State Consumer Disputes Redressal Commission
Rajesh Rana vs 1. U.K. Homes Pvt. Ltd., on 11 December, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 380 of 2014 Date of Institution : 08.12.2014 Date of Decision : 11/12/2014 Rajesh Rana son of Sh.Krishan Gopal Rana, resident of H.No.2104, Sector 38-C, Chandigarh. Appellant/Complainant V e r s u s 1. U.K. Homes Pvt. Ltd., SCO No. 68-69, Level IV, Sector 17-C, Chandigarh, through its Managing Director. 2. U.K. Homes Pvt. Ltd., SCO No. 68-69, Level IV, Sector 17-C, Chandigarh, through its General Manager Mr.Karan Gandodra. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by:Sh. Gaurav Bhardwaj, Advocate for the appellant. ----------------------------------------------------------------------------------------- First Appeal No. : 381 of 2014 Date of Institution : 08.12.2014 Date of Decision : 11/12/2014 Rajesh Rana son of Sh.Krishan Gopal Rana, resident of H.No.2104, Sector 38-C, Chandigarh. Appellant/Complainant V e r s u s 1. U.K. Homes Pvt. Ltd., SCO No. 68-69, Level IV, Sector 17-C, Chandigarh, through its Managing Director. 2. U.K. Homes Pvt. Ltd., SCO No.68-69, Level IV, Sector 17-C, Chandigarh, through its General Manager Mr.Karan Gandodra. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:Sh. Gaurav Bhardwaj, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This order shall dispose of the aforesaid two First Appeal Nos. 380 of 2014 and 381 of 2014 titled as Rajesh Rana Vs. U.K. Homes and another, arising out of the common majority order dated 29.10.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the consumer complaints, bearing No.340 of 2014 and 341 of 2014, filed by the complainant (now appellant), on the ground that the same were not maintainable, as he (complainant) did not fall within the definition of a consumer. At the same time, liberty was granted to the complainant, to resort to any other remedy, which may be available to him, for redressal of his grievance, under the provisions of law.
2. One Member of the District Forum, recorded the dissenting order.
3. The facts being identical, are culled out from the consumer complaint titled as Rajesh Rana Vs. U.K. Homes and another, bearing No.340 of 2014. According to the complainant, he alongwith his family members, agreed to purchase 4 plots, measuring 200 sq. yards each, i.e. one for himself, one for family of his son namely Kartik Rana, one for family of his nephew and other for family of his brother, namely Rakesh Rana, at a total consideration of Rs.24,00,000/- each. According to the complainant, at the time of booking of the said plots, the representative of the Opposite Parties, confirmed that, in case, they failed to get necessary approvals/ sanctions from the Competent Authorities, the amount so deposited towards the said units, would be refunded alongwith interest. It was stated that, as such, Advance Registration Form dated 14.06.2012, Annexure C-1 was filled by the complainant, in respect of one plot, measuring 200 sq. yards, in the project of the Opposite Parties. It was further stated that alongwith the said Registration Form, an amount of Rs.3 lacs, vide receipt dated 14.06.2012, Annexure C-3, was also paid by the complainant, to the Opposite Parties. The complainant was also issued certificate, Annexure C-2 confirming booking of the said plot. It was further stated that, since it was assured by the Opposite Parties, that necessary approvals/sanctions from the Competent Authorities, shall be obtained by them, within a period of six months, as such, the complainant waited for the said period, but they failed to do so. It was further stated that after waiting for a considerable time, left with no other alternative, the complainant invoked Clause 7 (d) of the terms and conditions, contained in the Advance Registration Form and requested the Opposite Parties, to refund the amount alongwith interest @ 12% P.A., from the date of deposit but to no avail. It was further stated that, even till date, the project of the Opposite Parties had not been approved, what to speak of development and possession of the unit, in question.
4. It was further stated that even the legal notice dated 24.03.2014, Annexure C-4 served upon the Opposite Parties did not evoke any response. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.3 lacs, alongwith interest @12% P.A., from the date of deposit; pay compensation, to the tune of Rs.1 lac, for mental agony and physical harassment; and cost of litigation to the tune of Rs.50,000/-.
5. Despite deemed service, none put in appearance, on behalf of the Opposite Parties, as a result whereof, they were proceeded against exparte, vide order dated 10.10.2014.
6. The complainant led evidence, in support of his case.
7. After hearing the Counsel for the complainant, and, on going through the evidence, and record of the case, the District Forum, vide its majority order, dismissed both the complaints, as stated above.
8. Feeling aggrieved, against the common majority order dated 29.10.2014, First Appeal Nos. 380 of 2014 and 381 of 2014 titled as Rajesh Rana Vs. U.K. Homes and another, have been filed by the appellant/complainant.
9. We have heard the Counsel for the appellant/complainant, at the preliminary stage, and, have gone through the evidence, and record of both the cases, carefully.
10. The Counsel for the appellant/complainant, submitted that though the Opposite Parties were exparte, in the District Forum, yet, it (District Forum), of its own, recorded the findings that the complainant did not fall with the definition of a consumer and that the consumer complaint was not maintainable. He further submitted that had the Opposite Parties, put in appearance, and filed joint written version, taking up an objection therein that the complainant did not fall within the definition of a consumer, and that the consumer complaint was not maintainable, the matter would have been different, as in that event, the District Forum could adjudicate upon the same. He further submitted that even otherwise, the complainant did not book two plots, the subject matter of the two complaints, out of the decision whereof, the instant appeals have arisen, for commercial purpose, but for residential purposes, of himself and his family members, referred to above. He further submitted that thus, by no stretch of imagination, it could be said that the complainant purchased the plots, in question, by way of investment, for commercial purpose, to gain huge profits by selling the same, as and when there was escalation in prices of the real estate. He further submitted that, as such, the order of the District Forum being illegal and invalid, is liable to be set aside.
11. The first question, that falls for consideration, is, as to whether, the District Forum, of its own, on the basis of the averments, contained in the complaint, could adjudicate upon the matter, as to whether the complainant fell within the definition of a consumer and whether, the complaint was maintainable or not. No doubt, the Opposite Parties were exparte, in the District Forum, and, as such, the question of their taking up an objection that the complainant did not fall within the definition of a consumer and that the complaint was not maintainable, did not at all arise, yet, in our considered opinion, it was the duty of the District Forum, decide such questions. A similar question fell for determination in Consumer Complaint No.135 of 2011 , Ramesh Kumar Sihan Hans Vs. Goyal Eye Institute and others, decided on 30.03.2012, by the National Consumer Disputes Redressal Commission, New Delhi. The National Commission, in the aforesaid case, held that Section 12(3) of the Act, provides the procedure to be followed by a District Forum, State Commission, or National Commission on receipt of a complaint. It envisages examination of the complaint, with a view to find out, if going by the averments and the allegations, made in the complaint, it (complaint) was fit to be admitted and proceeded with. Such examination of the complaint would require consideration of the following aspects:
(i) Whether complainant is a consumer within the meaning of Section 2 (1) (d) of the Act, and is entitled to invoke the original jurisdiction of a consumer forum?
(ii) Whether the complaint raises one or more consumer disputes viz., unfair trade practice or restrictive trade practice, defects in goods or deficiency in service as defined under the Act?
(iii) Whether consumer forum has territorial and pecuniary jurisdiction to entertain the complaint?
(iv) Whether the complaint has been filed within the period of limitation, as prescribed by section 24(a) of the Act, and?
(v) Whether complaint is accompanied with such amount of fee as has been prescribed?
12. From what has been laid down, in the aforesaid case by the National Consumer Disputes Redressal Commission, New Delhi, it is clearly evident that it was the duty of the District Forum, to find out, from the averments, contained in the complaint, as to whether, the complainant fell within the definition of a consumer, and whether, the complaint was maintainable or not. The mere fact that the Opposite Parties did not put in appearance, despite service, and were proceeded against exparte, did not debar the District Forum, from deciding the questions, as to whether, the complainant fell within the definition of a consumer and whether, the complaint was maintainable or not. The submission of the Counsel for the appellant/complainant, to the effect, that in the absence of any objection, on the part of the Opposite Parties, as they were exparte, in the District Forum, the questions, aforesaid, could not be adjudicated upon by it (District Forum), being devoid of merit, must fail, and the same stands rejected.
13. The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer or not? For proper decision of this question, the provisions of Section 2(1)(d) and 2(I)(o), defining the consumer and service respectively are extracted 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 then 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 purpose]; Added by Act 62 of 2002 w.e.f. 15.03.2003.
[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer 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;] Section 2(1)(o) defines service as under:-
(o) "service" means service of any description which is made available to potential 16 [users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
14. Admittedly, in both the complaints, out of the decision whereof, the instant appeals have arisen, in paragraph No.3, it was stated by the complainant, in clear-cut terms, that he alongwith his family members, agreed to purchase 4 plots, measuring 200 sq. yards each, i.e. one for himself, one for family of his son namely Kartik Rana, one for family of his nephew and other for family of his brother, namely Rakesh Rana, at a total consideration of Rs.24,00,000/- each. It means that the complainant booked 04 plots, price whereof was Rs.24 lacs each. Out of the four plots, the purchase of two plots, is established from the averments contained in the two complaints, referred to above, filed by him, in the District Forum, out of decision whereof the instant appeals have arisen. It is evident from the District Forum record, that the complainant had booked one plot, referred to above, with the Opposite Parties, vide Advance Registration Form dated 14.06.2012, Annexure C-1, measuring 200 sq. yards, in the project of the Opposite Parties, for which he paid an amount of Rs.3 lacs, as advance money, vide receipt No.508 dated 14.06.2012, Annexure C-3. At the same time, it is also evident that the complainant had also filed another consumer complaint, bearing No.341 of 2014, on 09.07.2014, titled as Rajesh Rana Vs. U.K. Homes and another, before the District Forum, in respect of another plot, in the same project of the Opposite Parties, wherein also, vide Advance Registration Form dated 14.06.2012, Annexure C-1, he (complainant) purchased another plot, measuring 200 sq. yards, for which also, he paid an amount of Rs.3 lacs, as advance money, vide receipt No.468 dated 14.06.2012, Annexure C-3. Not only this, a clear-cut admission had been made by the complainant, in paragraph No.3 of the legal notice dated 24.03.2014, Annexure C-4, served upon Opposite Parity No.1, to the effect that my client agreed to purchase two plots measuring 200 square yards each, at total consideration money of Rs.24 lacs, each. Thus, it is established that the complainant purchased the aforesaid two units, in the same project of the Opposite Parties, at Zirakpur, for commercial purpose i.e. for investment, to sell the same, in the market, as and when there was escalation in prices of the real estate. The complainant, thus, availed of the services of the Opposite Parties, for commercial purpose, to earn huge profits. In Smt. Madhu Saigal and another Vs. M/s Omaxe Buildhome Pvt. Ltd. and another, Consumer Complaint No.270 of 2013, decided on 20.03.2014, by the National Consumer Disputes Redressal Commission, New Delhi, two senior citizens, namely Smt. Madhu Saigal, aged 73 years and Mr. Ashok Saigal, aged about 76 years, husband and wife, invested their life savings, to the tune of over Rs.2 crores, for the purchase of two apartments, in a project, in the hope of spending their retirement life, with their son, Sh. Amit Saigal. In those circumstances, the National Consumer Disputes Redressal Commission, New Delhi, held that two apartments were purchased by the husband and wife, by way of investment, i.e. for commercial purpose, and they did not fall within the definition of consumers, and the consumer complaint was not maintainable. In Economic Transport Organization Vs.Charan Spinning Mills (P) Ltd., & Anr., I (2010) CPJ 4 (SC), a Constitution Bench of Hon`ble five Judges of the Supreme Court held that if the goods are purchased or the services are availed of, by the complainant, for any commercial purpose, then it does not fall within the definition of a consumer, and consequently, the consumer complaint will not be maintainable, in such cases. Similar principle of law, was laid down, in Jag Mohan Chhabra & Anr. Vs. DLF Universal Ltd., IV (2007) CPJ 199 (NC). Against this decision, Civil Appeal No. 6030-5031 of 2008, was filed, which was also dismissed, by the Supreme Court of India, on 29.09.2008. In Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd. 2011 (I) SCC 525 and Sanjay D.Ghodawat Vs. R.R.B.Energy Ltd., IV (2010) CPJ 178 (NC), a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, New Delhi, similar principle of law, was laid down. Similar view was taken by the National Commission in Ms. Saavi Gupta Vs. M/s Omaxe Azorim Developers Pvt. Ltd. and others, Consumer Complaint No.208 of 2012, decided on 1.10.2012. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. It is, therefore, held that since the complainant did not fall within the definition of a consumer, the consumer complaint was not maintainable. The District Forum was also right in holding so. The findings of the District Forum, in this regard, being correct, are affirmed.
15. In view of the above discussion, it is held that the common majority order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
16. For the reasons recorded above, both the appeals being devoid of merit, must fail, and the same are dismissed, at the preliminary stage, with no order as to costs. The majority order of the District Forum is upheld.
17. Certified copy of this order, be placed in the file of First Appeal No. 381 of 2014 titled as Rajesh Rana Vs. U.K. Homes and another.
18. Certified copies of this order, be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion Pronounced.
December 11, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg STATE COMMISSION (First Appeal No. 380 of 2014) Argued by: Sh. Gaurav Bhardwaj, Advocate for the appellant.
Dated the 11th day of December__2014 ORDER Vide our detailed order of the even date, recorded separately, this appeal has been dismissed, at the preliminary stage, with no order as to costs. The majority order of the District Forum has been upheld.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Rg STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. :
381 of 2014 Date of Institution :
08.12.2014 Date of Decision :
11/12/2014 Rajesh Rana son of Sh.Krishan Gopal Rana, resident of H.No.2104, Sector 38-C, Chandigarh.
Appellant/Complainant V e r s u s
3.
U.K. Homes Pvt. Ltd., SCO No. 68-69, Level IV, Sector 17-C, Chandigarh, through its Managing Director.
4. U.K. Homes Pvt. Ltd., SCO No.68-69, Level IV, Sector 17-C, Chandigarh, through its General Manager Mr.Karan Gandodra.
....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:Sh. Gaurav Bhardwaj, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT Vide our separate detailed order of the even date, recorded in connected First Appeal No. 38 0 of 2014 titled as Rajesh Rana Vs. U.K. Homes and another, this appeal has been dismissed, at the preliminary stage, with no order as to costs. The majority order of the District Forum has been upheld
2. Certified copy of the main order, passed in First Appeal No. 38 0 of 2014 titled as Rajesh Rana Vs. U.K. Homes and another, be placed on this file also.
3. Certified copies of the main order aforesaid, alongwith this order, be sent to the parties, free of charge.
4. The file be consigned to Record Room, after completion.
Sd/- Sd/- Sd/-
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Rg