CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SHAKAR BHAWAN

CASE NO. CC/502/16

                                                                                                                           Date of Institution:-03.11.2016

                                                                                                                             Date of Decision:-10.02.2023

IN THE MATTER OF:

Mrs. Babita Yadav

W/o Shri Ram Avtar,

R/o: SMQ-77/3, Safed Sagar (VSV),

Air Force Communication Centre, Sohna Road,

Gurgaon, Haryana.

VERSUS

1. M/s Decent Colonizers Pvt. Ltd. (Office Closed)

            Office at: 101-112, Shokeen Plaza, Plot No. 3,                                                 

            Pocket -7, Sector 12,

            Dwarka, New Delhi-110075                                                

2. Mr. Avinash Singh Jawa (Managing Director)

M/s Decent Colonizers Pvt. Ltd.

60, Jawa Mansion, Abchal, New Pradhan Market,

Neelothi Extension, Chander Vihar,

New Delhi.

                                                                                                                      …..Opposite Parties

O R D E R

1. Briefly stated, the facts of the complaint are that the complainant sought to purchase a plot in a residential colony being developed by the OPs in NH-8 Kotputli (District Jaipur, Rajasthan) under the name and style of “Omega City”. Based on the charming advertisement, assurances and representations of the OPs, the Complainant decided to purchase a residential plot of 120 sq. yards on the assurance that the possession would be given in 6 months. The complainant was allotted Plot No 138 in Block E of the said project on assured return basis
   @24% per annum and @ 2200/- per sq. yard. The complainant paid Rs.39,600/- vide Cheque No.005738 dated 12.01.2012 as a booking amount. OP-1 issued receipt No.947, dated 16.01.2012 towards the same.

2. The complainant states in her complaint that the OP’s booked the said plot on assured return basis and also assured him that he would get minimum appreciation of 24% per annum on the amount paid by him. The complainant agreed to take an instalment plan for the payment after the OPs told the complainant that they would soon execute the Buyers Agreement.

3. The complainant also paid Rs.1,10,880/- by way of cash at the time of signing of the Application Form. OP-1 issued receipt to the complainant bearing Sr. No.1334, dated 10.03.2012 towards the said payment. In this manner the OPs received total amount of Rs.1,50,480/- from the complainant.

4. The complainant states that he visited the office of the OPs to inquire about the project's development but was only given false assurances after which the complainant lodged several FIR’s against the OP’s. Thereafter, OP-2 gave an undertaking dated 22.04.2014 of refund of the market value of the amount paid by the complainant in case of default on her part. But neither was the possession was handed over nor the amount refunded as promised by the OPs.

5. When the complainant visited the OPs project site, they were shocked to find no development in the project. It is alleged by the complainant that on inquiry, they found that the project in which they had booked the plot did not have mandatory and necessary permission from the concerned authority.

6. The Complainant approached the OPs several times. But the OPs continued to give empty assurances regarding possession, which caused hardship and mental agony to the complainant as he had already paid a substantial sum to the OPs towards the plots.
7. Aggrieved by the delay in possession of the plots, 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 Consumer Protection Act, 1986. The Complainant has prayed for a refund of Rs.1,50,480/- along with interest @24% p.a. from the date of deposit till realization, along with Rs.2,00,000/- to complainant towards compensation for the mental agony and harassment.

8. Notice was issued to the OPs, OP-1 did not appear before this Forum despite adequate service through publication, towards which the complainant filed an affidavit and the newspapers in which the notice was reflected dated 03.11.2016. Hence OP-1 was proceeded ex-parte vide order dated 10.03.2017 when they did not appear despite several calls. OP-2 filed their reply on cost of Rs.2,000/- but did not appear thereafter to file their affidavit in evidence. The Complainant filed her ex-parte affidavit of evidence wherein he has reiterated her averments as given in her Complaint. The complainant also filed written arguments, and the case was fixed for Final arguments.

9. We have carefully considered the material on record and thoroughly perused the documents placed on record by the complainant after hearing the Ld. Counsel for the complainant who appeared on date fixed for oral arguments.

10. The unrebutted facts of the case are that the complainant booked a residential plot in the OP project of Omega City Kotputli (Jaipur) measuring 120 sq. yards at @ Rs.2,200/- sq. yards. She paid total amount of Rs.1,50,480/-  to the OPs  as per the terms and conditions agreed upon between them and as demanded by the OPs from time to time. But despite payment, 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 OPs also did not address his grievance despite repeated requests and correspondence. He, therefore, filed the present complaint for non-delivery of possession of the booked plot on receipt of consideration within a reasonable time.

11. OP-1 is ex-parte and OP-2 did not appear after filing reply hence OP-2 is also proceeded ex-parte today.

12. Though the allegations made by the complainant have gone unchallenged, uncontested and unrebutted, a bare perusal of the complaint shows that the complainant has mentioned in her complaint as well as her affidavit filed as her evidence that he had booked her plot in question on Assured Return Basis. This very fact clarifies that the complainant is an investor who paid money to the OPs 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.

13. 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 (NC)
3. Vijay Kumar vs M/s Vikson Finance and Investment Pvt. Ltd. & ANR. decided by Hon'ble NCDRC on 07.10.2015.

14. 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 (NC) 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."

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

Copy of the order be given as dasti.

                        File be consigned to record room thereafter.