Delhi

East Delhi

CC/527/2014

ARUN PANDEY - Complainant(s)

Versus

AMRAPALI SAPPHIRE DEV. - Opp.Party(s)

22 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 527/14

 

1. Shri Arun Pandey
2. Mrs. Ruchika Pandey

R/o C-58, South Moti Bagh

New Delhi – 110 021                                                                 ….Complainants

 

Vs.

 

1. Amrapali Sapphire Developers Pvt. Ltd.

307, 3^rd Floor, Nipun Towers

Karkardooma Community Centre

Delhi – 110 092

 

2. Mr. Anil Kumar Sharma

(CMD – Amrapali Group, President - CREDAI)

83, AGCR Enclave, New Delhi 110 092                                                ….Opponents

 

Date of Institution: 21.07.2014

Judgment Reserved for : 22.09.2016

Judgment Passed on : 04.10.2016

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari  (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By : Shri Sukhdev Singh (President)

 

JUDGEMENT

The complainant Shri Arun Pandey alongwith co-complainant    Mrs. Ruchika Pandey have filed a complaint under Section 11(a) of the Consumer Protection Act against M/s. Amrapali Sapphire Developers Pvt. Ltd. for direction to make registry in their favour alongwith compensation for an amount of Rs. 2,28,000/- with 18% interest and    Rs. 10,00,000/- on account of loss of peace, mental agony and cost. 

2.        It has been alleged that complainants purchased a flat in the project of Amrapali Sapphire, Sector-45, Noida, UP bearing Tower-F, Unit No. 1201 from the owner of the flat Mr. Sakkun Tickoo and Mrs. Sarla Tickoo on 09.09.2012, by agreement to sell and paid a sum of                 Rs. 13,50,000/- at the time of execution of sale deed.  They paid the balance amount of Rs. 24,02,592 through DD No. 226733 dated 05.01.2013 after taking the loan from UCO bank.  Thereafter, they made an application to the opposite party for transfer of the said flat in the name of the complainant on 06.01.2013.  As per the payment pattern of Mr. Sakkun Tickoo, an interest of Rs. 4,27,761/- was required to be paid before getting the flat transferred.  On negotiation, this amount was reduced to Rs. 3,27,761/-, which was paid by Mr. Sakkun Tickoo against interest part through cheque no. 068311 dated 14.01.2013.  It is further stated that after clearance of all the dues from the first owner              Mr. Sakkun Tickoo, the complainants made follow up with officials of OP for the transfer of the property in their favour and to submit legal documents to UCO bank.  After various meetings, the OP issued permission to mortgage to the UCO bank finally on 02.04.2013 and the bank issued a letter to the complainant on 22.04.2013 stating that they have received the documents from the OP.

It has been stated that as per the flat buyer agreement of dated 11.11.2009 between the opposite party and buyer, the possession was proposed to be handed over in December, 2011.  The complainant received a demand letter and progress report from OP on 03.06.2013 for the payment of Rs. 6,73,550/- and when they visited the site, they found that progress report shown was counterfeit.  The complainant sent many letters to the OP dated 08.06.2013, 17.06.2013 and 26.06.2013 stating actual condition of site and seeking adjustment of delayed penalty.  They also sent a mail to the OP for the adjustment of penalty on 11.07.2013.  It is further stated that the complainant received a NOC from the OP on 26.07.2013 with confirmation of full and final payment and handing over the possession.  The complainant found that the flat was still in construction phase hence requested to the OP to provide the flat in living condition at the earliest. 

The complainant took actual possession on 31.08.2013.  After receiving the possession, the complainant followed up for the registry of the flat and delayed payment, which was Rs. 2,28,000/- till the possession from 01.01.2012 to 31.0.2013 by a letter of dated 06.01.2014.  However, the OP did not pay any heed to the request.  Thus, the complainant has prayed for (a) registry in favour of the complainant, (b) payment of Rs. 2,28,000/- with 18% interest on account of delay, (c) Rs. 10,00,000/- on account of loss of peace, mental agony and (d) cost of the complaint etc. etc. 

In reply by M/s. Amrapali Sapphire Developers Pvt. Ltd, they have taken various pleas such as stating that the complainants had purchased the said flat from original allottees Mr. Sakkun Tickoo and Mrs. Sarla Tickoo and requested for transfer vide their application of dated 06.01.2013, which was transferred in the name of the complainants on 14.03.2013.  The complainants and original allottees had given undertaking/indemnity in favour of OP-1.  It has further been stated that the complainants had sold the said flat to one Mr. Rameshwar Jaiswal by the agreement to sell dated 03.06.2014 and after selling the said flat to Mr. Rameshwar Jaiswal, the complainants applied to OP-1 for transfer of the said flat in favour of Mr. Rameshwar Jaiswal vide application of dated 05.07.2014, which was transferred on 25.07.2015 in favour of               Mr. Rameshwar Jaiswal. 

The complainants and transferee Mr. Rameshwar Jaiswal had given undertaking/indemnity in favour of OP-1.  The entire sale consideration has been received by the complainants from Mr. Rameshwar Jaiswal through DD, issued by Bank of Maharashtra dated 17.07.2014 for an amount of Rs. 20,99,000/-.  It has further been stated that the complainants were not allottees of the said flat and had purchased the said flat from original allottee vide agreement to sell dated 09.09.2012 for a total sale consideration of Rs. 43,35,600/- and thereafter sold the said flat to Mr. Rameshwar Jaiswal vide agreement to sell dated 03.06.2014 for total consideration of Rs. 60,00,000/- and earned good profit. 

Resale of the subject flat by the complainants was a commercial transaction and not covered under the provisions of the CPA.  After selling the said flat, the complainants were no more related with OP-1 in any manner.  They have relinquished/transferred/surrendered all their rights, title and interest in the subject flat/property in favour of            Mr. Rameshwar Jaiswal vide agreement to sell dated 03.06.2014.  Thus, the complainants have no locus to file the present complaint.  They have submitted an undertaking/indemnity dated 05.07.2014 to OP-1 for relinquishing/surrendering/transferring of their rights, title and interest in the sale flat in favour of Mr. Rameshwar Jaiswal after obtaining permission from OP-1.

The complainants have purchased the said flat for re-sale, which was evident from the agreement to sell dated 03.06.2014.  Thus, it has been stated that the complainants who obtained the goods for resale and commercial purposes, were not consumer.  They have also taken the plea with regard to territorial jurisdiction as well as pecuniary jurisdiction.  They have also taken various other pleas, but their main pleas remain the same, which have been stated herein.

3.        The complainants have filed rejoinder to the WS of OPs, wherein they have controverted the pleas taken in the WS and reasserted their pleas.

4.        In support of their case, the complainants Shri Arun Pandey and Mrs. Ruchika Pandey have examined themselves who have deposed on affidavits.  In their affidavits, they have deposed the facts, which have been stated in the complaint.

5.        In defence, M/s. Amrapali Sapphire Developers Pvt. Ltd. (OP-1) has examined Shri Kamlesh Singh Yadav, their authorised representative, who have deposed on affidavit.  He has also narrated the facts, which have been stated in the reply.  He has also got exhibited documents such as resolution dated 13.12.2014 (Ex. RW-1/1), agreement to sell dated 09.09.2012 executed between original allottees and the complainants (Ex. RW-1/2), application dated 06.01.2013 of the original allottee for transfer (Ex. RW-1/3), undertaking/indemnity bond given in favour of OP-1(Ex. RW-1/4), agreement of sale dated 03.06.2014 executed between complainants and Mr. Rameshwar Jaiswal (Ex. RW-1/5), application of the complainant dated 05.07.2014 for transfer in favour of Mr. Rameshwar Jaiswal (Ex. RW-1/6), undertaking/indemnity in favour of OP-1 given by Mr. Rameshwar Jaiswal and the complainants (Ex. RW-1/7) and (Ex. RW-1/8) respectively, payment made by Mr. Rameshwar Jaiswal to the complainants in the form of DD, issued by Bank of Maharashtra dated 17.07.2014 for Rs. 20,99,000/- (Ex. RW-1/9), media reports / newspapers showing agitations and protests of farmers (Ex. RW-1/10), order passed by the Hon’ble Supreme Court (Ex. RW-1/11) and (Ex. RW-1/12), orders passed by NGT (Ex. RW-1/13), (Ex. RW-1/14) and (Ex. RW-1/15) respectively.   

6.        We have heard the Ld. Counsel for the parties and have perused the material placed on record.  It has been argued on behalf of Amrapali Sapphire Developers Pvt. Ltd. (OP-1) that the complainants were not consumer as they were not the original allottee; they sold the flat for consideration of Rs. 60,00,000/-, which amounts to a commercial transaction; they were estopped from claiming any compensation on account of delay as they have already given undertaking/signed indemnity bond in favour of OP. 

            In support of his arguments, Ld. Counsel for OP have relied upon Anil Dutt vs. M/s. Business Pak Town Planners Ltd. (BPTP) 2013 SCC OnLine NCDRC 920, where it was held that the complaint was not maintainable as the intention of the complainant was to resale the said flats.  Those flats were not purchased for personal use of consumer.  Thus, they were not consumer under the Act.  In Laxmi Engineering Works vs. P.S.G. Industrial Institute (1995) 3 Supreme Court Cases 583, where it was laid down that where a person purchases goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit, he will not be a consumer within the meaning of Section 2(d)(i) of the Act.

            On the other hand, Ld. Counsel for the complainants have argued that the complainants remain as a consumer, though they sold the flat; principle of estoppel was not applicable to the complainants as the complainants were enforcing the agreement, which was executed between the original allottee and the complainants, which was assigned in their favour. 

Before proceeding, it was stated on behalf of the complainant that the complainants were not pressing their prayer (a) as the flat was already registered in favour of Mr. Rameshwar Jaiswal, who was the third buyer in line.  Counsel for the complainants argued that their only prayer was with regard to Rs. 2,28,000/- on account of delay in handing over the possession. 

            The first and foremost point that arises for consideration is as to whether the complainants were consumer.  For this, reference has to be made to Section 2(1)(d)(i) of the Act, where definition of “consumer” has been provided.  The same is reproduced hereunder:-

2(1)(d)  “Consumer” means any person who,-

1. 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
2. ..........

7.        A bare reading of Section 2(1)(d)(i) of the Act shows that consumer is a person, who has bought the goods for consideration paid or promised or partly paid and partly promised or under any system of deferred payment, it also includes any user of such goods other than the person who buys such goods for consideration when he makes use of such goods with the approval of such person, but it does not include a person who obtains such goods for resale or for any commercial purpose.  Thus, a person who obtains the goods for resale or for any commercial purpose is excluded from the definition of consumer. 

From the explanation attached to this section, commercial purpose has been explained as it does not include the use of goods made by a person exclusively for the purpose of earning his livelihood by means of self-employment.

            Thus, if the goods have been used for earning his livelihood by means of self-employment that will not be a commercial purpose.  Meaning thereby that a person can make use of the goods for earning his livelihood, which will not fall within the exclusionary part of the definition of consumer.  So, the definition of consumer excludes a person who has obtained the goods for resale or for any commercial purpose, but, if the goods are used for the purpose of earning his livelihood by means of self-employment, the same will not fall within the exclusionary part.

           

 

For the purpose of this complaint, the word resale, which has been used in the definition clause, has to be examined.  If it is noticed from the evidence produced on behalf of the parties that the flat was taken by the complainant for resale, then the complainant will not be a consumer within the definition of Section 2(1)(d)(i) of the Act.

                 To ascertain as to whether the complainant have taken the flat for resale, firstly his own testimony is to be examined.  He has stated in his affidavit that he purchased the flat in the project of Amrapali Sapphire, Sector-45, Noida, UP bearing Tower-F, Unit No. 1201 from the first owner of the flat Mr. Sakkun Tickoo and Mrs. Sarla Tickoo on 09.09.2012, for a sum of Rs. 13,50,000/-.  He paid the balance amount of Rs. 24,02592/- on 05.01.2013.  He moved an application for transfer on 06.01.2013.  The final payment against interest amounting to                 Rs. 3,27,761/- was paid by Mr. Sakkun Tickoo on 14.01.2013.  He has further deposed that possession of the said flat was given on 31.08.2013.

            Ruchika Pandey, co-complainant have also deposed the same facts.  During the course of proceedings, it was stated that the complainants have sold the flat to a third person viz.                                Mr. Rameshwar Jaiswal.  For this, a look has to be made to the testimony of Shri K.S. Yadav, AR of OP.  He has stated in his testimony that the complainants purchased the flat from the original allottees vide agreement to sell dated 09.09.2012, which is exhibited as RW1/2.  On moving the application by Mr. Sakkun Tickoo and Mrs. Sarla Tickoo, the said flat was transferred in the name of the complainants.  The said application is of dated 06.01.2013, which is exhibited as RW1/3.  He has also got exhibited undertaking/indemnity in favour of OP-1, which is exhibited as FW1/4.  He has further deposed that complainants sold the said flat to Mr. Rameshwar Jaiswal vide agreement to sell dated 03.06.2014, which is exhibited as RW1/5.  He has further deposed that complainants applied to OP-1 for transfer of the said flat in favour of   Mr. Rameshwar Jaiswal vide his application of dated 05.07.2014 and accordingly the said flat was transferred on 25.07.2015 in favour of     Mr. Rameshwar Jaiswal.  Both the complainants and present transferee have given undertaking/indemnity in favour of OP-1, which are exhibited as RW1/7 and RW1/8.

8.        It is an admitted case of both the parties that the complainants purchased the property from the original allottee Mr. Sakkun Tickoo and Mrs. Sarla Tickoo and sold the same to Shri Rameshwar Jaiswal for a sum of Rs. 60,00,000/-.  If agreement to sell executed between the complainants and Shri Rameshwar Jaiswal on 03.06.2014, which is exhibited as RW1/5, is perused, it is noticed that the complainants have agreed to sell the said flat for a consideration of Rs. 60,00,000/-.  Document Ex. RW1/6 is the application for transfer of flat in the name of Shri Rameshwar Jaiswal.  This application is of dated 05.07.2014 moved by the complainants.  It means that the complainants have entered into an agreement with Shri Rameshwar Jaiswal for a total consideration of Rs. 60,00,000/- and he moved the application for transfer in their name.  Document Ex. RW1/7, which is undertaking/indemnity executed by     Mr. Rameshwar Jaiswal show that they have paid the entire amount of Rs. 60,00,000/- to the complainants and have agreed to pay any penalty , duty, interest, taxes etc, which may be raised by OP.  Further, document Ex. RW1/8, which is a DD, complainant Shri Arun Pandey has put his signatures of having received of the outstanding payment.    Thus, from these documents, it comes out that the complainants have purchased the flat from the original allottee viz. Mr. Sakkun Tickoo and                Mrs. Sarla Tickoo and sold the same for a consideration of                       Rs. 60,00,000/- to Mr. Rameshwar Jaiswal.  When the complainants have sold the flat, they are not covered under the definition of consumer as the definition of consumer excludes a person who obtains such goods for resale.  Here, the complainants have purchased the flat from the original allottee Mr. Sakkun Tickoo and Mrs. Sarla Tickoo and later on he has sold the same to Mr. Rameshwar Jaiswal for a consideration of                       Rs. 60,00,000/-.  By selling the flat, he has ousted himself from the definition of consumer.  Therefore, the complainants are not consumer. 

9.        The judgments relied upon by Ld. Counsel for OP help them.  When the complainants are not consumer, there is no point in going to the other arguments advanced on behalf of both the parties.  However, it would not be out of place to mention that the complainants have got an undertaking from Mr. Rameshwar Jaiswal not to claim any compensation/damage for delayed possession of the flat.  However, they have not given any such undertaking to Mr. Sakkun Tickoo, the original allottee from whom they have purchased the said flat.  By not giving any undertaking to Mr. Sakkun Tickoo, the original allottee and getting an undertaking from Mr. Rameshwar Jaiswal, the complainants have not shown their bonafide towards Mr. Sakkun Tickoo, the original allottee as well as Mr. Rameshwar Jaiswal.  Thus, the complainants are not bonafide in their action.

10.      In view of the above, we are of the opinion that the complainants are not consumer as flat No. 1201, purchased from Mr. Sakkun Tickoo, the original allottee was sold for a consideration of Rs. 60,00,000/- to Mr. Rameshwar Jaiswal.  Therefore, their complaint deserves dismissal and the same is dismissed with cost of Rs. 10,000/-. 

Copy of the order be supplied to the parties as per rules.

File be consigned to Record Room.

 

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

Member                                                                                Member    

     

      (SUKHDEV SINGH)

             President