BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No.293 of 2014
Date of Institution: 26.5.2014
Date of Decision: 10.5.2016
Kabul Singh Son of S. Jaskaran Singh r/o V.Majitha, Tehsil and District Amritsar through his special attorney Jaimal Singh son of S.Jagtar Singh r/o E-6, Ranjit Avenue, Amritsar
Complainant
Versus
Amritsar Improvement Trust, Amritsar, Ranjit Avenue,Amritsar through its Chairman
Opposite Party
Complaint under section 12 & 13 of Consumer Protection Act, 1986
Present: For the Complainant : Sh.Pardeep Saini,Adv.
For the Opposite Party : Sh.Rajesh Bhatia,Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma,Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Kabul Singh through special attorney Jaimal Singh has brought the instant complaint under the Consumer Protection Act, 1986 on the allegations that the complainant was allotted one shop cum flat No. 42 having length 66’9” and breadth 16’6” total area 122.37 sq.yds situated at Ajnala Road Extension and Development Scheme, Sector 3, Ranjit Avenue, Amritsar by the opposite party vide agreement to sell dated 28.8.96 arrived at between the complainant and the opposite party. As such the complainant is the consumer falls within the definition of consumer as given in section 2(1)(d)(ii) of the Consumer Protection Act and is competent to invoke the jurisdiction of this Forum . The opposite party is a legal entity and it can sue and be sued in its name and its Chairman is the competent authority for looking into the affairs of the opposite party. As such opposite party is being sued through its Chairman. Moreover, the Chairman of the Trust had also entered into agreement to sell with the complainant on 28.8.96 and as such it has been arrayed as opposite party. The complainant was allotted shop cum flat No. 42 as stated above vide auction which was held on 17.1.96. In execution thereof an agreement dated 28.8.96 was executed between the parties, copy of the said agreement is enclosed herewith. It is worth mentioning that the complainant also deposited a sum of Rs. 70,000/- vide receipt No. 28038 dated 21.12.95 for participating in the bid, photocopy of the receipt is enclosed. The total sale consideration of the shop cum flat was Rs. 11,60,000/- and the complainant had deposited a sum of Rs. 2,90,000/- as first installment with opposite party alongwith Rs. 200/- towards other misc.expenses. It was further stipulated in the agreement to sell that rest of the sale consideration to the tune of Rs. 8,70,000/- shall be paid in installments to the tune of Rs. 2,05,320/- in the months of January and July on 23rd day. The first installment would be payable on 23.1.97 alongwith interst @ 12% p.a . In case of failure on the part of the complainant in payment of the installments, the complainant shall have to pay interest @ 18% p.a. The complainant paid /deposited 1/4th of the sale consideration towards the shop cum flat in dispute to the tune of Rs. 2,20,000/- alongwith Rs. 450/- towards misc.expenses vide receipt No. 28432 dated 17.1.1996 in all a sum of Rs. 2,20,450/- , photocopy of the receipt is annexed, apart from a sum of Rs. 2,90,000/- which was deposited by the complainant at the time of fall of the hammer. After the execution of the agreement to sell dated 28.8.96, complainant was delivered possession of the said shop cum flat No. 42 which was duly mentioned in the agreement to sell dated 28.8.96. Since 28.8.96 complainant has been in possession of the shop cum flat and thereafter complainant has been regularly approaching the authorities of the opposite party for receiving the balance amount of the installments. But the opposite party has been dilly dallying the matter on one pretext or the other. Later on it was communicated to the complainant that the matter in dispute is sub-judice before the higher authorities and as and when the same would be adjudicated upon, the balance amount of installments would be received from the complainant. However, the possession of the complainant of the shop cum flat is continuous, uninterrupted, peaceful and lawful. The complainant recently approached the authorities of the opposite party in the month of April 2014 for deposit of the balance amount of installments. But the authorities did not pay any heed to the genuine request of the complainant. Rather opposite party stated that the complainant can go to the court of law as the officials of the opposite party have shown their reluctance in the matter on the ground that it is now within the powers of the higher authorities to solve the matter . But till date nobody has clarified the position. The act and omission on the part of the opposite party is unfair trade practice as the complainant has been regularly approaching the officials of the opposite party and has been requesting them to get the amount of installments deposited, but to no effect. The complainant has prayed for grant of following reliefs in the instant complaint:-
(i) That the opposite party be directed to receive the entire balance amount of installments from the complainant as due till date as the complainant is ready and willing to deposit the same alongwith interest, if any;
(ii) That the opposite party be also directed to execute the sale deed of the shop cum flat No. 42 in favour of the complainant as per agreement to sell dated 28.8.96;
(iii) That the opposite party be directed to pay a sum of Rs. 50,000/- on account of mental pain, agony, harassment as well as inconvenience to the complainant as stated above ;
(iv) Any other relief to which the complainant is deemed entitled to be granted to him.
Hence, this complaint.
2. On notice, opposite party appeared and contested the complaint by filing written reply taking certain preliminary objections therein inter-alia that the complaint as framed is not legally maintainable. The property involved in the present case is commercial one and the transaction took place between the parties is also commercial . Therefore, the complainant does not fall within the definition of consumer in this case ; that the complainant has not approached this Forum with clean hands and is guilty of suppression of material facts from this Court ; that the complainant has no locus standi to file the present complaint against the replying opposite party ; that there is no lawful cause of action in favour of the complainant to file the present complaint . On merits, it is admitted that complainant had purchased the property bearing No. SCF 42, situated at Ajnala Road, Amritsar in an auction held by the opposite party on 17.1.1996 by giving a higher bid of Rs. 11,60,000/-. It is further admitted that allotment letter bearing No. AIT/SS/3644 dated 24.6.1996 was duly issued by Trust in favour of the complainant after receiving ¼ amount of the total sale consideration. An agreement to sell qua the SCF 42 was also executed in favour of the complainant on 28.8.96 by the opposite party. As per agreement dated 28.8.96 complainant was to make the payment of the remaining sale consideration in five installment of Rs. 2,05,320/- each after expiry of every six months. But the complainant did not deposit the installments with the opposite party as agreed. In this regard the complainant was called for personal hearing vide letter No. AIT-4546 dated 20.10.97 and thereafter a notice vide letter No. AIT/SS/5599 dated 21.11.1997 , even then the complainant did not deposit the remaining sale consideration amount with the opposite party. As such the opposite party vide resolution No. 247 dated 26.6.1998 forfeited the said SCF and the amount deposited by the complainant in its favour as per rules and regulations. The complainant was duly informed about the said resolution and forfeiting of SCT and the amount vide letter dated 20.8.1998 bearing No. AIT/SS/2681. Remaining facts narrated in the complaint were also specifically denied and a prayer for dismissal of the complaint with cost was made.
3. In order to prove his case Sh.Amandeep Saini,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1, copy of sale deed Ex.C-2, copy of receipt Ex.C-3, cokpy of letter dated 2.9.1996 Ex.C-4, copy of letter dated 24.6.96 Ex.C-5, copy of receipt dated 21.12.95 Ex.C-6, copy of receipt dated 17.1.96 Ex.C-7, copy of agreement to sell Ex.C-8 and C-9 and closed the evidence on behalf of the complainant.
4. To rebut the aforesaid evidence Sh. Rajesh Bhatia, Adv.counsel for the opposite party tendered into evidence affidavit of Sh.Sandeep Rishi,Chairman Ex.OP1, copy of letter No. 2644 dated 24.6.1996 Ex.OP2, copy of agreement of sale Ex.OP3 (3 pages), copy of affidavit (3 Pages) Ex.OP4, copy of letter dated 2.9.1996 Ex.OP5, copy of letter dated 20.10.1997 Ex.OP6, copy of letter dated 21.11.1997 Ex.OP7, copy of resolution Ex.OP8 and closed the evidence on behalf of the opposite party.
5. We have heard the ld.counsel for both the parties and have carefully gone through the record on the file.
6. It has vehemently been contended on behalf of the complainant that it is an admitted fact that the complainant purchased one SCF bearing No. 42 situated at Ajnala Road Extension and Development Scheme, Ranjit Avenue,Amritsar from the opposite party vide agreement to sell dated 28.8.96, copy whereof is Ex.C-2. It has been further contended that the complainant has been ready and willing to make payment of the remaining sale consideration/installments for an amount of Rs. 11,60,000/- and for that purpose complainant had already deposited a sum of Rs. 2,90,000/- as first installment with opposite party and he has also agreed to pay remaining sale consideration to the tune of Rs. 8,70,000/- in six installments to the tune of Rs. 2,05,320/- each alongwith interest. But, however, opposite party without any rhyme or reason refused to get the remaining installments deposited on one pretext or the other, although in the meanwhile the possession of the SCF 42 remained continuously with the complainant. However, it is the case of the opposite party that vide resolution No. 247 dated 26.6.1998, copy whereof is Ex.OP8, the opposite party had forfeited SCF in dispute alongwith the amount deposited by the complainant in their favour. But,however, the said action of the opposite party is void and has no legal force. The complainant is entitled to the SCF in dispute on payment of remaining sale consideration. It is contended that the complainant is entitled to the compensation claimed vide instant complaint and the complaint may be allowed accordingly.
7. But,however, from the appreciation of the facts and circumstances of the case, it becomes amply clear that the complainant is not proved to be a consumer as defined in section 2(i)(d)(ii) of the Consumer Protection Act. The agreement on the basis of which, the present complaint has been filed, is a commercial transaction. It was a shop cum flat which, on the very face of it falls within the term of a commercial transaction. Even, in the complaint itself, the complainant has nowhere averred that the SCF in dispute has been purchased by him for earning his livelihood . A person purchasing a booth and a flat cannot be said to have purchased the same exclusively for the purpose of earning his livelihood by way of self employment. The complainant has miserably failed to prove that he is a consumer within the meaning of the Act . We find support in this regard from the case Amritsar Improvement Trust Vs. Ashok Sharma in First Appeal No. 546 of 2014 decided on 4.1.2016 by our own Hon’ble State Consumer Disputes Redressal Commission, Punjab, wherein on similar set of facts, it was held that a purchaser of two shops does not fall within the purview of consumer under the Consumer Protection Act. Since the complainant has miserably failed to prove that he is a consumer within the definition of section 2(i)(d)(ii) of the Act. Therefore, complaint filed by him was not maintainable before the District Forum and the same was liable to be dismissed on that score alone.
8. The complainant has repeatedly admitted that transaction through which he has purchased the plot was an open auction. It has by now become a well settled proposition of law that if a dispute arises in respect of a plot purchased through an open auction, such a dispute is not covered under the provisions of Consumer Protection Act, 1986 . We draw support from the case titled as Ashok Tayal & Anr. Vs.Delhi Development Authority & Ors. II(1995) CPJ 3 where the Hon'ble National Consumer Disputes Redressal Commission, New Delhi have held that:-
“The plea of the opposite parties is that the transaction in dispute is an outright sale of immovable property at an auction and it is not therefore, a transaction involving goods or services as defined in Section 2(1)(i) of the Consumer Protection Act,1986 read with Section 2(7) of the Sale of Goods Act,1930 and Section 2(1)(o) of the Consumer Protection Act.”
Their lordships have further held in para No. 3 that :-
“We are of the opinion that as the complainants have purchased the plot in dispute in an auction sale where there is no element of hiring of service and this transaction will not fall under the Consumer Protection Act. Therefore, this complaint cannot be entertained by this Commission. It is an outright sale of immovable property in a public auction and therefore, the complaint is not maintainable. In this respect, reference can be made to the decision of this Commission given in Allied(Garments) Exports Industries Pvt.Ltd. Vs.Delhi Development Authority, 1(1991) CPR 580.Hence, no relief can be granted to the complainants.”
9. Consequently, the complaint stands dismissed , without prejudice to the right of the complainant to seek his remedy before the appropriate court of law/appropriate Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 10.05.2016
/R/ ( S.S.Panesar )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
Member Member
