Delhi

South Delhi

CC/1043/2007

MAP AUTO LTD - Complainant(s)

Versus

DELHI DEVELOPMENT AUTHORITY - Opp.Party(s)

19 Mar 2015

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-II

UDYOG SADAN, C-22 & 23, QUTUB INSTITUTIONAL AREA

(BEHIND QUTUB HOTEL) : NEW DELHI – 110016.

 

                                Case No. 1044/07

 

M/s Map Auto Ltd.,

Through its Managing Director

Shri Yashpal Gupta,

Resident of 53, Triveni Apartments,

A-6, Paschim Vihar,

New Delhi – 110063.                                       - Complainant

 

Vs

 

Delhi Development Authority,

Vikas Sadan, Near INA,

New Delhi – 110023.                                      - Opposite Party

 

                                                                                                                                          Date of Institution: 21.09.2007

                                                  Date of decision: 19.03.2015

O R D E R

 

         

    The case of the complaint is that Shop No. 35 (F.F.) C.S.C., Paschim Vihar, Block-A-4, Near S.B. Mills CGHS, New Delhi was allotted to him by the DDA-OP who issued Allotment-cum-Demand Letter bearing File No. F. 51(54)2000/CE/2823 dated 15.5.2000 for a total cost of Rs. 7,59,565/- against an area of 49.48 Sq. mtrs and that the complainant paid the entire consideration amount and also got the Conveyance Deed executed upon payment of 8% of Rs. 7,52,000/- for an area of 49.48 Sq. mtrs.  By alleging that the complainant had purchased the shop for the purpose of earning his livelihood, the

                                      Case No. 1044/07

 

complainant has pleaded that later on it was transpired that the area of the shop was short by 7.90 sq. mtrs approx., and the complainant asked the OP to refund the excess amount charged along with interest; that after great pursuasions the complainant received refund of Rs. 1,20,065/- by means of cheque dated 19.2.2004 vide Letter No. F.51(55)2000/CE/775 dated 05.3.2004 calculated towards short measurement only without paying any interest, which amounts to gross negligence, deficiency in service and unfair trade practice on the part of the OP.  Hence the complainant has prayed for refund of Rs. 80,520/- towards interest @ 18% per annum on the amount of Rs. 1,20,065/- w.e.f 13.06.2000 to  05.3.2004 (three years eight months and twenty three days), Rs. 9605/- as being 8% of the amount of Rs. 1,20,065 paid in excess for executing Conveyance Deed, Rs. 1225/- towards maintenance charges @ 1% of the cost paid in excess and Rs. 10,000/- towards compensation for special and general damages and Rs. 5,500/- towards litigation charges.

    In its written statement, the OP has stated that complainant had given highest bid in respect of Shop in question through tender and it was an outright sale of immovable commercial property through tender and hence the complaint is not maintainable.  It is pleaded that the complainant is a commercial

Case No. 1044/07

 

 business organization and is a limited company and hence does not come within the purview of the Consumer Protection Act.  It is inter-alia stated that the complainant vide letter dated 30.10.2002 complained that the actual area of the shop in question was 41.58 sq. mtrs instead of 49.48 sq. mtrs and he also requested for refund of difference excess amount.  It is stated that the case was put up before the competent authority where the request of the complainant was examined and acceded to and accordingly an excess  amount of Rs. 1,20,065/- towards the less area was refunded vide cheque dated 19.2.2004, which was sent to the complainant vide letter dated 05.3.2004. It is stated that the complainant had applied for shop on “as is where is basis” and after seeing the same and he took the possession slip without any protest of any nature and hence OP cannot be held to have committed any wrong.  It is submitted that interest is not payable as per DDA policy.  So far as refund of stamp duty is concerned, it is stated that the same had been paid to Govt. of Delhi and not to the OP.  However, it is stated that 1% amount on account of maintenance charges on the refunded amount which comes to Rs. 1201/- can only be released after submission of 3^rd/4^th copy of the paid challan.  Hence, it is prayed that the complaint be dismissed.

Case No. 1044/07

 

    In the rejoinder, complainant has reiterated the averments made in the complaint.

    Affidavit of Sh. Yashpal Gupta, Managing Director of the Complainant Company has been filed in evidence while affidavit of Sh. Yashpal Garg, Director (CL) of the OP has been filed in evidence.

    Written arguments have been filed on behalf of both the parties.

    We have heard the counsel for OP.  However, none has appeared to advance arguments on behalf of the complainant. We have also gone through the file very carefully.

    According to the affidavits of the parties, the OP had offered ready-built shops/office spaces for sale through tender and the complainant had given the highest bid in respect of shop in question.  Therefore, the shop in question had been allotted to the complainant by inviting tenders by the OP.  Ld. Counsel for the OP has contended that as held in DDA Vs. Paschim Vihar Resident Cooperative Urban Thrift and Credit Society  Ltd. – RP No. 1040 of 2006 decided by the Hon’ble National Commission on 9^th March, 2010, a complaint being related to sale at tender is not maintainable.  In the said judgment, reliance has been placed  on  the  Supreme  Court  Judgment  in  “UT   Chandigarh

Case No. 1044/07

 

 Administration & Anr. Vs Amarjeet Singh & Ors (2009) 4 SCC 660 and it is held that in a case of auction by inviting tenders, the complaint filed by the allottee is not maintainable before the Consumer Fora.  No contra judgment has been cited on behalf of complainant.  Therefore, we hold that this Consumer Forum has no jurisdiction to entertain the complaint.

    Even otherwise, the shop in question had been allotted to the complainant for commercial purpose and not for the purpose of earning livelihood.  We come to the conclusion by taking judicial notice of the fact that the complainant has filed CC No. 1043/07 – M/s MAP Auto Ltd. Vs DDA in respect of Shop No. 36 (FF) C.S.C., Paschim Vihar, Block-A-4, Near S.B. Mills CGHS, New Delhi.  Therefore, the complainant cannot be presumed to have purchased two shops for earning livelihood. Therefore, the transaction in question being commercial in nature, the complaint is not maintainable.

    It is an admitted case of the parties that the shop in question had been put on sale on “as is where is basis”.  It is not the case of complainant that he had not seen the shop in question before applying for its allotment to him. Therefore, the complainant now cannot plead that the OP committed deficiency in service or is guilty of unfair trade practice.

Case No. 1044/07

 

    In view of the above discussion, we dismiss the complaint with no order as to costs.  Copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

 

 

 

 

Announced on 19.3.15.