BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No.294 of 2014

Date of Institution: 26.5.2014

   Date of Decision: 10.5.2016

Nirmal Singh S/o S. Gurdial  Singh r/o Mohkampura, Jaura Phatak, Amritsar through his general attorney Gurpreet Singh S/o S. Gurdial Singh R/o village Gagarwala, Majitha Road, 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.       Nirmal Singh through his general  attorney Gurpreet 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. 34 having length 16’.6”x 66’ total area 121.00 sq.yds situated at Truck Stand Area Development Scheme by the opposite party vide agreement to sell dated 29.8.1989 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 29.8.1989 and as such it has been arrayed as opposite party. The complainant was allotted shop cum flat No. 34 as stated above vide auction which was held on 15.6.1989. In execution thereof an agreement dated 29.8.1989 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. 2,20,450/- vide receipt for  participating in the bid, photocopy of the receipt is enclosed. The total sale consideration of the shop cum flat was Rs. 4,00,500/- and the complainant had deposited a sum of Rs. 1,00,125/- 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. 3,00,375/- alongwith interest @ 12% p.a shall be paid in five six monthly installment to the tune of Rs. 70,888.50P/- in the months of February and August on 8th day. The first installment would be payable on 8.2.1990 . 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 of the sale consideration  towards the shop cum flat in dispute to the tune of Rs. 25,000/- alongwith Rs. 2,20,450/- towards misc. in all a sum of Rs. 2,45,450/- , photocopy of the receipt is annexed, apart from  a sum of Rs. 1,00,125/- which was deposited by the complainant at the time of fall of the hammer. After the execution of the agreement to sell dated 29.8.1989, complainant was delivered possession of the said shop cum flat No. 34 which was duly mentioned in the agreement to sell dated 11.9.1989. Since 11.9.1989 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. 34 in favour of the complainant as per agreement to sell dated 29.8.1989;

(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 34 in Truck Stand Area Development Scheme in one auction which was held on 15.6.1989. In this regard one agreement to sell dated 29.8.1989 was duly executed in between the complainant and the opposite party. The complainant has deposited a sum of Rs. 1,00,125/- alongwith Rs.200/- as misc.expenses. The total sale consideration was Rs. 4,00,500/-. As per terms and conditions of the agreement the remaining amount is to be paid in installments of Rs. 70,888/- which is to be paid half yearly  and the trust has to charge an interest of 12% p.a on the remaining amount of Rs. 3,00,375/-. It is also a condition that if the complainant fails to pay the installments, then 18% penal interest is to be charged. The possession of the abovesaid SCF was delivered to the complainant. It is also worthwhile to mention here that the complainant failed to make the payment of installments, as agreed by him  and he became defaulter  and at present a sum of Rs,. 10,13,710/- is outstanding against the complainant. 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 agreement to sell Ex.C-3 & Ex.C-4, copy of provisional receipt Ex.C-5, copy of receipt Ex.C-6 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 petition filed by Nirmal Singh Ex.OP2 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. 34 situated at Truck Stand Area Development Scheme from the opposite party vide agreement to sell dated 29.8.1989 copy whereof is Ex.C-2. It has been further contended that the complainant has been ready and willing to make payment of the  sale consideration/installments for an amount of Rs. 4,00,500/-  and for that purpose complainant had already deposited a sum of Rs. 1,00,125/- as first installment  with opposite party and he has also agreed to pay remaining sale consideration to the tune of Rs. 3,00,375/- in five six monthly installments  to the tune of Rs. 70,888.50 .The possession of abovesaid SCF was delivered to the complainant on 11.9.1989 .But, however, opposite party without any rhyme or reason refused to get the remaining installments deposited  on one pretext or the other.

7.       However, it is the case of the opposite party that as per terms and conditions of the agreement the remaining amount is to be paid in installments of Rs. 70,888/- which is to be paid half yearly and the trust has to charge an interest @ 12% p.a. on the remaining amount of Rs. 3,00,375/- and it is also a condition that if the complainant fails to pay the installments, then 18% penal interest is to be charged. The possession of the abovesaid SCF was delivered to the complainant.  But the complainant failed to make the payment of installments as agreed by him and he became defaulter  and at present a sum of Rs.10,13,710/- is outstanding against the complainant.  Opposite party has given a notice to the complainant to vacate the SCF as he has failed to make the payment. It is contended that the complaint as framed is not maintainable. The transaction is commercial in nature & the complainant is not proved to be a consumer of the opposite party and a prayer for dismissal of the complaint with cost was made.

8.       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 ambit 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.

9.       The complainant has repeatedly admitted that transaction through which he has purchased the SCF was  an open auction. It has by now become a well settled proposition of law that if a dispute arises in respect of a property 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.”

10.     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