Supreme Court - Daily Orders
Swati Agarwal vs Mist Avenue Pvt Ltd on 17 July, 2019
Bench: Uday Umesh Lalit, Vineet Saran
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s). 5610/2019
(@ SLP(C ) No.2711/2019)
SWATI AGARWAL & ANR. Appellant(s)
VERSUS
MIST AVENUE PVT LTD & ANR. Respondent(s)
O R D E R
Leave granted.
The complaint case No.872 of 2018 was filed by the appellants before the State Commission, Delhi with following prayers:
“10. The need of the complainants was for an office unit for personal use. The entire effort of the complainants have gone in vain in spite of paying sum of Rs.21,15,822/-. The opposite party are liable to pay the damages for loss of opportunity to the complainant which includes the compensation for the land being retained by them till date in spite of receiving the payment. The damages for loss of opportunity including the compensation and legal costs comes to Rs.5,00,000/-” It was asserted in the complaint that the complainant had booked an office space of 667 sq.ft. in a project by the name of “MIST PRIME” launched by the present respondent and had paid Rs,21,15,822/- out of the agreed consideration of Rs.24,67,900/-
as mentioned in para 10 of the complaint.Signature Not Verified Digitally signed by INDU MARWAH Date: 2019.07.23 13:53:39 IST
Reason: At the outset, the respondent submitted that the complaint was not maintainable and the action was not maintainable before the 2 Consumer Forum in as much as the office space was booked by the present appellant for commercial purpose and as such the appellant would not be “Consumer” within the meaning of Consumer Protection Act, 1986. The State Commission accepted the plea raised by the respondent and held as under:
“7. As admittedly, the commercial unit was booked by the complainants, it is obvious that the services of the OP were availed for commercial purpose and as such, in view of the exclusion carved out under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 the complainants are not the “consumers” and as such they cannot maintain the consumer complaint. In view of the above discussion, the instant complaint is not maintainable. Hence the complaint is rejected with liberty to the complainant to avail of their remedy by moving appropriate forum.” The appellants being aggrieved challenged the determination made by the State Commission by filing F.A. No.1712 of 2018 before the National Consumer Disputes Redressal Commission, New Delhi.
The view taken by the State Commission was affirmed by the National Commission observing that “except urging that the complainant needed office space for personal use”. Nothing further was placed on record that the complainant was consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. .
In this appeal challenging the decision of the National Commission, we heard Ms. Harinder Kaur, learned counsel for the appellants and Ms. Astha Sharma, learned counsel for the respondents.3
Learned counsel for the respondents relied upon the order dated 8.7.2018 of this Court in Shikha Birla vs. DLF Raitailers Developers Ltd. and order dated 1.2.2013 of the National Commission which was the subject matter to challenge in the said appeal. She further submitted that a separate complaint Consumer Complaint has already been pending with the State Commission wherein another office unit booked by the very same consumer is presently the subject matter.
The learned counsel for the appellants on the other hand submitted that at the preliminary stage, the Consumer Forum ought to go by the basic averments made in the complaint to determine whether it has jurisdiction to entertain the complaint in question. In her submission, the jurisdictional issues ought to be considered on basic averments made in the compliant and if at all there be any counter theory coming from the respondents. The matter will be eminently suitable to consider purely on merits. It would be open to the Consumer Forum to determine whether it would be open to the Consumer Forum after the relevant material on evidence is produced on record to hold whether the action is maintainable before the Forum or not, but at the preliminary stage the matter ought to be considered at the averments made in the complaint.
She relied upon the principle emanating from the similar situations governing under Order VII Rule 11 CPC. The facts indicate that the complaint did make an averment 4 that the office space was required by the appellant-complainant for personal use, whether or not, the complaint satisfies the requirement and whether the complainant is a consumer or not could be determined only after the material evidence is placed on record.
In our view, the Consumer Forum ought to have determined the issue at the preliminary stage, more particularly when the relevant assertions or averments in the complaint are to the contrary. We therefore, allow this appeal, set aside the orders passed by the State Commission and National Commission and restore the original complaint before the State Commission, Delhi.
We have not expressed and shall not be taken to have expressed any opinion on the merits of the matter which shall be gone into independently by the concerned Forum.
........................J. (UDAY UMESH LALIT) .......................J. (VINEET SARAN ) New Delhi July 17,2019.5
ITEM NO.17 COURT NO.8 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 2711/2019
(Arising out of impugned final judgment and order dated 27-11-2018 in FA No. 1712/2018 passed by the National Consumers Disputes Redressal Commission, New Delhi) SWATI AGARWAL & ANR. Appellant(s) VERSUS MIST AVENUE PVT LTD & ANR. Respondent(s) IA No. 14933/2019 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) Date : 17-07-2019 These matters were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE VINEET SARAN For Appellant(s) Mr. Sarvesh Singh, AOR For Respondent(s) Ms. Astha Sharma, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted.
The complaint case No.872 of 2018 was filed by the appellants before the State Commission, Delhi with following prayers: 6
“10. The need of the complainants was for an office unit for personal use. The entire effort of the complainants have gone in vain in spite of paying sum of Rs.21,15,822/-. The opposite party are liable to pay the damages for loss of opportunity to the complainant which includes the compensation for the land being retained by them till date in spite of receiving the payment. The damages for loss of opportunity including the compensation and legal costs comes to Rs.5,00,000/-” It was asserted in the complaint that the complainant had booked an office space of 667 sq.ft. in a project by the name of “MIST PRIME” launched by the present respondent and had paid Rs,21,15,822/- out of the agreed consideration of Rs.24,67,900/- as mentioned in para 10 of the complaint.
At the outset, the respondent submitted that the complaint was not maintainable and the action was not maintainable before the Consumer Forum in as much as the office space was booked by the present appellant for commercial purpose and as such the appellant would not be “Consumer” within the meaning of Consumer Protection Act, 1986. The State Commission accepted the plea raised by the respondent and held as under:
“7. As admittedly, the commercial unit was booked by the complainants, it is obvious that the services of the OP were availed for commercial purpose and as such, in view of the exclusion carved out under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 the complainants are not the “consumers” and as such they cannot maintain the consumer complaint. In view of the above discussion, the instant complaint is not maintainable. Hence the complaint is rejected with liberty to the complainant to avail of their remedy by moving appropriate forum.” 7 The appellants being aggrieved challenged the determination made by the State Commission by filing F.A. No.1712 of 2018 before the National Consumer Disputes Redressal Commission, New Delhi.
The view taken by the State Commission was affirmed by the National Commission observing that “except urging that the complainant needed office space for personal use”. Nothing further was placed on record that the complainant was consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. .
In this appeal challenging the decision of the National Commission, we heard Ms. Harinder Kaur, learned counsel for the appellants and Ms. Astha Sharma, learned counsel for the respondents.
Learned counsel for the respondents relied upon the order dated 8.7.2018 of this Court in Shikha Birla vs. DLF Raitailers Developers Ltd. and order dated 1.2.2013 of the National Commission which was the subject matter to challenge in the said appeal. She further submitted that a separate complaint Consumer Complaint has already been pending with the State Commission wherein another office unit booked by the very same consumer is presently the subject matter.
The learned counsel for the appellants on the other hand submitted that at the preliminary stage, the Consumer Forum ought to go by the basic averments made in the complaint to determine 8 whether it has jurisdiction to entertain the complaint in question. In her submission, the jurisdictional issues ought to be considered on basic averments made in the compliant and if at all there be any counter theory coming from the respondents. The matter will be eminently suitable to consider purely on merits. It would be open to the Consumer Forum to determine whether it would be open to the Consumer Forum after the relevant material on evidence is produced on record to hold whether the action is maintainable before the Forum or not, but at the preliminary stage the matter ought to be considered at the averments made in the complaint.
She relied upon the principle emanating from the similar situations governing under Order VII Rule 11 CPC.
The facts indicate that the complaint did make an averment that the office space was required by the appellant-complainant for personal use, whether or not, the complaint satisfies the requirement and whether the complainant is a consumer or not could be determined only after the material evidence is placed on record.
In our view, the Consumer Forum ought to have determined the issue at the preliminary stage, more particularly when the relevant assertions or averments in the complaint are to the contrary. We therefore, allow this appeal, set aside the orders passed by the State Commission and National Commission and restore the original complaint before the State Commission, Delhi. 9 We have not expressed and shall not be taken to have expressed any opinion on the merits of the matter which shall be gone into independently by the concerned Forum.
Pending applications, if any, shall also stands disposed of.
(INDU MARWAH) (RAJINDER KAUR) COURT MASTER BRANCH OFFICER