Delhi

StateCommission

CC/473/2014

RAMESH KUMAR ARORA & ANR. - Complainant(s)

Versus

BPTP LTD. & ANR. - Opp.Party(s)

23 Nov 2016

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments: 23.11.2016

Date of Decision: 05.12.2016

Complaint No. 473/2014

In the matter of:

1. Ramesh Kumar Arora

S/o Late Shri Amir Chand.

 

2. Smt. Krishna Devi Arora,

W/o Ramesh Kumar Arora.

 

3. Dr. Neelu Arora,

D/o Ramesh Kumar Arora.

 

All residents of :

 

            House No. E-186, Amar Colony,

            Lajpat Nagar-IV,

            New Delhi-110024.                                                              …........Complainants

 

VERSUS

1. BPTP Limited,

Registered Office

 

M-11, Middle Circle,

Connaught Circus,

New Delhi-110001.

(Through its Managing Director)

 

2. BPTP Limited,

Corporate Office

BPTP Crest, Plot  No.15,

Udyog Vihar, Phase-I,

Gurgaon-122015.

(Through its Authorised Signatory)

 

3. Shri Ashish Choudhary,

Prop. M/s. U. Choudhary Estate Agency (Regd.)

Authorised Sales Organizer of BPTP Ltd.,

Head Office : Shop 157-158, Sector-14 Market,

At Dividing Road Sector 14 & 15,

Faridabad, Haryana-121007.

                                                                                                            ….....Opp. Parties

                                       

CORAM

O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

 

 O.P. Gupta, Member (Judicial)

 

1. The case of the complainants is that they paid Rs.3,00,000/- and booked ground floor unit of plot of 300 sq. yds. at A & B Blocks of Sector-85, Faridabad for consideration of Rs.28.45 lacs with OP-1 & 2.  The booking was done through OP-3.  Vide notice dated 09.08.2009 OP raised revised demand of Rs.3,11,100/- payable by 24.08.2009.  The same was paid by the complainants.  They made payment to the extent of Rs.35% of BSP and 20%  of EDC/IDC and became eligible for allotment of unit.  Vide letter dated 31.12.2009 OPs stated that complainant’s name was not short listed for allotment in random draw and their names would be considered in second phase of allotment in future. The complainants applied for refund of Rs.10.16 lacs with interest @18% per annum.  The OP replied that in case refund is sought by customer, no interest is paid and commission and timely payment discount were also not returned.  The amount of commission given to the broker would be deducted.

 

2. OP informed that second group of allotment was confirmed in 4 to 5 months time. Complainants agreed to wait.  They received letter dated 09.07.2011 informing that second phase of allotment would take place on 30.08.2011 and their names would be considered only after they sign annexed consent form, otherwise they would be eligible for refund only.  Consent form was containing all illegal  and unilateral conditions which were suicidal in nature. They requested OP to follow original terms and conditions and provide revised drawings of flat with increased area duly approved by competent authority.  Email dated 30.08.2012 was sent  stating that it did not receive consent letter by 31.07.2011, name of complainants were not considered for allotment.  OP asked the complainants to seek refund, if interested, by surrendering membership and accepting huge deductions.  Since complainants were never interested in refund, they again requested OP to allot unit.

 

3. OP gave an advertisement in Times of India dated 19.01.2014 that it put on open sale a large of ‘ready to move’ Park Elite Floors at A-B, E-Blocks, in Sector-85.  Complainants sent notice on 31.01.2014 for stopping sale, pending allotment of complainants.  Hence, this complaint for directing OPs to allot ground floor unit on plot at the cost of booking made in May, 2009, direct the OPs to pay Rs.20,00,000/- as compensation for mental agony, pain, extortion, humiliation, blackmailing, time spent, expenditure, harassment and forcing them to live in rented accommodation for last more than five years. They have also prayed directions to OPs to return commission of Rs.1,27,800/- alongwith interest of 18%, direct OPs to pay cost of Rs.51,000/- as cost of litigation.

 

4. OP-1 & 2 filed WS raising preliminary objections  that complainants are not consumer within the definition provided under Consumer Protection Act.  The person who applied for allotment is only prospective investors and till allotment, he does not become a Consumer. Admittedly no unit was allotted to the complainants.  The complaint is barred by limitation. The claim is exaggerated. There is no deficiency of service.  No cause of action arose. On merits OPs stated that booking amount of Rs.3,00,000/- was adjusted on the request of complainants for previous booking having customer code 115601 in letter dated 25.01.2010.  The complainants did not quote any interest figure as claimed in the complaint. The complainants were never certain about their own decision whether to seek refund or wait for re-allotment.  

 

5. The complainants filed their rejoinder and evidence by affidavit.

 

6. At the stage of evidence for OPs, the complainants moved an application for  interim relief.  The OP pressed his objection that complainant is not a Consumer.

 

7. I have gone through the material on record and heard the arguments.  Counsel for the OP relied upon the decision of National  Commission in Revision Petition No. 3193/2015 titled as Yashwant Rai Puri Vs. Bhatinda Development Authority & Ors. decided on 01.08.2016. Para-5 of the judgement incorporates that admittedly no plot was allotted to the petitioner/complainant in draw of lots held by respondent. The legal question which arose was as to whether in the absence of allotment, the complainant could be said to be Consumer.  Decision of Hon’ble Supreme Court in Morgan Stanley Mutual Fund Vs. Kartick Das (1994) 4 SCC 225 holding that prospective investor does not fall under Consumer Protection Act was followed.   Similar view was taken by National Commission in Punjab Urban Planning and Development Authority Vs. Kishan Pal Chander I (2010) CPJ 99.  In FA-486/06 titled as DDA Vs. Kishan Pal decided on 27.09.2011 it was held that mere registration by a person in any scheme for allotment of plots or flats would not make such person a Consumer. Ultimately, it was concluded that since no allotment was made to the complainant he did not hire or avail service of OP.  Consequently he could not be said to be Consumer and the revision was dismissed.

 

8. Counsel for OP also relied upon decision of National Commission in Parmod Kumar Malik Vs. Haryana Urban Development Authority II (2013) CPJ 10 in para 11 of the judgement, decision of State Commission has been noticed holding that merely by applying for allotment of plot by depositing earnest money, the complainant cannot be termed as Consumer unless the plot is allotted to him.  The said findings have been endorsed at page-4 of the judgement where it was held that merely because the complainant had applied for plot does not give any right to him to be considered as Consumer.

 

9. Counsel for complainant sought time to go through the judgement cited by counsel for OP and then reply.  The request was turned down.  Thereafter he moved an application on 28.11.2016 for granting an opportunity for replying on the issue of  jurisdiction. After conclusion of the case, a party is left with no right to move any application as per decision of Hon’ble Supreme Court in AIR 1994 SC 993. 

 

10. Counsel for complainant tried to distinguish the decision of National Commission in Yashwant Rai Puri Vs. Bhatinda Development Authority (supra) on the ground that said case was of semi government body and  not private developer. I do not feel that it can make any difference.  The question still remains as to when a person booking, can become consumer.

 

11. Another contention of counsel for complainant was that in the case cited by counsel for OP, it has not come as to how much amount has been paid by complainant. In the instant case, complainant has made payment of 35% of price.  Again I feel that quantum of payment is immaterial.

 

12. As a result of above discussion, I hold the complainant is not a consumer. The complaint is dismissed.

 

13. Copy of this order be sent to all the parties free of cost.

 

14. File be consigned to  Record Room.

 

(O.P. Gupta)

Member (Judicial)

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