State Consumer Disputes Redressal Commission
Hoshiarpur Improvement Trust ... vs Bittu Son Of Barsati Ram on 23 September, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.655 of 2008
Date of institution : 2.7.2008
Date of decision : 23.9.2011
Hoshiarpur Improvement Trust Hoshiarpur, Chandigarh Road Hoshiarpur
through its Executive Officer.
.......Appellants
Versus
Bittu son of Barsati Ram, resident of Shop No.2, Near Mahavir Spinning Mills,
Phagwara Road, Hoshiarpur.
......Respondent
First Appeal against the order dated 13.5.2008 of
the District Consumer Disputes Redressal Forum,
Hoshiarpur.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the appellants : Shri R.G. Sahota, Advocate. For the respondent : Shri Manjul Sood, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
This order of ours will dispose of three appeals, namely, First Appeal No.655 of 2008 (Hoshiarpur Improvement Trust v. Bittu), First Appeal No.674 of 2008 (Hoshiarpur Improvement Trust v. Gobind) and First Appeal No.687 of 2008 (Hoshiarpur Improvement Trust v. Ramanjit Kaur) as common questions of facts and law are involved in all these appeals. The facts are taken from First Appeal No.655 of 2008 and the parties would be referred by their status in this appeal.First Appeal No.655 of 2008. 2
Version of the respondent:
2. The appellants had held a public auction on 30.12.2005 and the respondent had offered the bid in the auction for a shop built on an area measuring 35.86 sq. yards on freehold basis. He had offered the bid for an amount of Rs.7,15,000/- being the auction price. Rs.2,000/- were the security amount and Rs.500/- for agreement charges. The total amount payable by the respondent was Rs.7,17,500/-. The respondent had made the payment of Rs.7,19,288/- on different dates.
3. It was further pleaded that the appellants had executed an agreement of sale in favour of the respondent regarding shop No.2 at the rate of Rs.19,939/-
per square yard on 22.6.2006. The respondent had taken the possession. It was found that the area of the shop was 32.27 square yard i.e. it was less by 3.59 square yards. Therefore the respondent was cheated by the appellants. Hence the complaint for refund of Rs.71,581/- which was charged in excess by the appellants.
Version of the appellants:
4. The appellants filed the written reply. It was admitted that the appellants had held the auction and the respondent had offered the bid for shop No.2. The agreement of sale was executed in favour of the respondent at the rate of Rs.19,939/-. It was denied if the appellants had charged the amount in excess.
Dismissal of the complaint was prayed.
Proceeding before the District Forum:
5. Parties produced affidavits/documents in support of their respective contentions.
6. Learned District Forum accepted the complaint partly vide impugned judgment dated 13.5.2008. The appellants were directed to pay Rs.71,581/- on account of price of less area given to the respondent with interest at the rate of 9% per annum from the date of filing the complaint i.e. 24.9.2007 till realization.
A sum of Rs.2,000/- was also awarded as litigation expenses. First Appeal No.655 of 2008. 3
7. Hence the appeal.
Discussion:
8. The submission of the learned counsel for the appellants was that since the respondent had purchased the shop in an open auction, therefore, he was not the consumer qua the appellants. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as "U.T. Chandigarh Administration and anr. vs. Amarjeet Singh & Ors." 2009 (2) RCR (Civil) 401. Hence it was prayed that the appeal be accepted and the impugned judgment dated 24.9.2007 be set aside.
9. On the other hand, the submission of the learned counsel for the respondent was that since the area of the shop was less than assured by the appellants, therefore, the respondent was entitled to the refund of the amount charged in excess by the appellants. Reliance was placed on the judgment of the Hon'ble National Commission reported as "K.H.K. Rangam v. Tycoon Builders Madras & Anr." 2006(1) CPR 50 (NC). Hence it was prayed that there was no merit in the present appeal and the same be dismissed.
10. Record has been perused. Submissions have been considered.
11. Admittedly the shop was purchased by the respondent in an open auction from the appellants. Since the respondent is an auction purchaser, therefore, he is not a consumer qua the appellants under the Consumer Protection Act, 1986. It was observed by the Hon'ble Supreme Court in the judgment reported as "U.T. Chandigarh Administration and anr. vs. Amarjeet Singh & Ors." 2009 (3) CPR 97 (SC) as under:-
"14. 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 First Appeal No.655 of 2008. 4 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 site 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. In view of the law laid down by the Hon'ble Supreme Court in Amarjeet Singh's case (supra), this appeal is accepted and the impugned judgment dated 13.5.2008 is set aside.
13. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 2.7.2008. This amount of Rs.25,000/- with interest accrued thereon, if any, be refunded by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days.
First Appeal No.655 of 2008. 5
14. The respondent would be at liberty to resort to any other remedy available to him under the law, if he so advised.
15. The time spent by the respondent from the date of filing of complaint in the learned District Forum on 24.9.2007 till today would not be counted towards limitation in view of the judgment of the Hon'ble Supreme Court reported as "Trai Foods Ltd. v. National Insurance Co. and others" (2004) 13 SCC 656. First Appeal No.674 of 2008:
16. In view of the findings recorded in First Appeal No.655 of 2008, this appeal is also accepted and the impugned judgment dated 13.5.2008 is set aside.
17. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 2.7.2008. This amount of Rs.25,000/- with interest accrued thereon, if any, be refunded by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days.
18. The respondent would be at liberty to resort to any other remedy available to him under the law, if he so advised.
19. The time spent by the respondent from the date of filing of complaint in the learned District Forum on 24.9.2007 till today would not be counted towards limitation in view of the judgment of the Hon'ble Supreme Court reported as "Trai Foods Ltd. v. National Insurance Co. and others" (2004) 13 SCC 656. First Appeal No.687 of 2008:
20. In view of the findings recorded in First Appeal No.655 of 2008, this appeal is also accepted and the impugned judgment dated 13.5.2008 is set aside.
21. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 7.7.2008. This amount of Rs.25,000/- with interest accrued thereon, if any, be refunded by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days.
First Appeal No.655 of 2008. 6
22. The respondent would be at liberty to resort to any other remedy available to him under the law, if he so advised.
23. The time spent by the respondent from the date of filing of complaint in the learned District Forum on 10.4.2007 till today would not be counted towards limitation in view of the judgment of the Hon'ble Supreme Court reported as "Trai Foods Ltd. v. National Insurance Co. and others" (2004) 13 SCC 656.
22. The arguments in these cases were heard on 16.9.2011 and the orders were reserved. Now, the orders be communicated to the parties.
23. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(MRS. AMARPREET SHARMA)
MEMBER
September 23 , 2011 (BALDEV SINGH SEKHON)
Bansal MEMBER