JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

          The opposite party is developing a residential colony namely ‘Park Land’ in Sector 85 of Faridabad.  Mr. Rohit Kapoor, being the complainant in CC/567/2015 and Mamta Kapoor being the complainant in CC/568/2015 acquired the bookings of one plot each in the aforesaid project from the original allottee of the said plots.   As per Clause 22.1 of the Plot Buyers Agreement, the possession of the plots was to be delivered within 24 months from the sanction of the service plan of the entire colony.  The sale consideration for the plot, subject matter of CC/568/2015 filed by Smt. Mamta Kapoor was agreed Rs.39,03,850/- though she claims to have already paid a sum of Rs.66,24,381/- before filing the complaint.  Alleging failure of the opposite party to deliver possession of the plot booked by her, she has approached this Commission seeking delivery of the possession of the said plot. She has also sought refund of the excess amount alleged to have been charged from her along with interest and compensation quantified at Rs.125 lacs and compensation on account of escalation of the cost of construction quantified at Rs.68.00 lacs.

2.      In CC No. 567 of 2015 filed by Mr. Rohit Kapoor, it is alleged that the original basis sale price of Rs.19,66,800/- but he had also paid Rs.41,88,163/- before filing of the complaint.  He is also seeking possession of the plot booked by him, along with refund of the excess amount alleged to have been charged from him with compensation etc., quantified at Rs.84.00 lacs and compensation on account of escalation in the cost of construction, quantified at Rs.41.00 lacs.

3.      The complaint has been resisted by the opposite party on several grounds including that the complainants are not consumer as defined in the Consumer Protection Act.

4.      It is an admitted position that initially two plots were booked jointly by Shri Rohit Kapoor and his wife Smt. Mamta Kapoor with the opposite party in the same project.  The allotment continued to be joint till just before filing of these consumer complaints when two relinquishment deeds one each by both of them were executed as a result of which Mrs. Mamta Kapoor became the sole allottee of the plot No.A-29 whereas Mr. Rohit Kapoor became the sole allottee of A-12/20.  These relinquishment deeds were executed without any prior approval from the opposite party.

5.      In the consumer complaints, no explanation has been given either by Shri Rohit Kapoor or by his wife Smt. Mamta Kapoor, as to why they had booked two plots instead of one plot which normally is required for the needs of a family.  Despite the opposite party having taken a preliminary objection that they were not consumers, having booked two plots in their joint names, no explanation either in the rejoinder or in the affidavit by way of evidence was given as to why they had booked two residential plots with the opposite party. 

6.      At the stage of final hearing of these complaints, the opposite party came to know that in addition to booking two plots with it, the complainants had also booked a residential flat with Jaypee Associates Ltd. in Greater Noida.  The complainants were therefore, directed to file an affidavit disclosing therein the properties owned by them at the time of institution of complaint as well as additional properties, if any, acquired or booked by them after filing of the complaint.  Vide subsequent order  dated 23.10.2017, the complainants were given an opportunity to file an additional affidavit explaining their position with respect to the booking made with Jaypee Associates Ltd.  It transpires from the affidavits filed by the complainants that their family comprises the complainant namely Rohit Kapoor and his wife Smt. Mamta Kapoor besides two daughters and dependent parents.  However, in the said affidavits, there is absolutely no explanation as to why they chose to book two plots in the same colony with the same builder.  In the absence of any valid explanation, the obvious inference would be that atleast one plot was booked for speculative purposes of making gain by selling the same at a later date.  It is true that mere booking of more than one plot / flats may not justify the inference of acquisition for speculative purposes provided a convincing explanation is given for the said acquisition.  However, in the absence of satisfactory explanation, when a close-knit family comprising husband and wife, depending parents and two minor children at the relevant time chooses to book two plots with the same builder in the same colony, the irresistible inference would be that either one or both the plots were booked for speculative purposes.  The said inference finds corroboration from the act of the complainants in executing relinquishment deeds, just before filing these complaints.  This obviously was done in an attempt to justify filing of two separate complaints, one in the name of the husband and the other in the name of the wife.

7.      In addition to booking two plots with the opposite party, the complainant also booked a residential flat with Jaypee Prakash Associates in Greater Noida, which is far away from Faridabad.  The aforesaid booking was not disclosed by either of them in the consumer complaints.  The consumer complaint being CC/1299 of 2016 has already been instituted by them against Jaypee Associates Ltd., in respect of the flat booked with the aforesaid builder and is still pending.  I have considered the additional affidavits filed by the complainants but in the said affidavits I do not find any satisfactory and convincing explanation for booking the said flat with Jaypee Associates Ltd. at a place far away from the Faridabad.  If the intention of the complainants was to settle in Faridabad, they would not have booked a flat in Greater Noida.  More importantly, the flat with Jaypee Associates Ltd. was booked soon after the complainants had acquired the booking of the residential plots in Sector 85 of Faridabad.  Booking of flat soon after booking two plots in Faridabad is also an indicator that the complainants were intending only to make profits by speculative activities such as selling the plots / flats at a later date, in order to derive financial gains from the said sale. The complainants therefore, cannot be said to be consumers, as defined in Section 2(1)(d) of the Consumer Protection Act.

8.      Since the complainants cannot be said to be consumers in terms of Section 2(1)(d) of the Consumer Protection Act, this Commission would not have jurisdiction to entertain the consumer complaint.  The complaints are accordingly dismissed, with liberty to the complainants to avail such remedy other than filing a consumer complaint as may be open to them in law.