Karnataka

Belgaum

CC/536/2015

Director. M.M Mohta - Complainant(s)

Versus

Ganesh Revankar - Opp.Party(s)

29 Nov 2016

ORDER

                

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.536/2015

                     Date of filing: 19/10/2015

                                                                  Date of disposal:29/11/2016

P R E S E N T :-

 

 

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

 

COMPLAINANT   -

M/s. Mohta Capital Pvt. Ltd., Represented by its Director, Shri. M.M. Mohta, Age: 76 Years, Occ: Business, R/o: 10th Cross, Bhagya Nagar, Belagavi.                     (Rep.by Sri.Ajay Sunalkar, Adv.)

- V/S -

 

OPPOSITE PARTY  -

1.

Mr. Ganesh Revankar, Age: Major, Occ: Business, Promoter of Bheemasamudra Land Developers and Builders, R/o: 203 “On Nivas” 1st Stage, OPP. to KSSIDC, 2nd Stage, Double Road, Rani Channamman Nagar, Belagavi – 590006                                       and               C/o; VFS Management Solutions Pvt. Ltd., No.194/1, Ground Floor, Between 10th to 11th Cross, Sampige Road, Malleshwaram, Bengaluru - 560003.                                       (Ex-parte)

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) to refund the advance amount and registration fees alongwith interest which totally comes Rs.16,12,150/- to the complainant and compensation of Rs.3,00,000/- towards loss sustained & any other reliefs etc.,

 

2.      The facts of the case in brief are that;

 

           It is contended that, the opponent is running business of land developing under the name and style as “Bheemasamudra land Developers & Builders”. As per the offer of the opponent, the complainant has invested an amount of Rs.5,75,000/- and complainant has booked site measuring 50X80 situated at Devanhalli International Airport, Bangalore. The complainant has paid registration Fee of Rs.2,150/- to the opponent and opponent has acknowledges the registration fee and advance amount as mentioned above.

 

          It is contended that, the opponent has promised to give the Plot @ Rs.430/- per Sq. fts, but as agreed opponent has failed to complete the project and execute the sale deed in favour of complainant and the Firm Amarasakti Finvest and Credit Pvt. Ltd., was merged into M/s. Mohta Capital Pvt. Ltd., i.e. complainant.

 

          It is further contended that, the complainant has made several correspondence regarding allotment of Plott and execution of sale deed but, opponent has not replied and not refund the amount received by the complainant. the complainant is ready to get execute the sale deed but opponent is not responding properly even after many letters or correspondences. But, opponent is not replied, the attitude of the opponent it is clear that, opponent want to dupe the amount of the complainant. the complainant has paid the advance amount on 09.07.2005 by way of D.D. bearing No.159719 issued by S.B.M, Belagavi, the opponent has utilized the said amount and till today has not respond properly. The opponent has not care to answer to the complainant; the complainant has got issued legal notice through his counsel on 08.07.2015 calling upon the opponent to execute the sale deed of proposed plot, but the said notice returned as “Not Claimed”. Hence, complainant is constrained to file this complaint against the Op to refund the advance amount and registration fees alongwith interest which totally comes Rs.16,12,150/- to the complainant and compensation of Rs.3,00,000/- towards loss sustained & any other reliefs etc., Hence this complaint.

 

3.      After hearing and pursuing the documents produced by the complainant this Hon’ble Forum issued notice to opponent though notice was returned as “Not Claimed”. The notice is deemed to be served upon the opponent. Hence, the opponent placed as Ex-parte. 

 

4.      The complainant has filed his Affidavit alongwith list of 08 documents in support of his case, the said documents which has been marked for shake of our convenience the said documents are marked as Ex.P-1 to Ex.P-8. After Perused the affidavit alongwith documents and the Complainant Counsel argued the matter.

 

5.      In order to file complaint U/s 12 of the C.P. Act, the complainant must be a Consumer and the OP is must be a Service provider as defined U/s 12 of the C.P. Act.

 

Now, on the basis of these facts, the following points are arise for our consideration:

 

1. Whether the Complaint is Consumer? Within the meaning of the C.P. Act, so as to maintain the complaint against the OPs for alleged deficiency of service?

 

 

2. What order?

 

6.      Our findings to the above points are as under;

 

1. In the Negative.

 

2. As per final Order.

 

 

REASONS:-

 

7.      Point No.1: After perusing the evidence of complainant and argument, it is evident and admitted fact that, the complainant has applied for site measuring 50X80 situated at Devanhalli International Airport, Bangalore and booked in respect of that, complainant has invested an amount of Rs.5,75,000/- and paid registration Fee of Rs.2,150/- to the OP.

 

          It is further case of the complainant that, the opponent has promised to give the Plot @ Rs.430/- per Sq. fts, but he has failed to complete the project and execute the sale deed in favour of complainant as agreed, further the case of the complaint is that, the said Firm Amarasakti Finvest and Credit Pvt. Ltd., was merged into M/s. Mohta Capital Pvt. Ltd., i.e. complainant.

 

          It is further case of the complainant that, he has made several correspondence regarding allotment of Plot and execution of sale deed. The OP neither replied nor refund the amount received from the complainant and also the complainant is ready to get execute the sale deed as per terms and conditions of the agreement. So, the attitudes of the OPs are amount to deficiency of service on the part of OPs. In order to substantiate the complainant case and alleged contention, there is no single document to show that, Complainant is a Consumer and the OP is the service provider but, the complainant has failed to establish the case as alleged in the complaint. In our consider view that, to consider this complainant is Consumer, first of all the complainant is not a Consumer for the reason that, there is no a Single pleading in respect of livelihood or self-employment to show that, complaint is the consumer and further it is admitted fact that, complainant has applied for site, for what purpose he has been applied, the same has been not mentioned in his complaint and he has failed to convince and prove before this Forum, to hold that, complainant is a consumer. In our consider view, he has failed to prove. Further the complainant Counsel has relied a decision of Hon’ble National Commission in Revision Petition No.1443 of 1997 – decided on 15.05.2002, the relied decision of the complainant pertaining to and in respect of interest only not for deficiency. Hence, with due respect the said decision is not applicable and not helpful to the complainant. Then, there is no any question arises in respect of deficiency of service as service provider has not given service to complainant and even then, when the averments made in complaint does not disclose any relationship of “Consumer” and provider of service between the parties. This complaint is not maintainable and the same is to be dismissed. For that, proposition of law, we would like to refer a decision of the Hon’ble National Commission reported in II (2012) C.P.R. 72 (NC) has held that, only a “Consumer” can file case and a Consumer as defined under provisions of Consumer Protection Act 1986, can maintain a Consumer Complaint.

Further, also we would like to refer another Hon’ble National Commission reported in I (2014) CPR 567 (NC) it has been held that, complaint can be dismissed on sole ground that, the complainant does not fall within the definition of Consumer is not entitled to maintain complaint against the OP before the Consumer Forum. In the instant case, looking to the pleadings and oral argument shows that, the complainant is doing business in the name and style of the Firm Amarasakti Finvest and Credit Pvt. Ltd., the said firm was merged into M/s. Mohta Capital Pvt. Ltd., and doing business to generate profit not for his livelihood or self-employment and the firm is not a individual. The firm itself revels that, the said business doing to generate profit and OP is doing real estate business and building development in order to generate profit and not for earning his livelihood and the complainant has not reviled this fact deliberately and intentionally just in order to get benefit and jurisdiction. Therefore, the dispute arise between the parties could not be a Consumer disputes.

 

 Therefore, looking from any angle the complainant can’t claim compensation from Ops and there is no deficiency on the part of the Op. Therefore, in our considered opinion that, the complainant is not consumer, and then there is no question arise deficiency of service on the part of the OP. therefore, as discussed above the present complaint is not maintainable before this Forum and the remedy of the complainant lives else were and the complainant can seek his remedy before the competent authority and accordingly, we answer Point No.1 in the negative.

 

8.      Point No.2:- After careful consideration and our findings on the above points, we proceed to pass the following;

 

O R D E R

 

For the reason discuss above, the complaint filed by the complainant U/s 12 of the C.P. Act – 1986 is here by dismissed.

 

No order as to costs. 

 

 

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this  29^th day of November, 2016).

 

 

Sri. A.G.Maldar,     President.

Smt. J.S. Kajagar,    Lady Member.