State Consumer Disputes Redressal Commission
Jagdeep Singh Dhindsa vs Subash Chander Malik on 15 January, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 315 of 2015
Date of institution : 20.03.2015
Date of decision : 15.01.2016
1. Jagdeep Singh Dhinda son of Shri Basakha Singh, resident of
House No.272, Sector 70, SAS Nagar, Mohali and SCO
No.210-211,1st Floor, Sector 34,Chandigarh.
2. Gurdeep Singh son of Shri Basakha Singh, resident of House
No.232, Sector 70, Mohali.
.......Appellants-Opposite Parties
Versus
Subhash Chander Malik son of Shri Bhim Sain, resident of House
No.1785, Sector 23-B, Chandigarh.
........Respondent-Complainant
First Appeal against the order dated
22.1.2015 of the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Shri Vinod Kumar Gupta, Member
Shri Upjeet Singh Brar, Member Present:-
For the appellants : Shri A.K. Goel, Advocate. For the respondent : Shri S.C. Malik (In Person). JUSTICE GURDEV SINGH, PRESIDENT :
The appellants/opposite parties have preferred this appeal against the order dated 22.1.2015 passed by District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (in short, "District Forum"), vide which the complaint filed by Subhash Chander Malik, respondent/complainant, under Section 12 of the Consumer First Appeal No.315 of 2015 2 Protection Act, 1986 (in short, "the Act") was allowed and following directions were issued to the opposite parties:-
(a) to move a joint application along with the complainant to the Tehsildar, Kharar for demarcation of the land in question. Let this exercise be completed by the OPs within a period of one week from the receipt of certified copy of this order.
(b) get the demarcation of the property in question from the revenue authorities and handover the possession of the share of the complainant within a period of three months from the date of receipt of this order.
(c) to pay a lump sum compensation of Rs.10,000/- to the complainant on account of harassment, mental agony and harassment.
2. The complainant alleged, in his complaint, that the opposite parties are purchasing land in the areas of Mohali, Kurali, Balongi and Kharar for development and sale and they have acquired the land for developing residential/commercial buildings, which are being sold by them in the ordinary course of their business. In the year 2005-2006 opposite party No.1 gave clippings in the Classified columns of Sunday Daily Tribune regarding the sale of Showrooms at Kurali upon which he contacted that opposite party for purchasing Showroom No.7 and opposite party No.2 agreed to sell the plot measuring 11 x 40 feet out of the number of Showrooms showing himself to be the owner and developer of the land by describing the land in the Agreement; which was executed on 29.12.2005. That First Appeal No.315 of 2015 3 plot was sold for a consideration of Rs.3,40,000/-; out of which Rs.40,000/- was paid in cash and the balance amount of Rs.3,00,000/- was payable at the time of the execution of the sale deed, which was to be executed on or before 31.1.2006. As per the terms and conditions of the Agreement, he paid that balance amount of Rs.3,00,000/- to opposite party No.2 before the Sub Registrar by way of Pay Order No.642505 dated 23.1.2006 issued by the State Bank of India. The Agreement to Sell was executed on 25.1.2006 showing the sale price as Rs.3,00,000/- in respect of the plot measuring 0//1/2-3 marla from Khasra No.87//19/1/19 (1-2) situated in the revenue estate of Kurali, Tehsil Kharar, District Ropar. The boundaries of that plot were mentioned in that Agreement. The opposite parties in connivance with the Deed-Writer committed a fraud upon him by not depicting the boundaries of the plot in a separate map; which was to be prepared by the Deed-Writer and was to be attested by the Sub-Registrar. After the registration of the sale deed, the opposite parties were bound to hand over the possession of that plot to him but the same was not delivered despite repeated requests and service of notice under Section 80 CPC. Thus, the opposite parties deceived him and deprived of him of his hard-earned money by acting fraudulently and dishonestly; which is clear from the fact that in the Agreement and in the sale deed different addresses were given. On persistent requests opposite party No.1 agreed to deliver the possession of the plot subject to the payment of Rs.10,00,000/-, to which he resisted. Whenever he visited their office situated in Sector 34-A, he suffered First Appeal No.315 of 2015 4 mal-treatment and humiliation at their hands. They had been enjoying the possession of the land for all these years whereas he was deprived of the money paid as sale consideration. On account of the non-delivery of possession he suffered heart attack in the month of January 2014 and remained admitted in the PGI and suffered a loss of Rs.3,00,000/-; which was spent on his treatment. On account of non-delivery of the possession, he was suffering acute depression. These acts of the opposite parties amount to deficiency in service. He prayed for the issuance of following directions to them:-
i) to handover the possession of the land/plot, so sold to him;
ii) to pay compensation for the mental agony suffered by him at their hands for a continuous period of 8 years; and
iii) to pay cost of litigation.
3. The complaint was contested by the opposite parties, who filed joint written reply before the District Forum. In the written reply they disputed the allegations made in the complaint and averred that the total land at the spot was Industrial Unit and had been purchased by M/s Amar Cold Storage firm, of which opposite party No.1 was one of the partners. A piece of land measuring 1 Kanal; which was not disputed, was purchased by opposite party No.2 in the year 1979-80. They were coming in the possession of the land since long and they were not dealing with any other property nor they were the Property Dealers. The Agreement to Sell dated 29.12.2005 was executed between the complainant and opposite party No.2 and opposite party First Appeal No.315 of 2015 5 No.1 was never in picture at that time. That itself shows that it was opposite party No.2; who was the owner of that piece of land. In fact, the boundaries, as mentioned in the Agreement, were not that of the plot, which was so sold to the complainant. The land in question is triangular in shape and there is no question the same touching any of the sides of the Cold Storage. A number of requests were made by them to the complainant for visiting the spot for demarcation but he never cooperated for that purpose nor ever came to the spot to take the possession. Even today they are ready to hand over the possession of the share to the complainant. The complaint has been filed just to harass them. There is no question of the complainant suffering any loss on account of the alleged acts. Even after the receipt of the legal notice from the side of the complainant, they requested him to take possession of his share but he failed to do so. The matter in dispute is purely of civil nature and only the Civil Court has the jurisdiction to adjudicate upon the same. The complainant does not fall under the definition of the 'consumer' as contained in the Act. The complaint filed by him is not maintainable. He has not approached the District Forum with clean hands and the complaint is barred by time also. They prayed for the dismissal thereof with costs.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide aforesaid order.
First Appeal No.315 of 2015 6
5. We have heard the learned counsel for the appellants/opposite parties and the respondent/complainant in person and have carefully gone through the records of the case.
6. It has been submitted by the learned counsel for the appellants/opposite parties that the District Forum committed an illegality by entertaining and deciding the complaint in-spite of the fact that the complainant was not a 'consumer' as per the definition contained in the Act. Specific objection was taken by the opposite parties that the complainant was not a 'consumer' and the matter in dispute raised in the complaint could be adjudicated only by the Civil Court. In-spite of that those questions were never decided and the District Forum assumed the role of the Civil Court without recording a finding about any such deficiency in service on the part of the opposite parties. In fact, there was no question of hiring their services by the complainant and it was simply a case of the delivery of possession of the plot so purchased by the complainant and such a matter could not have been entertained by the District Forum. The order, so recorded by it, cannot be sustained and is liable to be set aside.
7. On the other hand, the complainant, by relying upon the judgment of the Hon'ble Supreme Court reported in 2015(2) LAW HERALD (SC) 1041 (Sanjay Kumar Joshi v. Municipal Board, Laxmangarh & Anr.), submitted that once he entered into an Agreement for the sale of the plot with the opposite parties, he became a 'consumer' and the non-delivery of possession by them amounted to deficiency in service. He clearly falls under the First Appeal No.315 of 2015 7 definition of the 'consumer' and the District Forum did not commit any illegality while issuing the directions, as mentioned in the impugned order, to the opposite parties. There is no ground for upsetting the well reasoned findings, so passed by the District Forum.
8. It is a case where the District Forum has crossed all the limits by exercising the jurisdiction which never vested in it. It assumed the role of the Civil Court and issued the directions, which it could not have issued. The directions, which can be issued under the Act, are enumerated in Section 14 and the first two directions, so given by the District Forum, are alien to those directions. Before adjudicating the dispute raised in the complaint by the complainant the District Forum was to record a finding as to whether the complainant falls under the definition of the 'consumer'? It had become the onerous duty of the District Forum to decide that question in view of the specific objection taken by the opposite parties in their written reply. That aspect was never touched by the District Forum for the reasons best known to it; may be ignorance on its part that only the 'consumer disputes' could have been adjudicated upon by it under the Act and not all the disputes.
9. The first question to be decided is, whether the complainant falls under the definition of 'consumer'? That definition is reproduced below:-
"2(1)(d) "consumer" means any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly First Appeal No.315 of 2015 8 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 purpose of this clause, "commercial purpose' does not include use by a person of goods bought and used by him First Appeal No.315 of 2015 9 and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;"
10. The present case is not a case of the sale of goods. The complainant had agreed to purchase the plot, in dispute, from the opposite parties; which was immovable property. The judgment, so relied upon by the complainant in support of his submissions, is not applicable to the facts of the present case. That was a case where it was held that where a commercial plot is purchased for the purpose of earning livelihood by way of self-employment the purchaser falls under the definition of 'consumer'. That was a plot, which was purchased from the Municipal Board and there were covenants to be performed by that Board and it was a case of hiring of the service. The question arises, whether the complainant hired the service of the opposite parties? His complaint is based upon the Agreement to Sell, Ex.C-1 and the Sale Deed, Ex.C-2. A perusal of those documents makes it clear that opposite party No.2 agreed to sell the area of 11 x 40 feet, fully detailed in the Agreement, Ex.C-1, for a total sale consideration of Rs.3,40,000/-. No such covenant was mentioned in the Agreement, which was to be performed by the opposite parties after the sale of that piece of land. On the basis of that Agreement to Sell the Sale Deed, Ex.C-2 was executed and even that Sale Deed does not contain any such covenant. Thus, the complainant never hired any service of the opposite parties. He does not fall under the definition of 'consumer' and, as such, the complaint filed by him was not competent.
First Appeal No.315 of 2015 10
11. The District Forum assumed the role of the Civil Court and issued those directions, which could not have been issued by it. The role of the District Forum for passing such an order is liable to be deprecated. We do not want to comment further on this order so passed by the District Forum.
12. In view of our above discussion, the appeal is allowed. The order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed.
13. The sum of Rs.5,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to appellant No.1-Jagdeep Singh Dhinda, as per the undertaking given by the appellants, by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER (UPJEET SINGH BRAR) MEMBER January 15, 2016 Bansal First Appeal No.315 of 2015 11