State Consumer Disputes Redressal Commission
Rajender Singh vs Shalimar Plaza, Site No. 1 Ifb, ... on 19 September, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1879 of 2011
Date of institution: 21.12.2011
Date of Decision : 19.9.2013
1. Rajender Singh son of Gurdayal Singh,
2. Smt. Jasvir Kaur wife of Rajender Singh
Both residents of H. No. 725, Sector 14, Sonepat, Haryana.
.....Appellants/Complainants
Versus
1. Shalimar Plaza, Site No. 1 IFB, Phase-8B, IT City, Mohali through
its authorized representative.
2. Shalimar Estates Pvt. Ltd. Co. Office, SCO 110-111, Sector 8-C,
Chandigarh Mohali through its authorized representative.
.....Respondents No.1&2/OP Nos. 1 & 2
3. Oriental Bank of Commerce, Sonepat.
...Respondent No. 3/OP No. 3
Argued By:-
For the appellant : Sh. T.P.S. Teji, Advocate
For respondents No.1&2 : Sh. Arun Kumar, Advocate
For respondent No.3 : Ex.-parte.
First Appeal against the order dated
15.11.2011 passed by the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member Shri Jasbir Singh Gill, Member FIRST APPEAL NO. 1879 OF 2011 2 Gurcharan Singh Saran, Presiding Judicial Member The appellants/Complainants(hereinafter called "the appellants") have filed the present appeal against the order dated 15.11.2011 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (hereinafter called "the District Forum") in consumer complaint No. 385 of 2011 vide which the complaint of the complainants was dismissed.
2. The complainants has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') on the allegations that in furtherance of advertisement given by OP Nos. 1 & 2 for allotment of one commercial site, the complainant invested a sum of Rs. 3.60 lacs vide demand draft No. 109574 dated 16.2.2006 for showroom of commercial category-C and their application form was accepted by the opposite parties. According to the terms and conditions of the allotment they further deposited Rs. 7,20,000/- vide receipt No. 1052 dated 14.3.2006 but till date nothing has been done by the Ops to give possession of the commercial site. The Ops have constantly raised the demand of remaining amount but no development has been done on the side, therefore, further amount was not deposited and now the Ops have threatened to forefeit their amount. The complainants are still showing their willingness to pay the balance amount but some progress must be invoked otherwise they are duty bound to refund the amount alongwith interest. Legal notice was issued, which was refunded. Hence, the complaint.
3. The complaint was contested by the opposite parties, who in their written statement have taken the preliminary objections that FIRST APPEAL NO. 1879 OF 2011 3 the complaint filed by the complainant is not maintainable; the complaint is not maintainable as the Hon'ble National Commission in appeal titled as "Shalimar Estates Pvt. Ltd. Vs. Smt. Vimal Gupta & Ors." in their order dated 13.5.2011 has observed that the matter is relating to commercial property for commercial activity, which is not covered under the term 'consumer'; the complaint is based upon frivolous and baseless facts and that complicated questions are involved in the present complaint and the Ld. District Forum has no jurisdiction to try the complaint. On merits, it has been admitted to the extent that the complainants applied for allotment of commercial site and deposited the amount stated by the complainants and that they had applied for allotment of commercial site not for their personal use, therefore, it was for commercial activity and is not covered under the definition of 'consumer'. It was further stated that the construction and development work of the Shopping Mall was enforced. The respondent as a goodwill gesture to fulfill his part of obligation is paying the damages @ Rs. 10/- per sq. ft. per month to the complainant as mentioned in the terms and condition No. 12. The delay is not on the part of the opposite parties it is only due to unforeseen circumstances and is not intentional. Since the opposite party has already spent huge amount on the project and construction although the opposite parties have received just a part of the amount and the complainant and other customers are not paying the amount to be deposited by them with the opposite parties as per the terms and conditions. No legal notice as alleged by the complainant was FIRST APPEAL NO. 1879 OF 2011 4 received by the opposite parties, therefore, it has been stated that there is no merit in the complaint and the same be dismissed.
4. The parties were allowed by the learned District Forum to lead their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. CW-1/1, copy of application form Ex. C-1, acceptance cum demand letter Ex. C-2, receipt Ex. C- 3, legal notice Ex. C-4, envelop Ex. C-5. On the other hand, the opposite parties had tendered into evidence affidavit of R.K. Aggarwal, M.D. of respondent firm Ex. RW-1/1, copy of judgment of the Hon'ble National Commission dated 13.5.2011 Ex. R-1.
6. After going through the allegations in the complaint, written statements, evidence and documents brought on the record, the learned District Forum vide impugned order observed that the complainant had booked commercial site for commercial activity as per explanation to Section 2(1)(d), it has not been mentioned that the site was purchased exclusively for the purpose of his livelihood by means of self-employment. In other similar case "Shalimar Estates (Pvt.) Ltd. & another Vs. Radha Agro Packs Limited", F.A. No. 28 of 2010 decided on 27.7.2011, the Hon'ble State Commission, Haryana dismissed the appeal on similar grounds that the complainant does not fall within the definition of 'consumer'. After relying upon some other judgments, ultimately, the learned District Forum came to the conclusion that the complainant is not covered under the definition of 'consumer' as defined under Section 2(1)(d) of the Act, therefore, the complaint is not maintainable before the District Forum. However, the FIRST APPEAL NO. 1879 OF 2011 5 complainant will be at liberty to seek their remedy from the Civil Court, if so advised.
7. Aggrieved with the order passed by the learned District Forum, the appellants/opposite parties have filed the present appeal.
8. In the grounds of appeal, it has been stated that the learned District Forum has not properly appreciated the fact that the appellant had applied for commercial site and it has not been mentioned that it was for their livelihood. It has not been appreciated that personal use will also cover the commercial property. The judgements referred in the order are not applicable, therefore, the order of the learned District Forum be set-aside. In support of this preposition, the counsel for the appellants has referred to judgment of the Hon'ble National Commission "Controls & Switchgear Company Ltd. (M/s) versus M/s Daimlerchryster India Pvt. Ltd. and Anr.", 2007 (2) CPC 665. In that case 'two luxurious cars were purchased and the opposite party had taken the plea that the cars were being used for commercial purpose is not tenable as the cars are being used for personal use of the Directors of the Company'. Another judgment referred is of Hon'ble State Commission, New Delhi "V.P. Sharma versus Sikander Lal and Company and others", 2004(2) CPC 612. In that case "the complainant was availing the service of Op. for sale and purchase of shares is not a consumer as activities relating to commercial purpose. - It was held that the person selling and buying shares for his personal use to supplement his personal income is not a trader and is a consumer'. FIRST APPEAL NO. 1879 OF 2011 6
9. However in the present case, it is missing from the complaint that the commercial site which was to be purchased by the complainant from the opposite parties was meant for his personal use to earn his livelihood, therefore, without proper pleadings the complainant cannot say that it was for his personal use to supplement his income. With regard to the judgments referred by the counsel for the appellants, those are strictly on different footings as element of personal use has been mentioned by the complainant and ratio of law settled in those judgments is not squarely applicable in the facts and circumstances of the case. There are some other judgments i.e. First Appeal No. 421 of 2010 "Emaar MGF Land Limited Vs. Shri Roopinder Singh" decided on 11.7.2011 passed by the State Consumer Commission, U.T., Chandigarh; Consumer Complaint No. 41 of 2010 "M/s SKG Engineering Pvt. Ltd. versus Emaar MGF Land Pvt. Ltd.", decided on 16.4.2010 and Revision Petition No. 3811 of 2007 "Rajasthan State Industrial Development and Investment Corporation Ltd. versus M/s Diksha Enterprises", decided on 9.7.2010 by the Hon'ble National Commission, in which the commercial plots were involved and that allotment was for commercial purpose, therefore, the complainant was not considered as 'consumer'. We subscribe to the same view, therefore, we are of the opinion that the order passed by the learned District Forum is correct and we do not see any infirmity in the same and affirmed the same.
10. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs. FIRST APPEAL NO. 1879 OF 2011 7
11. The arguments in this appeal were heard on 11.9.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
12. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member September 19, 2013. (Jasbir Singh Gill) as Member