National Consumer Disputes Redressal
Society For Consumers & Investors ... vs Haryana State Industrial & Infra. ... on 26 July, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 145 OF 2012 1. SOCIETY FOR CONSUMERS & INVESTORS PROTECTION (SCIP) & 2 ORS. 118, IInd Floor, DDA Site-I, New Rajinder Nagar, New Delhi - 110 060. 2. M/s. Sampark Securities Pvt. Ltd. 1E/18, 4th Floor, Jhandewalan Extension, New Delhi- 110 055. 3. Mr. Ankur Sachdeva 1E/18, 4th Floor, Jhandewalan Extension, New Delhi - 110 055. ...........Complainant(s) Versus 1. HARYANA STATE INDUSTRIAL & INFRA. DEVELOPMENT CORPORATION LTD. Infra. Development Corporation Ltd, C-13-14, Sector -6, Panchkula, Haryana ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
For the Complainant : Mr. B.R. Sachdeva, Advocate
Alongwtih Mr. Shekhar Aggarwal, Adv. For the Opp.Party : Mr. Ravindra Bana, Advocate
Dated : 26 Jul 2016 ORDER
Complainant No.1 is a registered Consumer Investor Protection Society duly registered under the Societies Registration Act. Complainant No.2 is a private limited company. Complainant No.3 is the Director of complainant No.2 company.
2. The above noted three complainants have filed a joint consumer complaint against the opposite party corporation, a fully owned by the Government company, alleging deficiency in service on the part of the opposite party in relation to allotment/delivery of possession of shop-cum-office plot No.T-12 triple story, SCO Sector-1, Manesar regarding which the complainant No.2 was declared successful bidder in the auction. It is case of the complainants that in response to the auction notice issued by the opposite party, the complainant No.2 participated in the auction pertaining to allotment of shop-cum-office plot No.T-12, triple story SCO, Sector-1, IMT Manesar (hereinafter referred to as "plot"). The complainant No.2 through its representative gave highest bid of Rs.3 crores and he was declared the successful bidder. The complainant, thus deposited 10% of the bid amount i.e. Rs.30 lacs as per the stipulation. Thereafter, the opposite party issued allotment letter dated 6th December, 2010 detailing the terms and conditions in favour of the complainant No.2. Pursuant to the allotment letter the complainant No.2 submitted his acceptance on 4.1.2011 and deposited a further sum of Rs.45 lakhs vide a bankers cheque dated 7.1.2011 in favour of the opposite party corporation to make payment upto 25% of the bid amount. The balance 75% of the consideration amount was required to be paid in 8 half yearly instalments of Rs.28,12,500/- besides the possession interest. First instalment was payable on 6.1.2011 and the last was payable on 6.12.2014.
3. It is further the case of the complainants that after the issue of allotment letter the opposite party came up with a new scheme known as EMP-2011. Clause 4 of he said scheme gave an option to the successful bidder of subject auction to switch over to EMP-2011 by giving a fresh unconditional undertaking to accept and be bound by the provisions of EMP-2011, where-after the agreement executed between the parties would be deemed to be modified to the extent of the provisions/conditions of EMP-2011 scheme. The complainant No.2 exercised his option to switch over to EMP-2011 and submitted the requisite undertaking alongwtih the requisite documents with the opposite party on 21.6.2011.
4. It is further the case of the complainant that despite of the complainant having paid 25% of the consideration amount within 30 days from the date of issue of allotment letter, he was not given possession and when the complainant asked for the reason the concerned Estate Officer told him that the possession of the plot could not be delivered because the auction file has not been received back from the head office. Although the opposite party had failed to deliver the possession of the subject plot the complainant in order to fulfil his obligation under the allotment contract paid further sum of Rs.40,39,829/- towards the part payment against the balance 75% of the consideration amount alongwith the letter dated 18.6.2011. In the said letter it was clarified that the payment of Rs.40,30,829/- was in excess of the first instalment payable by a sum of Rs.12,27,329/- and, therefore, opposite party was requested that aforesaid amount be adjusted against the future instalments. Despite of having made the payment of the first instalment towards 75% of the consideration amount the possession was not delivered although the complainant No.2 approached the Estate Manager of the opposite party on several occasions.
5. It is further the case of the complainant that despite of the complainant having fulfilled his part of obligation under the contract the opposite party issued a show cause notice dated 9.1.2012 calling upon the complainant No.2 to pay the balance instalments due as also the interest accrued thereon, failing which opposite party threatened to initiate the necessary proceedings in terms of the allotment letter without any further communication. The complainants No.2 & 3 being aggrieved of the aforesaid action on the part of the opposite party approached complainant No.1 society and thereafter the consumer complaint was filed alleging deficiency in service on the part of the opposite party seeking following relief: -
"a) Direct the respondent to hand over the possession immediately in terms of the contract in favour of the complainant No.2 in respect of the property bearing plot No.T-12, Triple Story SCO at Sector 1, IMT Manesar (SCOs) located at Gurgaon, Haryana.
b) To direct the respondent to issue revised schedule of payment to the complainant No.2.
i) By treating all the payments made by the complainant No.2 so far as payments towards the principal amount of consideration;
ii) By not charging any possession interest until the date of the handing over of the physical possession of the property to the complainant No.2
iii) By allowing interest at the rate of 14% per annum on all the payments made by the complainant No.2 to the respondent till the date of the order passed by the Hon'ble Commission."
c) Direct the respondent to pay the interest @ 18% per annum for the entire amount paid by the complainant No.2 so far from the date of payment till the actual date of delivery of possession of the property in question.
d) Direct the respondent to pay compensation for the deficiency in service and loss of business sustained by complainant No.2.
e) Direct the respondent to provide for adequate cost to the complainants. f) Pass any other order as the Hon'ble Commission may deem fit in the interest of justice."
6. The opposite party on being served contested the complaint by filing a written reply. The opposite party denied the allegations on merits and it raised preliminary objections in relation to maintainability of the complaint on the ground that the complainants No.2 & 3 are not the consumers as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986 because if at all they have hired or availed the services of the opposite party, the services were availed for commercial purpose. Secondly, it was pleaded that since the complainants had participated in the auction proceedings for purchase of the plot on "as is where is basis" and there was no element of service promised by the opposite party, the complainants are not the consumers. Thus, the complainants not being the consumers have no locus standi to raise the consumer dispute by approaching the consumer forum.
7. Both the parties have filed evidence by way of affidavits in support of their respective pleas.
8. I have heard learned counsel for the parties and perused the record.
9. Learned counsel for the opposite party has contended that on perusal of record, it would be seen that the subject plot was put for auction on "as is where is basis" therefore the complainant No.2 who has purchased the plot on "as is where is basis" is not a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 particularly when there is no element of service hired or availed by the complainants or promised to be rendered by the opposite party. In support of this contention, learned counsel for the opposite party has relied upon the judgment of the Hon'ble Supreme Court in the matter of UT Chandigarh Administration & Anr. vs. Amarjeet Singh & Orss. (2009) 4 SCC 660. Refuting the arguments, learned counsel for the complainants has contended that judgment of Amarjeet Singh (supra) is not applicable to the facts of the case. It is argued that as per the terms and conditions of the auction the complainants were required to make payment of consideration amount in instalments in consideration of which the opposite party was required to deliver possession of the subject plot and as the opposite party has failed to deliver possession of the plot despite of the complainants having made payments on or before due dates, they have failed in performance of their part which amounts to deficiency in service. In support of this contention, learned counsel has relied upon the judgment of the Co-ordinate Bench of this Commission in the matter of Haryana Urban Development Authority vs. Suneja IV (2011) CPJ 1 (NC) and the judgment of this Commission in the matter of Delhi Development Authority vs. Efficient Offset Printers 1 (2014) CPJ 295 (NC) as also the judgment of Hon'ble Supreme Court in the matter of Karnataka Power Transmission Corporation & Anr.vs. Ashok Iron Works Pvt. Ltd. AIR (2009) SC 1905. In the matter of Efficient Offset Printers (supra), the Co-ordinate Bench of this Commission has distinguished the judgment of Supreme Court in the matter of Amarjeet Singh (supra).
10. In order to find answer to the issue of maintainability, it would be useful to have a look on definition of "consumer" as envisaged in Section 2 (1) (d) of the Consumer Protection Act, 1986, which reads as under:
(d) "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 purposes;
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment."
In the light of above definition, I proceed to have a look on the terms and conditions detailed in the auction notice. Auction notice has not been produced in evidence by either of the parties. However, it is submitted by learned counsel for the parties that terms and conditions of the auction are reproduced in the allotment letter dated 6th December, 2010 which is annexure C-7 to the complaint. Para-2 of the allotment letter reads as under: -
"Your bid has been accepted and the site as detailed below has been to you on free-hold and on "as is where is basis" on the terms & conditions mentioned herein and subject to the rules/regulations of Town & Country Planning Department, Haryana as amended from time to time including terms and conditions already announced at the time of auction and accepted by you: -
Sector No./Estate Triple Story SCO No. Dimensions (in meters) approx.
Area in sq. mtrs.
Consideration money (Amt. in ₹) Sector-1/IMT-Manesar 12 6 x 24 144 3,00,00,000/-
11. On reading of the above, it is clear that the subject site was allotted to the complainant M/s Sampark Securities Pvt. Ltd. (complainant No.2) on free hold and "as is where is basis". There is nothing in this letter to suggest that any service was promised to be rendered by the opposite party. Plain reading of the allotment letter shows that it is in the nature of a simple agreement to sell and if the opposite party has failed to perform its part of contract, the only remedy for the complainants was to file a suit for specific performance. In my aforesaid view, I find support from the judgment of the Supreme Court in the matter of UT Chandigarh Administration & Anr. vs. Amarjeet Singh & Ors (supra), wherein Hon'ble Supreme Court has observed as under: -
"The decisions in Lucknow Development Authority and Ghaziabad Development Authority make it clear that where a public development 15authority having invited applications for allotment of sites in a lay out to be formed or for houses to be constructed and delivered, fails to deliver possession by forming the layout of sites or by constructing the houses within the stipulated period, the delay may amount to a deficiency in service by treating the development authority as a service provider and the allottee as the consumer. But where existing sites are put up for sale or lease by public auction by the owner, and the sale/lease is confirmed in favour of the highest bidder, the resultant contract relates to sale or lease of immovable property. There is no hiring or availing of services by the person bidding at the auction. Nor is the seller or lessor, a trader who sells or distributes `goods'. The sale price or lease premium paid by the successful bidder of a site, is the consideration for the sale or lease, and not consideration for any service or for provision of any amenity or for sale of any goods.
In Lucknow Development Authority, it was held that where a developer carries on the activity of development of land and invites applications for allotment of sites in a developed layout, it will amount to `service', that when possession of the allotted site is not delivered within the stipulated period, the delay may amount to a deficiency or denial of service, and that any claim in regard to such delay is not in regard to the immovable property but in regard 16to the deficiency in rendering service of a particular standard, quality or grade. The activity of a developer, that is development of land into layout of sites, inviting applications for allotment by assuring formation of a lay out with amenities and delivery of the allotted sites within a stipulated time at a particular price, is completely different from the auction of existing sites either on sale or lease. In a scheme for development and allotment, the allottee has no choice of the site allotted. He has no choice in regard to the price to be paid. The development authority decides which site should be allotted to him. The development authority fixes the uniform price with reference to the size of plots. In most development schemes, the applications are invited and allotments are made long before the actual development of the lay out or formation of sites. Further the development scheme casts an obligation on the development authority to provide specified amenities. Alternatively the developer represents that he would provide certain amenities, in the Brochure or advertisement. In a public auction of sites, the position is completely different. A person interested can inspect the sites offered and choose the site which he wants to acquire and participate in the auction only in regard to such site. Before bidding in the auction, he knows or is in a position to ascertain, the condition and situation of the site. He knows about the existence or lack of amenities. The auction is on `as is where 17is basis'. With such knowledge, he participates in the auction and offers a particular bid. There is no compulsion that he should offer a particular price. When the sites auctioned are existing sites, without any assurance/representation relating to amenities, there is no question of deficiency of service or denial of service. Where the bidder has a choice and option in regard to the site and price and when there is no assurance of any facility or amenity, the question of the owner of the site becoming a service provider, does not arise even by applying the tests laid down in Lucknow Development Authority or Balbir Singh.
Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site. If all amenities are available, he would offer a higher amount. If there are no amenities, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment, or the ground rent, on the ground that the 18site suffers from certain disadvantages or on the ground that amenities are not provided. With reference to a public auction of existing sites (as contrasted from sites to be `formed'), the purchaser/lessee is not a consumer, the owner is not a `trader' or `service provider' and the grievance does not relate to any matter in regard which a complaint can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the fora under the Act will not have jurisdiction to entertain or decide any complaint by the auction purchaser/lessee against the owner holding the auction of sites."
12. As regards the judgments relied upon by the complainants, it may be noted that in the matter of DDA vs. Efficient Offset Printers, the Co-ordinate Bench of this Commission has tried to distinguish the judgment of Supreme Court by observing thus: -
"From the above it is clear that the decision of the Apex Court was in the specific context of the demand for provision of basic amenities in relation to auction of existing sites. Learned counsel for the DDA has completely failed to explain how the above decision is applicable to a consumer complaint against forfeiture of the earnest money after acceptance of the full bid amount from the auction purchaser and failure to deliver possession to him. In our view, there is nothing in the above decision of the Apex Court which permits unqualified exclusion, from the purview of the Consumer Protection Act, 1986, of all those consumer complaints which arise from public auction of a plot or site. Therefore, we reject the contention of the appellant/DDA that the in terms of the decision in the above cited case, the complainant is not a consumer."
13. In my considered opinion, the aforesaid observation of the Co-ordinate Bench is based on misreading of the judgment of Supreme Court in the matter of Amarjeet Singh (supra), which is binding on this Commission. Therefore, the said judgment is of no avail to the complainants. So far as the judgment in the matter of HUDA vs. Suneja (supra) is concerned, the said judgment is also of no help to the complainants for the reason that in the said case auctioned plot of land was promised to be offered for possession to the successful bidder on completion of the development work in the area. Thus, it is clear that in the said case service in the form of development of area was promised and as such this judgment is not applicable to the facts of this case. Judgment in the case of Karnataka Power Transmission Corporation & Anr.vs. Ashok Iron Works Pvt. Ltd. (supra) is also not applicable to the facts of this case because on reading of the judgment it is clear that the judgment relates to the dispute which occurred much prior to the year 2003. It may be noted that in the earlier Act there was no exception regarding "commercial purpose" made in the definition of the consumer hiring or availing the service for consideration. From 1st April, 2003 the above exception was carved out in Section 2 (1) (d) of the Act. Therefore, the judgment being related to interpretation to pre-amendment period is not applicable to the facts of this case.
14. The complainants had participated in the auction for purchase of plot on "as is where is basis" and there being no element of service promised by the opposite party, the complainants cannot be termed as "Consumers" because in order to qualify under that definition, the complainants are required to show that they had hired or availed of any services in respect of subject plot which they have miserably failed.
15. Coming to the second limb of the argument, learned counsel for the opposite party has taken me through the definition of Consumer as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986 and submitted that on plain reading of the aforesaid definition it would be seen that the definition itself carves out an inbuilt exception of the effect that if the services of the opposite party are hired or availed for commercial purpose then the hirer of the service would not fall within the definition of the "consumer". On the contrary, it is argued by learned counsel for the opposite party that perusal of the complaint would show that as per the admission of the complainants the subject plot is a shop-cum-office plot and not only this the complainants in their prayer clause have claimed compensation of Rs.4 lakhs per month on account of loss of business which clearly indicates that the complainants participated in the auction for plot in question with the intention to use it for commercial purpose. Thus, it is submitted that the complainants do not fall within the definition of consumer.
16. Learned counsel for the complainants has contended that no doubt that the complainants had given bid for a commercial plot with the intention to use it for commercial purpose but they are covered under Explanation to Section 2 (1) (d), which gives restricted meaning to the term "Commercial Purpose" in respect of definition of "consumer". In support of this contention, learned counsel has drawn my attention to para 2 of the complaint wherein it is alleged that the complainants had purchased the property and availed of service of the opposite party for the purpose of earning livelihood by means of self-employment, livelihood of Directors and substantial shareholders. Admittedly, allottee in this case is complainant No.2 company which is registered under the Companies Act. The company no doubt is a "person" but it is an unnatural person. Therefore, it is clear that the company could not have hired or availed of the services of the opposite party for earning livelihood. The term "livelihood" used in the explanation pre-supposes that it is applicable only to the natural person. Therefore, in my view, the explanation also is of no avail to the complainants and they are not the consumers as defined under Section 2 (1) (d) of the Consumer Protection Act.
17. Learned counsel for the opposite party has come out with yet another argument stating that complaint has been filed not only by complainant No.2 company and its Directors but by a registered consumer society. Learned counsel has contended that Section 2 (1) (b) of the Consumer Protection Act defines the term "Complainant" and it includes any voluntary consumer association registered under the Companies Act or under any other law for the time being in force. Learned counsel further contends that Section 12 of the Consumer Protection Act, 1986 deals with the manner in which complaint shall be made and clause (b) of Section 12 (1) provides that recognized consumer association can file a consumer complaint. It is argued that complainant No.1 Society for Consumers and Investors Protection being registered society has filed this complaint and since it had no pecuniary interest in the subject plot even if complainants No.2 & 3 are not the consumers, the society is the consumer which can pursue this complaint.
18. Above contention of learned counsel for the complainants is misconceived. On bare reading of Section 2 (1) (b) and Section 12 (1) (b) of Consumer Protection Act, 1986 it is clear that a registered society can file a consumer complaint on behalf of some aggrieved consumer but it cannot be equated with a consumer. There is a clear distinction between the complainant and a consumer. Complainant is a person who files a complaint whereas consumer is the person as defined under Section 2(1) (d) of the Consumer Protection Act, 1986. Thus, I do not find merit in the contention of learned counsel for the complainants.
19. In view of the discussion above, it is crystal clear that the complainants No.2 & 3 who have interest and stake in the subject matter of this complaint, are not the consumers as envisaged under Section 2 (1) (d) of the Consumer Protection Act, as such the consumer complaint is not maintainable.
20. I, therefore, dismiss the complaint with liberty to the complainants to approach the appropriate forum having jurisdiction to decide the issue.
For the Complainants : Mr. B.R. Sachdeva, Advocate Alongwtih Mr. Shekhar Aggarwal, Adv. For the Opp. Party : Mr. Ravindra Bana, Advocate Dated : 26.07.2016 ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
Complainant No.1 is a registered Consumer Investor Protection Society duly registered under the Societies Registration Act. Complainant No.2 is a private limited company. Complainant No.3 is the Director of complainant No.2 company.
2. The above noted three complainants have filed a joint consumer complaint against the opposite party corporation, a fully owned by the Government company, alleging deficiency in service on the part of the opposite party in relation to allotment/delivery of possession of shop-cum-office plot No.T-12 triple story, SCO Sector-1, Manesar regarding which the complainant No.2 was declared successful bidder in the auction. It is case of the complainants that in response to the auction notice issued by the opposite party, the complainant No.2 participated in the auction pertaining to allotment of shop-cum-office plot No.T-12, triple story SCO, Sector-1, IMT Manesar (hereinafter referred to as "plot"). The complainant No.2 through its representative gave highest bid of Rs.3 crores and he was declared the successful bidder. The complainant, thus deposited 10% of the bid amount i.e. Rs.30 lacs as per the stipulation. Thereafter, the opposite party issued allotment letter dated 6th December, 2010 detailing the terms and conditions in favour of the complainant No.2. Pursuant to the allotment letter the complainant No.2 submitted his acceptance on 4.1.2011 and deposited a further sum of Rs.45 lakhs vide a bankers cheque dated 7.1.2011 in favour of the opposite party corporation to make payment upto 25% of the bid amount. The balance 75% of the consideration amount was required to be paid in 8 half yearly instalments of Rs.28,12,500/- besides the possession interest. First instalment was payable on 6.1.2011 and the last was payable on 6.12.2014.
3. It is further the case of the complainants that after the issue of allotment letter the opposite party came up with a new scheme known as EMP-2011. Clause 4 of he said scheme gave an option to the successful bidder of subject auction to switch over to EMP-2011 by giving a fresh unconditional undertaking to accept and be bound by the provisions of EMP-2011, where-after the agreement executed between the parties would be deemed to be modified to the extent of the provisions/conditions of EMP-2011 scheme. The complainant No.2 exercised his option to switch over to EMP-2011 and submitted the requisite undertaking alongwtih the requisite documents with the opposite party on 21.6.2011.
4. It is further the case of the complainant that despite of the complainant having paid 25% of the consideration amount within 30 days from the date of issue of allotment letter, he was not given possession and when the complainant asked for the reason the concerned Estate Officer told him that the possession of the plot could not be delivered because the auction file has not been received back from the head office. Although the opposite party had failed to deliver the possession of the subject plot the complainant in order to fulfil his obligation under the allotment contract paid further sum of Rs.40,39,829/- towards the part payment against the balance 75% of the consideration amount alongwith the letter dated 18.6.2011. In the said letter it was clarified that the payment of Rs.40,30,829/- was in excess of the first instalment payable by a sum of Rs.12,27,329/- and, therefore, opposite party was requested that aforesaid amount be adjusted against the future instalments. Despite of having made the payment of the first instalment towards 75% of the consideration amount the possession was not delivered although the complainant No.2 approached the Estate Manager of the opposite party on several occasions.
5. It is further the case of the complainant that despite of the complainant having fulfilled his part of obligation under the contract the opposite party issued a show cause notice dated 9.1.2012 calling upon the complainant No.2 to pay the balance instalments due as also the interest accrued thereon, failing which opposite party threatened to initiate the necessary proceedings in terms of the allotment letter without any further communication. The complainants No.2 & 3 being aggrieved of the aforesaid action on the part of the opposite party approached complainant No.1 society and thereafter the consumer complaint was filed alleging deficiency in service on the part of the opposite party seeking following relief: -
"a) Direct the respondent to hand over the possession immediately in terms of the contract in favour of the complainant No.2 in respect of the property bearing plot No.T-12, Triple Story SCO at Sector 1, IMT Manesar (SCOs) located at Gurgaon, Haryana.
b) To direct the respondent to issue revised schedule of payment to the complainant No.2.
i) By treating all the payments made by the complainant No.2 so far as payments towards the principal amount of consideration;
ii) By not charging any possession interest until the date of the handing over of the physical possession of the property to the complainant No.2
iii) By allowing interest at the rate of 14% per annum on all the payments made by the complainant No.2 to the respondent till the date of the order passed by the Hon'ble Commission."
c) Direct the respondent to pay the interest @ 18% per annum for the entire amount paid by the complainant No.2 so far from the date of payment till the actual date of delivery of possession of the property in question.
d) Direct the respondent to pay compensation for the deficiency in service and loss of business sustained by complainant No.2.
e) Direct the respondent to provide for adequate cost to the complainants. f) Pass any other order as the Hon'ble Commission may deem fit in the interest of justice."
6. The opposite party on being served contested the complaint by filing a written reply. The opposite party denied the allegations on merits and it raised preliminary objections in relation to maintainability of the complaint on the ground that the complainants No.2 & 3 are not the consumers as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986 because if at all they have hired or availed the services of the opposite party, the services were availed for commercial purpose. Secondly, it was pleaded that since the complainants had participated in the auction proceedings for purchase of the plot on "as is where is basis" and there was no element of service promised by the opposite party, the complainants are not the consumers. Thus, the complainants not being the consumers have no locus standi to raise the consumer dispute by approaching the consumer forum.
7. Both the parties have filed evidence by way of affidavits in support of their respective pleas.
8. I have heard learned counsel for the parties and perused the record.
9. Learned counsel for the opposite party has contended that on perusal of record, it would be seen that the subject plot was put for auction on "as is where is basis" therefore the complainant No.2 who has purchased the plot on "as is where is basis" is not a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 particularly when there is no element of service hired or availed by the complainants or promised to be rendered by the opposite party. In support of this contention, learned counsel for the opposite party has relied upon the judgment of the Hon'ble Supreme Court in the matter of UT Chandigarh Administration & Anr. vs. Amarjeet Singh & Orss. (2009) 4 SCC 660. Refuting the arguments, learned counsel for the complainants has contended that judgment of Amarjeet Singh (supra) is not applicable to the facts of the case. It is argued that as per the terms and conditions of the auction the complainants were required to make payment of consideration amount in instalments in consideration of which the opposite party was required to deliver possession of the subject plot and as the opposite party has failed to deliver possession of the plot despite of the complainants having made payments on or before due dates, they have failed in performance of their part which amounts to deficiency in service. In support of this contention, learned counsel has relied upon the judgment of the Co-ordinate Bench of this Commission in the matter of Haryana Urban Development Authority vs. Suneja IV (2011) CPJ 1 (NC) and the judgment of this Commission in the matter of Delhi Development Authority vs. Efficient Offset Printers 1 (2014) CPJ 295 (NC) as also the judgment of Hon'ble Supreme Court in the matter of Karnataka Power Transmission Corporation & Anr.vs. Ashok Iron Works Pvt. Ltd. AIR (2009) SC 1905. In the matter of Efficient Offset Printers (supra), the Co-ordinate Bench of this Commission has distinguished the judgment of Supreme Court in the matter of Amarjeet Singh (supra).
10. In order to find answer to the issue of maintainability, it would be useful to have a look on definition of "consumer" as envisaged in Section 2 (1) (d) of the Consumer Protection Act, 1986, which reads as under:
(d) "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 purposes;
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment."
In the light of above definition, I proceed to have a look on the terms and conditions detailed in the auction notice. Auction notice has not been produced in evidence by either of the parties. However, it is submitted by learned counsel for the parties that terms and conditions of the auction are reproduced in the allotment letter dated 6th December, 2010 which is annexure C-7 to the complaint. Para-2 of the allotment letter reads as under: -
"Your bid has been accepted and the site as detailed below has been to you on free-hold and on "as is where is basis" on the terms & conditions mentioned herein and subject to the rules/regulations of Town & Country Planning Department, Haryana as amended from time to time including terms and conditions already announced at the time of auction and accepted by you: -
Sector No./Estate Triple Story SCO No. Dimensions (in meters) approx.
Area in sq. mtrs.
Consideration money (Amt. in ₹) Sector-1/IMT-Manesar 12 6 x 24 144 3,00,00,000/-
11. On reading of the above, it is clear that the subject site was allotted to the complainant M/s Sampark Securities Pvt. Ltd. (complainant No.2) on free hold and "as is where is basis". There is nothing in this letter to suggest that any service was promised to be rendered by the opposite party. Plain reading of the allotment letter shows that it is in the nature of a simple agreement to sell and if the opposite party has failed to perform its part of contract, the only remedy for the complainants was to file a suit for specific performance. In my aforesaid view, I find support from the judgment of the Supreme Court in the matter of UT Chandigarh Administration & Anr. vs. Amarjeet Singh & Ors (supra), wherein Hon'ble Supreme Court has observed as under: -
"The decisions in Lucknow Development Authority and Ghaziabad Development Authority make it clear that where a public development 15authority having invited applications for allotment of sites in a lay out to be formed or for houses to be constructed and delivered, fails to deliver possession by forming the layout of sites or by constructing the houses within the stipulated period, the delay may amount to a deficiency in service by treating the development authority as a service provider and the allottee as the consumer. But where existing sites are put up for sale or lease by public auction by the owner, and the sale/lease is confirmed in favour of the highest bidder, the resultant contract relates to sale or lease of immovable property. There is no hiring or availing of services by the person bidding at the auction. Nor is the seller or lessor, a trader who sells or distributes `goods'. The sale price or lease premium paid by the successful bidder of a site, is the consideration for the sale or lease, and not consideration for any service or for provision of any amenity or for sale of any goods.
In Lucknow Development Authority, it was held that where a developer carries on the activity of development of land and invites applications for allotment of sites in a developed layout, it will amount to `service', that when possession of the allotted site is not delivered within the stipulated period, the delay may amount to a deficiency or denial of service, and that any claim in regard to such delay is not in regard to the immovable property but in regard 16to the deficiency in rendering service of a particular standard, quality or grade. The activity of a developer, that is development of land into layout of sites, inviting applications for allotment by assuring formation of a lay out with amenities and delivery of the allotted sites within a stipulated time at a particular price, is completely different from the auction of existing sites either on sale or lease. In a scheme for development and allotment, the allottee has no choice of the site allotted. He has no choice in regard to the price to be paid. The development authority decides which site should be allotted to him. The development authority fixes the uniform price with reference to the size of plots. In most development schemes, the applications are invited and allotments are made long before the actual development of the lay out or formation of sites. Further the development scheme casts an obligation on the development authority to provide specified amenities. Alternatively the developer represents that he would provide certain amenities, in the Brochure or advertisement. In a public auction of sites, the position is completely different. A person interested can inspect the sites offered and choose the site which he wants to acquire and participate in the auction only in regard to such site. Before bidding in the auction, he knows or is in a position to ascertain, the condition and situation of the site. He knows about the existence or lack of amenities. The auction is on `as is where 17is basis'. With such knowledge, he participates in the auction and offers a particular bid. There is no compulsion that he should offer a particular price. When the sites auctioned are existing sites, without any assurance/representation relating to amenities, there is no question of deficiency of service or denial of service. Where the bidder has a choice and option in regard to the site and price and when there is no assurance of any facility or amenity, the question of the owner of the site becoming a service provider, does not arise even by applying the tests laid down in Lucknow Development Authority or Balbir Singh.
Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site. If all amenities are available, he would offer a higher amount. If there are no amenities, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment, or the ground rent, on the ground that the 18site suffers from certain disadvantages or on the ground that amenities are not provided. With reference to a public auction of existing sites (as contrasted from sites to be `formed'), the purchaser/lessee is not a consumer, the owner is not a `trader' or `service provider' and the grievance does not relate to any matter in regard which a complaint can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the fora under the Act will not have jurisdiction to entertain or decide any complaint by the auction purchaser/lessee against the owner holding the auction of sites."
12. As regards the judgments relied upon by the complainants, it may be noted that in the matter of DDA vs. Efficient Offset Printers, the Co-ordinate Bench of this Commission has tried to distinguish the judgment of Supreme Court by observing thus: -
"From the above it is clear that the decision of the Apex Court was in the specific context of the demand for provision of basic amenities in relation to auction of existing sites. Learned counsel for the DDA has completely failed to explain how the above decision is applicable to a consumer complaint against forfeiture of the earnest money after acceptance of the full bid amount from the auction purchaser and failure to deliver possession to him. In our view, there is nothing in the above decision of the Apex Court which permits unqualified exclusion, from the purview of the Consumer Protection Act, 1986, of all those consumer complaints which arise from public auction of a plot or site. Therefore, we reject the contention of the appellant/DDA that the in terms of the decision in the above cited case, the complainant is not a consumer."
13. In my considered opinion, the aforesaid observation of the Co-ordinate Bench is based on misreading of the judgment of Supreme Court in the matter of Amarjeet Singh (supra), which is binding on this Commission. Therefore, the said judgment is of no avail to the complainants. So far as the judgment in the matter of HUDA vs. Suneja (supra) is concerned, the said judgment is also of no help to the complainants for the reason that in the said case auctioned plot of land was promised to be offered for possession to the successful bidder on completion of the development work in the area. Thus, it is clear that in the said case service in the form of development of area was promised and as such this judgment is not applicable to the facts of this case. Judgment in the case of Karnataka Power Transmission Corporation & Anr.vs. Ashok Iron Works Pvt. Ltd. (supra) is also not applicable to the facts of this case because on reading of the judgment it is clear that the judgment relates to the dispute which occurred much prior to the year 2003. It may be noted that in the earlier Act there was no exception regarding "commercial purpose" made in the definition of the consumer hiring or availing the service for consideration. From 1st April, 2003 the above exception was carved out in Section 2 (1) (d) of the Act. Therefore, the judgment being related to interpretation to pre-amendment period is not applicable to the facts of this case.
14. The complainants had participated in the auction for purchase of plot on "as is where is basis" and there being no element of service promised by the opposite party, the complainants cannot be termed as "Consumers" because in order to qualify under that definition, the complainants are required to show that they had hired or availed of any services in respect of subject plot which they have miserably failed.
15. Coming to the second limb of the argument, learned counsel for the opposite party has taken me through the definition of Consumer as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986 and submitted that on plain reading of the aforesaid definition it would be seen that the definition itself carves out an inbuilt exception of the effect that if the services of the opposite party are hired or availed for commercial purpose then the hirer of the service would not fall within the definition of the "consumer". On the contrary, it is argued by learned counsel for the opposite party that perusal of the complaint would show that as per the admission of the complainants the subject plot is a shop-cum-office plot and not only this the complainants in their prayer clause have claimed compensation of Rs.4 lakhs per month on account of loss of business which clearly indicates that the complainants participated in the auction for plot in question with the intention to use it for commercial purpose. Thus, it is submitted that the complainants do not fall within the definition of consumer.
16. Learned counsel for the complainants has contended that no doubt that the complainants had given bid for a commercial plot with the intention to use it for commercial purpose but they are covered under Explanation to Section 2 (1) (d), which gives restricted meaning to the term "Commercial Purpose" in respect of definition of "consumer". In support of this contention, learned counsel has drawn my attention to para 2 of the complaint wherein it is alleged that the complainants had purchased the property and availed of service of the opposite party for the purpose of earning livelihood by means of self-employment, livelihood of Directors and substantial shareholders. Admittedly, allottee in this case is complainant No.2 company which is registered under the Companies Act. The company no doubt is a "person" but it is an unnatural person. Therefore, it is clear that the company could not have hired or availed of the services of the opposite party for earning livelihood. The term "livelihood" used in the explanation pre-supposes that it is applicable only to the natural person. Therefore, in my view, the explanation also is of no avail to the complainants and they are not the consumers as defined under Section 2 (1) (d) of the Consumer Protection Act.
17. Learned counsel for the opposite party has come out with yet another argument stating that complaint has been filed not only by complainant No.2 company and its Directors but by a registered consumer society. Learned counsel has contended that Section 2 (1) (b) of the Consumer Protection Act defines the term "Complainant" and it includes any voluntary consumer association registered under the Companies Act or under any other law for the time being in force. Learned counsel further contends that Section 12 of the Consumer Protection Act, 1986 deals with the manner in which complaint shall be made and clause (b) of Section 12 (1) provides that recognized consumer association can file a consumer complaint. It is argued that complainant No.1 Society for Consumers and Investors Protection being registered society has filed this complaint and since it had no pecuniary interest in the subject plot even if complainants No.2 & 3 are not the consumers, the society is the consumer which can pursue this complaint.
18. Above contention of learned counsel for the complainants is misconceived. On bare reading of Section 2 (1) (b) and Section 12 (1) (b) of Consumer Protection Act, 1986 it is clear that a registered society can file a consumer complaint on behalf of some aggrieved consumer but it cannot be equated with a consumer. There is a clear distinction between the complainant and a consumer. Complainant is a person who files a complaint whereas consumer is the person as defined under Section 2(1) (d) of the Consumer Protection Act, 1986. Thus, I do not find merit in the contention of learned counsel for the complainants.
19. In view of the discussion above, it is crystal clear that the complainants No.2 & 3 who have interest and stake in the subject matter of this complaint, are not the consumers as envisaged under Section 2 (1) (d) of the Consumer Protection Act, as such the consumer complaint is not maintainable.
20. I, therefore, dismiss the complaint with liberty to the complainants to approach the appropriate forum having jurisdiction to decide the issue.
......................J AJIT BHARIHOKE PRESIDING MEMBER