silver Developers. In the said Arbitration Application, the complainant is not a party and the arbitration proceedings has arisen between M/s Vatsalya Builders and Developers Pvt. Ltd. and M/s Silver Developers, therefore, the above order passed by Hon'ble High Court of Chhattisgarh is not binding on the complainant and the complainant is having right to file consumer complaint before this Commission and the complaint is maintainable.
16. The OPs raised objection that the OPs have obtained injunction against Silver Developers from District Judge, Raipur and Silver // 21 // Developers is a necessary party. The above contention is also not sustainable. The OPs have filed copy of order dated 17.06.2016 passed by District Judge, Raipur in Arbitration Case No.137-A/2015 M/s Vatsalya Builders and Developers Pvt. Ltd. Vs. M/s Silver Developers Through Its partners. From bare perusal of above order, it appears that the O.P. No.2 filed an application under Section 9 of The Arbitration and Conciliation Act, 1996 before District Judge, Raipur and the District Judge, Raipur vide order dated 17.06.2016 allowed the application filed by the O.P. No.2 and ordered that :-
"(1) On the part of the dispute property, no interest of any third party is constructed, therefore, the temporary injunction is issued against the OPs regarding constructing interest of third party or transfer the property .
(2) The above order will be effective for the period of 04 months (Four Months) from the date of order. During the above period the applicant will take action for obtaining order from the Hon'ble High Court regarding appointment of the Arbitrator. If such action is not taken, then after four years the above order will become ineffective and in other case, the above order will be effective till passing of the order in the arbitration case."
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17. In the arbitration proceedings, the complainant is not a party and injunction order has been issued by the District Court, Raipur against Silver Developers and not against the complainant. Agreements were executed by the O.P. No.1 in favour of the complainant. In the agreements the description of O.P. No.1 is given as Vatsalya Builders and Developers Pvt. Ltd., Through Director - Mr. Prafull Purushottamrao Gadge. The O.P. No.1 executed the agreements in favour of the complainant as a landlord/owner of the plots, therefore, if any matter is pending between Vatsalya Builders and Developers Pvt. Ltd and Silver Developers, then the Silver Developers, is not a necessary party in the instant case. 18 Now we shall consider whether the complainant is a consumer ?
19. In Dr. Ashok Cheriyan Vs. Kerala Trade Centre & Ors. II (2017) CPJ 71 (NC), Hon'ble National Commission has observed thus :-
"5. Thus, the factual position is that the complainant owned a residential house in Tharakantangu besides three residential houses in Cochin at the time the flat in question was booked. In the absence of any explanation for booking the flat in question despite owing the aforesaid houses coupled with the fact that the complainant is a Non- Resident Indian, it would be reasonable to infer that the flat in question was booked by him for commercial purpose by making profit by selling it at a later date. It is true that merely booking a residential flat despite owning another residential house does not necessarily lead to an inference that the second house was sought to be purchased for a residential purpose, but when a person despite owning a number of // 23 // residential houses, agrees to purchase yet another house and he fails to offer any explanation for agreeing to purchase a new house despite owning as many as four houses, the presumption that he had entered into the transaction for a commercial purpose would be justified. This would be more so in a case when the complainant happens to be an NRI."
20 In the case of M/s. Max Infra (India) Ltd., Rep. by its Chairman, Dr. M.S. Phani Kumar vs. M/s. Ashok Leyland Ltd. & Ors., 2014 (2) CPR 691 (NC), Hon'ble National Commission observed thus :-
"9. In another case, Shika Birla v. DLF Retailers Developers Ltd., Consumer Complaint No.183 of 2012, decided by this Bench, on 01.02.2013, found that Shikha Birla was not a consumer. An SLP was filed before the Hon'ble Apex Court. The Hon'ble Apex Court in Civil Appeal No.5458 of 2013, passed a detailed order, observing as under :-
"This appeal filed is directed against order dt. 01.02.2013 of the 2014 (2) CPR (NC) National Consumer Disputes Redressal Commission, New Delhi '(for short, the National Commission') whereby the complaint filed by the appellant under Section 21 of the Consumer Protection Act, 1986 (for short, 'the Act') was dismissed as not maintainable.
We have heard learned counsel for the appellant and carefully perused the record. The averments contained in paragraphs 2(A), 2(G), 2(N), 2(Q) of the complaint and paragraphs 3 to 5 of affidavit filed by her sometime in October, 2012 clearly show that the complainant had taken the disputed site from Mr. Ashwani Bahl who in turn, had purchased the site for business // 24 // purpose. It was neither the pleaded case of the appellant nor any evidence was produced by her before the National Commission to show that she had taken the site for earning livelihood. The National Commission took cognizance of all the facts and observed :
"6. It is thus clear that the complainant is purchasing the said plot for commercial purpose. There is no pleading nor any evidence to show that the shop purchased by her is exclusively for the purpose of her livelihood, by means of self-employment.
7. It must be borne in mind that the complainant has already paid more than Rs.2.00 crores. The total cost of the shop is of about 3.00 crores. The complainant is silent about her occupation. In her affidavit, in para nos.3, 4, 5 & 6, for the first time, she mentions :
"3. That the complainant had purchased the said commercial area being provided respondent for her end use with a view to open a showroom for interior designing in the said area.
4. The complainant is working as an Interior Designer in the firm which is owned by her father in law i.e. Mr. Malik Chand Birla and her husband i.e. Mr. Anurag Birla under the name and style of "M/s Origin Overseas (Queen 10 the Home Affairs)."
5. That with the view to provide a permanent place for the said boutique when the same was shut down in Hauz Khas, the complainant was forced to move to Gurgaon temporarily in the Grand Mall, GS - 122, thereafter the complainant // 25 // decided to purchase the instant area for her usage.
6. xxx".
10. In Kalpavruksha Charitable Trust v. Toshniwal Brothers (Bombay) Pvt. Ltd. AIR 1999 SC 3356, while placing reliance on Laxmi Engineering Works v. P.S.G. Industrial Institute (1995) 3 SCC 583, the Hon'ble Apex Court was pleased to hold, as under :-
"6. It is, therefore, clear that in spite of the commercial activity, whether a person would fall within the definition of "consumer" or not would be a question of fact in every case. The National Commission had already held on the basis of the evidence on record that the appellant was not a "consumer" as the machinery was installed for "commercial purpose". We have been again referred to various documents, including the "project document", submitted by the appellant itself to the Bank for a loan to enable it to purchase the machinery in question, but we could not persuade ourselves to take a different view.
9. In the instant case, what is to be considered is whether the appellant was a "consumer", within the meaning of the Consumer Protection Act, 1986, and whether the goods in question were obtained by him for "resale" or for any "commercial purpose". It is the case of the appellant that every patient who is referred to the Diagnostic Centre of the appellant and who takes advantage of the CT scan, etc., has to pay for it and the service rendered by the appellant is not free. It is also the case of the appellant that only ten percent of the patients are provided free service. That being so, the "goods"
"(machinery") which were obtained by the appellant, were being used for "commercial purpose".
// 26 // [Emphasis Supplied]
21. In the case of Anil Dutt vs. M/s. Business Park Town Planners Ltd. (BPTP), 2013 (4) CPR 24 (NC), Hon'ble National Commission has observed that "Consumer Protection Act, 1986 - Sections 2 (1)(d)(ii) and 21 - Real estate - Purchase of plots - When a consumer has booked more than one unit of residential premises; it amounts to booking of such premises for investment commercial purpose - Intention of complainant is to re-sell the flats - Flats were not purchased for personal use of consumer - Present complaint is not maintainable - Complaint dismissed with liberty to complainant to approach appropriate forum to seek redressal of his grievance."
22. In the case of Ghaziabad Development Authority Through Vice-Chairman vs. Purwa Dureja & Ors., 2013 (4) CPR 812 (NC), Hon'ble National commission has observed that "A person who hires or avails services for commercial purpose is not covered within definition of 'consumer' unless such services have been availed exclusively for the purpose of earning livelihood by means of self employment - This is a case of allotment of commercial chambers to respective complainants - It is established that respondents are not consumer as defined under section 2(1)(d), as such , they could not have maintained consumer complaints before Consumer Fora - For a below have exercised jurisdiction not vested in them by taking // 27 // cognizance of consumer complaints filed by respondents who do not qualify to be 'consumer'.
23. In the case of Roopinder Singh Nahal vs. Shalimar Estate Private Limited, (Dl.), 2013 (1) CPR 154 (Del.), Delhi State Consumer Disputes Redressal Commission, New Delhi has observed that "Section 2(1)(d) and 17 - Real Estate - Allotment of Show-Room - As per brochure, possession was to be handed over within two years, but same was not done, despite many visits and demand letter. In order to establish that complainant was to use showroom, for earning his livelihood by means of self-employment, it was his bounden duty to prove the same by producing cogent evident - However, he has failed to do so - He is earning his livelihood, from the job, he is doing and, as such, showroom was booked nor for earning livelihood, by means of self - employment - Complainant is not a 'consumer' within meaning and scope of Section 2(1)(d) and complaint, being not maintainable, is liable to be dismissed on this ground alone - Complaint dismissed.
24. In the instant case, the complainant simply pleaded that he booked plots for his family members for joint residence purpose, but the complainant did not plead regarding the particulars of his family members. The agreements have been filed by the complainant i.e. Annexure A-1+1 to Annexure A-10+1. In all above agreements, the name of purchaser is mentioned Mr. Bhoj Ram Verma. It appears that all the plots were booked by the complainant for himself and the // 28 // agreements were executed in the name of the complainant. It shows that the complainant booked the 10 plots in his name. It can safely be presumed that the complainant purchased the above plots for commercial purpose or for re-investment purpose. There is no pleadings or evidence to show that the plots booked by the complainants are exclusively for the purpose of his livelihood by self employment.
25. Therefore, the complainant booked the 10 plots and all agreements were executed in the name of the complainant, hence, the complainant purchased the above plots for commercial purpose. The complainant is not consumer and the dispute between the parties is not consumer dispute, hence the complaint is not maintainable and the complaint is liable to be dismissed.
26. Hence, the complaint filed by the complainant against the OPs is dismissed, but the complainant will be at liberty to file civil suit. The complainant will get exemption of time spent in prosecuting this complaint for filing such civil suit. Parties shall bear their own costs.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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