Delhi

StateCommission

FA/12/434

PARSVNATH DEVELOPERS LTD. - Complainant(s)

Versus

AJAY KUMAR - Opp.Party(s)

11 Jan 2017

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                             Date of Decision: 11.01.2017

First Appeal No. 434/2012

(Arising out of the order dated 27.04.2010 passed in Complaint Case No. 53/2010 by the District Consumer Disputes Redressal Forum (New Delhi) Barracks Kasturba Gandhi Marg, New Delhi-110001)

In the matter of:

M/s Parsvnath Developers Ltd.

Parsvnath Metro Tower

Near Shahdara Metro Station

•  

Delhi-110032                                        .........Appellant

 

Versus

 

Lt. Col. Ajay Kumar

26, Inf. DOU

C/o 56, APO

Satwari, Jammu                          ..........Respondent

 

                                                                  

CORAM

 

N P KAUSHIK                         -                  Member (Judicial)

 

1.         Whether reporters of local newspaper be allowed to see the judgment? Yes

2.         To be referred to the reporter or not? Yes

 

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGEMENT

1.     Present appeal is directed against the orders dated 27.04.2010 passed by the Ld. District Forum VI New Delhi. Vide impugned orders Ld. District Forum passed the following directions  against the OP/appellant herein i.e. M/s Parsvnath Developers Ltd. 19 Barakhamba Road New Delhi:

“1. OP will get registered the property in the name of the complainant and also bear the cost of additional expenditure if any without taking any charges from the complainant.

2. OP will pay Rs. 1,00,000/- to the complainant on account of compensation towards mental agony and harassment.

3. OP will pay Rs. 10,000/- to the complainant towards litigation cost.”

 

2.         Admittedly the complainant Lt. Col. Ajay Kumar booked a shop bearing no. SF 14 Bibhab Plaza Greater Noida in June 2005.After making complete payment towards sale consideration, the complainant submitted stamp papers to the OP/appellant for execution of the sale deed on 28.06.2006. It is also the admitted case of the parties that the property in question was handed over to the complainant on 28.06.2006. Complainant did not hear anything from the OP. Vide its letter dated 06.09.2006, the complainant enquired from the OP the status of his case. OP vide its letter dated 27.09.2006 informed the complainant that there was a hike in the stamp duty and for that purpose complainant was asked to purchase fresh stamp papers of the value of Rs. 39,200/-. Before proceedings further, it may be mentioned here that the aforesaid hike in the revenue duty took place on 01.07.2006. Complainant vide its letter dated 21.10.2006 informed the OP that the delay in execution of the sale deed was on his part and asked the OP to pay the deficit stamp duty. OP vide its letter dated 11.11.2006 again demanded the additional stamp duty of Rs. 39,200/-.
3.         Complainant filed the complaint bearing no. 530/2007 in District Forum VI in the month of June 2007. It was filed through the counsel Sh. Muneesh Kumar Sharma Advocate. Written version in the said complaint was filed by the OP/appellant herein on 08.02.2008. In the said written version OP raised an objection to the effect that the complainant had purchased property for commercial purposes and for that reason ‘consumer complaint’ was not maintainable. OP also submitted that the sale deed of the property in question stood executed on 23.11.2007. OP also placed on record a photocopy of the sale deed in question. The complaint i.e. complaint bearing no. 530/2007 was dismissed in default on 10.12.2008.
4.         Complainant filed another complaint in District Forum VI New Delhi on 19.01.2010 bearing no. 53/2010. Complainant referred to the correspondence between the parties that took place uptil 11.11.2006. Vide this letter OP had asked the complainant to pay the additional stamp duty of Rs. 39,200/-. Complainant in his second complaint submitted that his counsel did not inform him of the status of his earlier complaint till December 2008. His counsel however told him that he was suffering from high blood pressure and for that reason forgot the matter in question. Complainant thereafter discovered that his complaint stood dismissed in default on 10.12.2008. Prayer made by the complainant in the second complaint is reproduced below:

“1. Direct the OP to get register the property in the name of the complainant forthwith and also bear the cost of additional expenditure, if any, without taking any extra charges from the complainant.

2. Direct the Opposite Party to pay a sum of 300000/- as compensation to the complainant for mental agony and harassment caused to the complainant.

3. Direct the Opposite Party to pay a sum of Rs. 50,000/- as cost and litigation expenses.

4. Pass any other order that this Hon’ble Court may deem fit and proper in the circumstances of the case.”

 

5.         Ld. District Forum vide its orders dated 03.03.2010 proceeded against the OP/appellant herein ex-parte on the grounds that the OP had refused to accept the service. Notice for service upon the OP was given to the counsel for the complainant on the very first date of hearing and the same was given to the counsel for the complainant. Counsel for the complainant as per impugned orders filed affidavit stating that the OP had refused to accept notice.
6.         Ld. District Forum on the basis of un-rebutted averments and the evidence of the complainant passed the orders dated 27.04.2010 which is impugned before this Commission.
7.         Present appeal has been filed on the grounds inter-alia that the sale deed in respect of the property stood executed on 23.11.2007. OP also submitted that he was not duly served with the notice of the second complaint referred to above.
8.         In his reply the complainant has not specifically denied the contention that the sale deed of the property in question stood executed on 23.11.2007. Complainant however reiterated that the service of notice on the OP had duly taken place.
9.         I have heard the Counsel for the OP/appellant Sh. Rakesh Bhardwaj Advocate and Counsel for the complainant/respondent Sh. Muneesh Kumar Sharma Advocate.
10. A careful perusal of the record shows that the sale deed stood executed on 23.11.2007 and the same was averred before the District Forum by the OP in its written version filed on 08.02.2008. In the second complaint, complainant never disclosed the factum of the sale deed having been executed on 23.11.2007. Sale deed bears the signatures of the complainant as per requirement of law. Execution of sale deed is not denied by the complainant. In its first complaint, complainant had sought the relief of directions against the OP for getting the sale deed executed. Execution of sale deed having taken place immediately after the filing of the first compliant, no such directions could have been passed. Complainant at the most was entitled to the relief of compensation. After dismissal of the first complaint in default, complainant chose to file a second complaint concealing the material fact of the sale deed having been executed. A ‘consumer’ is entitled to the relief of equity only if he does equity. Complainant put his signatures and a photograph on the sale deed with his eyes wide open. He never disclosed the said fact either in his second complaint or in his reply to the present appeal. Clearly, the second complaint was not maintainable as such. Complainant is thus guilty of concealment of material facts. He has been fighting a luxurious litigation.
11. During the course of arguments Ld. Counsel for the Complainant Sh. Muneesh Kumar Sharma stated at the bar that the complainant disposed of the property in question in the year 2010. Having once sold the property, complainant ceases to be a “consumer”. Law is well settled by the Hon’ble National Commission in the cases of:

i. Honda Cars India Ltd. v. Jitender Singh MadanIV 2013 CPJ 258.

 

ii. Pasha v. TATA Motors & Ors. IV 2011 CPJ 107

 

iii. TATA Motorsv. Huzoor Maharaj Baba Desh Raj & Anr.in  Revision Petition No. 2562/2012 decided on 25.09.2013

 

iv. TATA Motorsv. Manoj Gadi & Anr.II 2014 CPJ 665.

 

12. Before parting it may be mentioned here that the complainant booked a shop which was a purely commercial transaction and the complainant did not fall within the ambit of the definition “consumer” as provided under Section 2(1)(d) of the Consumer Protection Act 1986. It is not the stand of the complainant that he purchased the said shop exclusively for the purpose of earning his livelihood by means of self-employment. Thisbrings him outside the purview of the expression “consumer”.
13. In view of the reasons given above, I am of the considered opinion that the complaint filed by the complainant was not maintainable in the eyes of law. Complainant as discussed above is also guilty of concealment of material facts. Appeal is, therefore, allowed. Impugned orders dated 27.04.2010 are, therefore, set aside. Complaint filed by the complainant in the District Forum is dismissed. Appeal is accordingly disposed of.
14. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.
15. FDR, if any, deposited by the appellant be released as per rules.

 

 

(N P KAUSHIK)

MEMBER (JUDICIAL)

​