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Advocate T Shushad for the Complainants
Advocate A P J P Dubey for the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 31st December 2013
This complaint is filed by the consumers against Country Club (I) Ltd. for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainants are husband and wife. They are resident of Saharanpur, Uttar Pradesh. They have relied upon the advertisement placed by the Opponent at the Seminar in which Opponent agreed to provide plot admeasuring 2000 sq.ft at Kolad, District Raigad. Complainants have invested Rs.1,80,000/- through credit card. Thereafter the membership was allotted to the complainants. But the Opponent has not complied with the promises which were given in the advertisement. On 15/6/2009 Opponent demanded Rs.20,000/- against the expenses for registration and development charges of the said plot. Said amount was also parted with by the complainants by issuing cheque. But the Opponent has not delivered possession of the plot. Evenafter paying Rs.2,00,000/- Opponent has not provided any services. Opponent has also not transferred the document of the said plot. Hence, complainant has filed this complaint for refund of Rs.2,00,000/- along with interest @ 18% p.a. They have also prayed for compensation of Rs.1,00,000/- and cost of litigation.
[2] Opponent resisted the claim by filing written version in which the contents of complaint are denied. It is specifically denied that there is deficiency in service. It is further denied that they have published advertisement as regards allotment of plot. It is denied by the Opponent that payment of expenses for registration and development were called from the complainant. It is further contended that the complainants are not consumers and this Forum has no jurisdiction to entertain the complaint. Opponent has prayed for dismissal of the complaint.
[3] Considering the voluminous documents which are produced before the Forum, pleadings of both parties, affidavits, hearing the argument of both counsel, written argument and considering the legal position, following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether this Forum has jurisdiction to entertain the complaint filed by the complainants ? | In the negative |
2 | What order ? | Complaint is dismissed. |
Reasons
As to the Point Nos. 1 to 2-
[4] It reveals from the voluminous documents as well as pleadings in the present complaint that complainants have asked refund of money which was deposited for the registration of the plot. It reveals from the agreement between the parties that the said plot was agreed to be allotted as complementary. Hence, the amount which has been paid by the complainant cannot be termed as consideration of the said plot. It is specifically averred in the terms and conditions dated 14/03/2009 that as the said plot was given on complimentary basis to the member, the member does not have any right to demand on the said plot by way of civil, criminal or in any nature. It further reveals from the agreement dated 14/03/2009 that the complainants have agreed to purchase membership of the Opponent irrevocably. Amount of Rs.1,80,000/- was paid as price of the said agreement. The present complaint is only under the impression that the amount which was paid to the Opponent was regarding the consideration of the plot. In these circumstances, it cannot be said that the complainants are consumers of the Opponent, as the land or plot is not included in the definition of goods. If the complainants are interested in refund of that amount, they have to approach to Civil Court, as Consumer Forum has no jurisdiction to adjudicate the dispute as regards land. It is the case of the Opponent that there is no question of deficiency in service for non allotment of plot as the Opponent has not received any consideration as regards the transaction of plot. The plot was assured complimentary i.e. free of cost and if the plot is not given to the complainant, it cannot be said that there is deficiency in service. Even though it is assumed that there is a transaction of sale and purchase of plot between the parties, that does not fall within the jurisdiction of this Forum as the land is not included as goods and the purchaser of land cannot be said as consumer under the Consumer Protection Act, 1986. In that context, the following rulings are helpful to adjudicate the dispute between the parties-
1] “Dinesh Chandra V/S Vijay Kumar Laws (NCD)”
reported in 2003-10-105/CPJ-2004-2-468 NCDRC
2] “M.P. Kalavathi V/S Church of South India Trust
Asso Laws (NCD- 2000-6-113 NCDRC
3] “Anil Kumar Shah V/S Madan Jana Laws (NCD)
1998-2-64/CPJ, 1998-2-372 NCDRC
4] “Mohan Co. Pvt. Ltd. V/S Santosh Yadav Laws (NCD)
2011-11-65/CPJ-2012-1-335 NCDRC
5] AIR 1987 SC 2328
It reveals from the observations made in the above quoted judgments that, as the dispute between parties is relating to sale and purchase transaction of the land, i.e. immovable property and the remedy for the complainant is to file suit for specific performance of contract or for recovery of the amount in the Civil Court. It has been observed in the above Ruling that,
“The first and foremost question requiring determination by this Commission is whether the dispute in question fell within the purview of ‘consumer dispute’ and whether the respondent-complainant could be termed as ‘consumer’ for the purpose of the Consumer Protection Act, 1986. The answer is emphatic No.” It has also observed that “the land can not be termed as ‘goods’. There is no question of service while executing agreement for sale. Hence, the relation between the parties is not as ‘consumer’ and ‘service provider’ and this Forum has no jurisdiction to entertain the present complaint”.
In the light of the above observations, it is crystal clear that the present complaint does not fall under the purview of jurisdiction of Consumer Forum, the relation between parties is not as ‘consumer’ and ‘service provider’. Hence, this Forum held that the complaint deserves to be dismissed.
Hence, Forum has answered the points accordingly and pass following order-
:- ORDER :-
1. Complaint is dismissed.
2. As per peculiar circumstances there is no order as to costs.
3. Both parties are directed to collect the sets which are
provided for the Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 31/12/2013
