National Consumer Disputes Redressal
M/S. Tdi Infastructure Pvt. Ltd. vs Rajesh Jain on 1 December, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1628 OF 2015 (Against the Order dated 28/10/2014 in Appeal No. 838/2013 of the State Commission Haryana) 1. M/S. TDI INFASTRUCTURE PVT. LTD. (FORMELY INTIME PROMOTORS (P) G7, GROUND FLOOR,CANNAUGHT CIRCUS,MADRAS HOTEL, THROUGH ITS MANAGING DIRECTOR, NEW DELHI ...........Petitioner(s) Versus 1. RAJESH JAIN S/O SUKHMAL JAIN, C/O FLORA EXPORTS,SECTOR-29, HUDA,. PANIPAT - 132108 HARYANA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : For the Petitioner In both RPs : Ms. Kanika Agnihotri, Advocate Along with Ms. Juhi Chawla & Mr. Srinivas Vijay Kumar, Advocates For the Respondent : For the Respondent In both the RPs : Ms. Shruti Nigam, Advocate Dated : 01 Dec 2015 ORDER JUSTICE J.M. MALIK
1. This order shall decide the above-detailed two revision petitions, which are between the same parties, have similar facts and entail the same questions of law.
2. Both these revision petitions are delayed by 121 days, each. It is explained that the files of the cases were misplaced by the Dealing Official. Thereafter, the revision petitions were drafted in February, 2015. Later on, unfortunately, these matters got tagged with another matter - Rajesh Kumar Vs. TDI Infrastructure Ltd. Although, the petitioner has set up lame excuses, yet, in the interest of justice and to give an opportunity of being heard, keeping in view, the well known axiom "No man should be condemned unheard", we condone the said delay, subject to payment of Rs.20,000/- each, as costs, out of which, 50% be paid to the complainant and the balance to be deposited with Consumer Legal Aid Account of this Commission. The said amounts (Rs.10,000/- + Rs.10,000/-), be paid directly through demand draft drawn in favour of the 'complainant' and 'Consumer Legal Aid Account', respectively, within 30 days from the date of receipt of copy of this order, otherwise, the same shall carry interest @ 9% p.a., till realisation.
3. The main question swirls around the controversy, whether, a 'consumer' can have more than one residential house/flat, to come within the purview of the definition of 'consumer' under the C.P.Act, 1986?".
4. Now, let us turn to the merits of these cases. These two cases pertain to two flats measuring 250 sq.yds, each, in the project floated by M/s. TDI Infrastructure Pvt. Ltd., OPs 1 & 2, known as "TDI City, Kundli".
5. The District Forum observed, as under :-
"..... There are 2 plots in the name of the complainant, another two in the name of his father and two in the name of his brother, in the same project.
From the contents of the above affidavit, it is established that the complainant has purchased the plot for commercial purposes and therefore, he does not fall under the definition of consumer and the observation of this Forum is fortified by the latest judgment dated 02.09.2013 passed by the Hon'ble State Commission, Haryana, Panchkula in First Appeal No.500 of 2013 titled as M/s. Omaxe Limited Vs. Ms. Priyanka Gupta ..... ".
6. However, the State Commission accepted the appeal filed by the Complainant and directed the complainant to deposit the amount of EDC with the OPs without any interest and the OPs were directed to handover the possession of the flats. The complainant was also directed to pay the balance amount to the OPs along with interest @ 9% p.a., from due dates.
7. We have heard the counsel for the parties on this knotty question. The counsel for the complainant, in her written statement, has cited various authorities. She placed reliance on Laxmi Engineering Works Vs. P.S.G. Industrial Institute [(1995) 3 Supreme Court Cases 583]. She has also placed reliance on two judgments rendered by Bench No. 1. The first case is titled as Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd., CC No. 137, decided on 12.02.2015 and the second case is titled as GVSN Murthy Vs. M/s. Suchir India Infratech (P) Ltd. & Anr., FA No. 65 of 2014, decided on 11.08.2015, wherein it was held that "unless there is evidence on record to show that the complainant had bought more than one flat for the purpose of trading in the same, a bald assertion by the party that these had bought for the purpose of making profits is not sufficient to hold that the same were for "commercial purpose".
8. Counsel for the respondent/ complainant vehemently argued that the petitioner/OP has not brought any evidence to show that these flats were obtained for commercial purposes.
9. We are unable to agree with the contentions raised by her. The complaint of the respondent must stand on its legs. The general rule is that the consumer can purchase only one house, if he is asking for an exception, in that event, it is the complainant and nobody else who is to carry the ball in proving that he has not purchased the same for commercial purpose. The two judgments by Bench No. 1 cited above have different kind of facts and hardly go to dovetail with the facts of these cases. The facts of these cases speak for themselves.
10. The complaint is conspicuously silent, why, the complainant wants the possession of two flats. No explanation is forthcoming. During the arguments, the counsel for the complainant was required to explain this fact of insignificance. Moreover, it is interesting to note that the complainant is stationed at Panipat, and he is purchasing the flat/house at Kundli. The complaint is silent, why the complainant is purchasing six flats at Kundli, while residing at Panipat, though, the counsel for the complainant submits that the complainant wants to shift his business to Delhi. There is not even an iota of evidence to show that certain steps have been taken in this regard. The case is not bolstered with any cogent and plausible evidence.
11. During the arguments, the counsel for the complainant was informed that the complainant has tried to conceal the facts. The record shows that the complainant runs floral business, from Sector-29, HUDA, Panipat. How much property he owns in Panipat, is not disclosed. Counsel for the complainant was asked to file an affidavit to show how much property he owns, how much residential property he owns in Panipat. Instead of giving the necessary answer to these questions, she has moved an application for supplementary arguments to the effect that the case be referred to a Larger Bench. She has also cited few authorities, reported in FA 1287 of 2014, decided on 05.11.2015, M/s. Harsolia Motors Vs. M/s. National Insurance Co. Ltd., 2004 NCDRC 11, decided on 03.12.2004, Lucknow Development Authority Vs. M.K. Gupta, (1994) 1 SCC 243, Morgan Stanley Mutual Fund Vs. Kartick Das, (1994) 4 SCC 225, Rubi Chandra Dutta Vs. United India Insurance Co. Ltd., (2011) 11 SCC 269, RP No.639 of 2012, decided on 03.09.2012.
12. On the other hand, the counsel for the OPs/petitioner has cited a few authorities. In Jagmohan Chhabra & Anr. Vs. DLF Universal Ltd., IV (2007) CPJ 199 (NC), it was observed as under :-
"Complainant Nos. 1 and 2 booked on 27.8.1990, Town Houses proposed to be constructed by the opposite party on the ground, first and second floors of Plot No. B-3/20, DLF-1, Gurgaon. Possession thereof was to be given to the complainants within 3½ years from the date of booking. An agreement dated 30.7.1991 was also executed between the parties. Complainants further booked on 14.11.1995 an apartment bearing No. 308B proposed to be constructed by the opposite party in the name and style of Hamilton Court in Gurgaon. Possession of the said Town Houses was taken by the complainants on 15.9.2003, under protest. It is alleged that Town Houses had deficiencies in construction and design. In para No. 5 of the complaint, the breakup of the amount claimed has been shown thus:
(a) to (e) xxxx
2. We have heard Mr. K.P.S. Rao for the complainants on admission. Evidently, ground, first and second floors in Town Houses and apartment No. 308B in Hamilton Court were purchased by the complainants for earning profits and transaction is thus relatable to commercial purpose and complainants not being the "consumers" within the meaning of Section 2(l)(d) of Consumer Protection Act, 1986, the complaint itself is not maintainable under the Act. Moreover, for adjudicating the claim made, voluminous evidence will be needed and the complaint, therefore, cannot be decided in summary procedure under the Act. Hence, the complaint is disposed of with liberty reserved to the complainants to approach the Civil Court to seek the recover for the amount claimed from the opposite party".
13. In para No.5, of the complaint, the complainant himself mentions that those flats were to be given, 'on rent'. This Commission dismissed the complaint with the observation that the complainants were 'not' consumers. They were given liberty to approach the appropriate forum, as per law and may seek exclusion of time spent in prosecuting that complaint before the Commission by filing an application under Section 14 of the Limitation Act, 1963, as held by the Hon'ble Apex court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute [(1995) 3 Supreme Court Cases 583]. The Apex Court confirmed this order.
14. We took the same view in Sunil Gupta Vs. Today Homes and Infrastructure Pvt. Ltd., decided on 03.02.2014. In paras 7 & 8 of this judgment, this Bench held, as under :-
"7. This Commission, in case titled, Chilkuri Adarsh Vs. ESS ESS VEE Constructions, III (2012) CPJ 315, has held, as under :-
"Arguments of the learned Counsel have been considered. However, we are of the view that the complaint as presented cannot be maintained before a Consumer Fora, like ours, as the agreement was for the construction of two showrooms, which obviously relate to commercial purpose and the complainant, therefore, will not come within the definition of a 'consumer', as per Section 2(1)(d) of the Consumer Protection Act, 1986. This has been the consistent view of this Commission . It has held that even when a consumer has booked more than one unit of residential premises; it amounts to booking of such premises for investment/commercial purpose.
8. This Commission, in the case of Jagmohan Chabra and another Vs. DLF Universal Ltd., IV (2007) CPJ 199, in a somewhat similar case, held that the complaint was not maintainable, under the Consumer Protection Act, 1986. It had, therefore, disposed the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Hon'ble Supreme Court as Civil Appeal No. 6030-6031 of 2008, filed before the Supreme Court which stands dismissed, vide Apex Court's order dated 29.09.2008".
15. We think that there is no need to refer the matter to a Larger Bench. The facts of this case are peculiar and unique. The respondent/ complainant has not come to the Commission with clean hands. The counsel indulged in 'Hubble bubble' (confused talks) and did not clarify the position. She was asked to show the present status of the property owned by the complainant and what steps the respondent / complainant was going to take to shift to Delhi, but the story remains opaque (unclear), despite explanations. The Consumer Act is made for the genuine need and not for investors. Consequently, we accept the revision petitions, set aside the order of the State Commission and uphold the order of the District Forum. The complainant is given liberty to approach the civil court/appropriate forum, as per law.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER