CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SHAKAR BHAWAN

CASE NO.CC/410/15

                                                                                                  Date of Institution:-12.08.2015

                                                                                                 Order Reserved on:- 20.04.2023

                                                                                                   Date of Decision:-12.05.2023

IN THE MATTER OF:

Sh. Satyender Shukla

S/o Late Sh. Lal Babu Shukla

R/o 51, Village Tenua,

District – Siwan – 841435 (Bihar)

Presently R/o. 1/232, Gopal Nagar,

Near Shiv Shiksha Sadan,

Sonipat – 131001 (Haryana)                                                  ....Complainant

VERSUS

1. Director/Responsible Official

     M/s Decent Colonizers Pvt. Ltd.

     101-112, Shokeen Plaza, Plot No. 3,                                    

          Pocket -7, Sector 12,

Dwarka, New Delhi-110075                                                

2. Mr. Avinash Singh Jawa

Director of M/s Decent Colonizers Pvt. Ltd.

R/o 60, Jawa Mission, Abchal Nagar,

New Pradhan Market, Neelothi Extn.,

Chander Vihar, New Delhi.                                            …..Opposite Parties

O R D E R

          Per Dr. Harshali Kaur, Member

1. The Complainant states that he was induced by OP-2 to purchase a plot in a project being developed by OP-1 in Kotputli (District Jaipur, Rajasthan) under the name and style of Omega City. Based on the assurances and representations of the O.P.s, the Complainant decided to purchase a plot of 120 sq. yards. He was further promised that the project would be completed in a time-bound manner. The Complainant paid a total consideration of Rs.3,12,000/- by signing the "Application form for Provisional Registration" for the plot on 21.05.2012 and filed the name of Sh. Amit Panwar as the second applicant.

2. The Complainant paid Rs.46,800/- by way of cheque at the time of signing the Application Form. The O.P. issued a receipt to the Complainant bearing Sr. No. 2179 towards the payment and issued a customer I.D. 556A. The Complainant further deposited Rs.1,31,040/- via cheque dated 15.07.2012 and was issued a receipt with Sr. No. 2769 towards the said payment by the O.P. He also alleges that he paid some amount in cash as per the demand raised; however, the O.P. avoided issuing receipts towards these cash payments on one pretext or another.

3. The O.P. also sent a letter wherein the O.P. assured a return @12% per annum on the consideration amount after two years and promised to hand over the booked plot within 24 months. The Complainant states that he visited the office of the O.P. to inquire about the project's development but was only given false assurances.

4. The Complainant approached the O.P. several times since the O.P. had neither executed the sale documents in favour of the Complainant nor paid interest at the market rate, i.e. 24% p.a., which had accrued upon the said sum from 15.07.2014. But the O.P. continued to give empty assurance regarding possession, which caused hardship and mental agony to the Complainant as he had already paid a substantial sum to the O.P. towards the plot. The Complainant thereafter issued a legal notice dated 03.05.2015 to the O.P. demanding his money back along with interest and compensation.

5. Aggrieved by the delay in possession of the plot, which had not been handed over to the Complainant till the date of filing of this complaint, the Complainant filed the present complaint alleging deficiency in service and unfair trade practice under section 12 of the Consumer Protection Act, 1986 and Complainant prayed for a refund of Rs.3,12,000/-/- along with interest @24% p.a. from the date of deposit till realization, along with Rs.1,00,000/- to complainant towards compensation for the mental agony and harassment.

6. Notice was issued to the O.P.s, who did not appear before this Forum despite adequate service. When the Complainant filed the proof of service qua OP-2 and OP-1, both OP-1 & 2 were proceeded ex-parte vide order dated 25.05.2016 and 13.07.2016, respectively. The Complainant filed his ex-parte affidavit of evidence and written arguments, and the case was fixed for Final arguments.

7. We have carefully heard the Complainant, who has appeared in person as O.P.s are ex-parte and considered the material on record. We have also perused the documents placed on record by the Complainant.

8. The facts of the case are that the Complainant booked a residential plot in the O.P. project of Omega City Kotputli (Jaipur) measuring 120 sq. yards at Rs.2,600/- sq. yards. He paid Rs.3,12,000/-  to the O.P.s as per the terms and conditions agreed upon between them and as demanded by the O.P. from time to time. He has also stated that the O.P. promised an assured return @12% p.a. on the consideration amount after two years through the letter, which he has annexed on page no.9 of his complaint. But despite payment of the entire amount, the possession of the plot was not handed over to him. The Complainant states that when he did not get possession of the plot, he asked for a refund of the deposited amount with interest. The O.P. did not address his grievance despite repeated requests and correspondence. He, therefore, filed the present complaint for non-delivery of possession of the booked plots on receipt of consideration/booking amount within a reasonable time, which amounts to deficiency in service and unfair trade practice.

9. The Complainant has placed on record the documents to corroborate his unrebutted and unconverted testimony letter dated 28.05.2012 acknowledging the receipt no.162277 dated 28.05.2012 for Rs.46,800/- towards registration of the residential plot in the O.P.s project of Omega City Kotputli (Jaipur) measuring 120 sq. yards at @ Rs.2,600/- per sq. yards. He has also placed on record the letter sent by the O.P. assuring a return in the form of a buy-back arrangement of 12% p.a. on investments in the Omega City project at Behror, Kotputli, Raj. He has also annexed a copy of the application form on pages no.10 to 15. On page no.16 is the receipt dated 28.05.2012 for Rs.46,800/-. Page no.17 is the receipt of the amount of Rs.1,31,040/- dated 15.07.2012 issued by the O.P. to the Complainant. The Complainant has also annexed the legal notice sent to the O.P. dated 03.05.2015 on page no. 18, along with postal receipts and tracking report. He has annexed the FIR registered qua the O.P.s on page no. 25.

10.  Though the allegations made by the Complainant have gone unchallenged, uncontested and unrebutted, a bare perusal of the complaint shows that the Complainant has annexed the letter on page no.9 of his complaint sent by the O.P. that he had booked his plot in question on Assured Return Basis. This very fact clarifies that the Complainant is an investor who paid money to the O.P.s for future gains and therefore does not fall within the definition of a 'Consumer' as defined in the Consumer Protection Act, 2019 under section 7 (i) (ii) as under:-

(7) "consumer" means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

11. The question of whether the investors are "Consumers" as defined under the Act or not is dealt with by the Hon'ble Apex court and the Hon'ble National Commission, in a catena of judgements, and has settled the law on this issue by holding concretely that the Investors in such schemes are not consumers. In this regard, we may refer to the following decisions of the Hon'ble Supreme Court and of the Hon'ble National Commission.

1. Morgan Stanley Mutual Fund vs Dr. Arvind Gupta (1994) 4 SCC 225, in which the Hon'ble Supreme Court held that a prospective investor is not Consumer to prefer a complaint under the Consumer Protection Act, 1986.
2. M/s Monstera Estate Pvt. Ltd vs Ardee Infrastructure Pvt. Ltd. IV (2010) CPJ Page 299 (N.C.)
3. Vijay Kumar vs M/s Vikson Finance and Investment Pvt. Ltd. & ANR. decided by Hon'ble NCDRC on 07.10.2015.

12. The case before us for adjudication of the present complaint is identical to the facts in the case of Jayantilal Trikambhai Brahambhatt vs Abhinav Gold International Marketing Pvt. Ltd. 2012 (4) CPR 37 (N.C.) decided by the Hon'ble National Consumer Dispute Redressal Commission on 19.09.2019, whereby the same question that we are facing as to whether the Complainant therein were consumers or not and whether their intent was to earn multiple/huge profits or to earn their livelihood. The Hon'ble National Commission relying upon the judgments referred to by us above, held that-

"Complainants and the persons who are seeking relief through them are not the consumers, and hence the complaint before them was not maintainable."

13. In light of the settled law mentioned above, we dismiss this complaint without cost but with the liberty to file the same in the competent Forum.

• Copy of the order is to be given dasti to the contesting parties.
• The file be consigned to the record room thereafter.