Delhi

StateCommission

CC/7/2016

DHEERAJ SINGH - Complainant(s)

Versus

JINDAL REALTY PVT. LTD. - Opp.Party(s)

RAKESH BHARDWAJ

25 Aug 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :  25.08.2017

Date of Decision :  12.09.2017

 

Complaint No. 07/2016

 

 

 

IN THE MATTER OF:

 

Dheeraj Singh,

House No.278-B,

Village Jetheri,

Sonepat.                                                                                             ........Complainant

 

VERSUS

 

Jindal Realty (P) Ltd.,

3^rd Floor, M-11, Connaught Place,

New Delhi.                                                                                          …….…Opp. Party

 

CORAM

 

SH. O. P. GUPTA, MEMBER (JUDICIAL)

SH. ANIL SRIVASTAVA, MEMBER

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

 

Present :  Sh. S.S. Chauhan, Counsel for the Complainant.

                  Sh. Rajesh Goel, Counsel for the Opposite Party.

 

 

PER  :  SH. ANIL SRIVASTAVA (MEMBER)

 

          The whole controversy in this complaint centers around the question “whether the complainant is a consumer?”

          Facts of the case, necessary for the disposal of the complaint, are these.

          One Sh. Rajender Prasad Sharma, had booked in the month of September 2012, a Villa bearing member No.C-69, Sonepat Global City, Sonepat Haryana, for a total consideration of Rs.78,51,487/- and for this purpose, he had  paid on different dates, an amount of Rs.19,52,536/- to the Jindal Realty (P) Ltd. hereinafter referred to as opposite party. Agreement was thereafter executed on 06.09.2012 between Sh. Rajender Prasad and the opposite party, agreeing to deliver the possession of the Villa within a period of three years with a grace period of 180 days.

          But in the meanwhile Sh. Rajender Prasad transferred the booking made by him to Sh. Dheeraj Singh, for short complainant.  The amount paid by him also stood transferred.  The OP also confirmed the transfer of the booking.

          However, the complainant found no construction on the site.  Besides the  additional demand of Rs.10,17,429/- with interest of Rs.26,564/- made by the opposite party shocked the complainant.  Since there was no progress in the construction of the Villa and the opposite party raised illegal demand for money, which the complainant felt was highly improper, he made a request for refund which request, despite making several sincere efforts, did not yield any results.

          Having been frustrated by the indifferent attitude of the opposite party, this complaint has been filed in this Commission under Section 17 of the Consumer Protection Act 1986, praying for the relief as under :-

1. Direct the opposite party to refund the amount of Rs.19,52,536/- alongwith 18% interest from the date of deposit till the date of actual payment.
2. Direct the opposite party to pay to the complainant an amount of Rs.2,00,000/- towards mental agony.
3. Direct the opposite party to pay to the complainant an amount of Rs.55,000/- towards cost of litigation.

          Opposite party was noticed and in response thereto written statements have been filed stating that the complaint is vexatious, false, frivolous and complainant has not approached Commission with clean hands  inasmuch as he has concealed and suppressed many important and material facts having a far reaching implication in the adjudication of the complaint.  The opposite parties  have further submitted that the relationship between them and the complainant does not survive, the agreement executed on 06.09.2012 having been terminated.  The complainant had voluntarily accepted the termination of the agreement and he has also not claimed any relief against the said termination. Thirdly, the complainant is an investor in which case he is estopped from raising a consumer dispute.  Fourthly, the complainant has not made the payment as required, leading to the delay in construction. Further the opposite party has stated that the delay in the construction of the project is owing to the fact that the Department of Town and Country Planning unilaterally changed the sector plan of Sector 35, Sonepat without proper intimation or notice to them, resulting in the delay in the construction and completion of the project.  On this account the delay is for reasons beyond their control and on which they   had no control.

          Finally the OPs have also taken objection regarding pecuniary jurisdiction of this Commission to hear and dispose of this complaint.

          The complainant has also filed his rejoinder and evidence by affidavit  denying the averments made in the written statement and reiterating his version and allegations as contained in the complaint.

          The opposite party during the pendency of the case had also filed an application under Section 26 of the Consumer Protection Act 1986 read with order 7 Rule 11 of the CPC, praying for rejection/dismissal of the complaint since the complainant is not a consumer.  According to the OP the complainant is an investor in real estate and involved in commercial transaction for speculating business gain and profit, the material fact which the complainant has allegedly concealed and intentionally and deliberately suppressed. The OP has further submitted that the factum about the complainant being an investor stands proved as in addition to the purchase of one Villa C-69, subject matter of the complaint, he had also entered into an agreement on 04.12.2012 for purchase of another property in his own name in the same project, namely, Sonepat Global City (previously Jindal Global City) from open market, bearing number, F-29, admeasuring 239 sq. yds. from one Sh. D.P. Garg for a tentative price of Rs.23,96,263/- which was duly assigned/transferred in his (complainant) favour.

          The OP has further submitted that the Hon’ble NCDRC has consistently held the view that even when a consumer has booked more than one residential unit, it amounts to investment/commercial purpose and has thus prayed for the dismissal of the complaint as the complainant having purchased more than one unit in the same project is an investor, prohibited under the provisions of Section 2(1)(d) of the Consumer Protection Act from raising a consumer dispute.  He has to approach Civil Court for the redressal of his grievance. 

          The complainant in his reply to the application filed by the opposite party under Section 26, has denied the charges that he had suppressed the material fact.  He further denies that he is an investor as alleged by the OP.  He has further stated that the allegation of commercial transaction are baseless.  He has strongly urged that the offer of  possession of the second property (Plot No.F-29) has nothng to do with present dispute.  He has finally concluded that in the recent past the Hon’ble NCDRC  has held that mere purchase of more than one flat does not make the buyer as investor.  However, he has neither placed before us any cogent or tangible evidence regarding  his denial to the averments made by the OP that he is an investor, he having purchased more than one flat, nor has placed before us ruling of the Hon’ble NCDRC, as averred.

          The matter was listed before us for final hearing on 25.08.2017 when counsel from both sides appeared and advanced their arguments. We have perused the records as available.

          The ld. Counsel for the opposite party vehemently argued based on his application filed under Section 26, for the dismissal of the complaint on the ground that the complainant is no longer a consumer once he has purchased more than one flat without explaining the circumstances in this behalf and if he is not a consumer, he is stopped from raising a  consumer dispute as prohibited under Section 2(1)(d) of the Consumer Protection Act. The said provision of law excludes the transaction meant for commercial purpose.

          Section 2(1(d) posits as under:

(d) “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

 

          On a plan reading of the provision it is clear that once a transaction is commercial it is outside the scope of the Consumer Protection Act. This leads to another question to answer whether the complainant in the given case is a consumer or an investor.

 

          The ld. Counsel for the complainant has argued that he is consumer but without placing before us evidence or ruling of the Hon’ble NCDRC or Hon’ble Apex Court. The arguments of the complainant have left no impression upon us. It is apparent that the complainant  is an investor and he is not consumer.  This view stands fortified by various authorities indicated below.

 

          This Commission in case titled, Chilkuri Adarsh Vs. ESS ESS VEE Construction, III (2012) CPJ 315, has held, as under:-

 

“Arguments of the learned counsel have been considered. However, we are of the view that the complaint as presented cannot be maintained before a consumer fora like ours as the agreement was for the construction of two showrooms, which obviously relate to commercial purpose and the complainant, therefore, will not come within the definition of a consumer as per Section 2(1)(d) of the Consumer Protection Act, 1986. This has been the consistent view of this Commission. It has held that even when a consumer has booked more than one unit of residential premises, it amounts to booking of such premises for investment/commercial purpose. This Commission in the case of Jag Mohan Chhabra & Anr. V. DLF Universal Ltd. [IV (2007) CPJ 199 (NC)] in a somewhat similar case had held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed of the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Honble Supreme Court as Civil Appeal No.6030-5031 of 2008 filed before the Supreme Court stands dismissed vide the Apex Courts order dated 29.09.2008.”

 

This Hon’ble NCDRC in Consumer Case Nos. 307 to 309 of 2012, titled M/s. Moran Plantation Pvt. Ltd. & Ors. Vs. M/s. Ambience Private Ltd., decided on 02.09.2013, took the similar view, wherein it was held:-

 

“In the facts of the present case, we maintain the same view, and while dismissing the complaints, as not maintainable, reserve the rights of the complainants to approach the appropriate Civil Court to seek their remedy, if so advised. They may take advantage of the ruling of the Supreme Court in the case of Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583 to seek exclusion of the time spent in prosecuting these complaints before this Commission.”

 

          The complainant is not a ‘consumer’. We cannot arrogate to ourselves the power with which we are not armed with “[Consequently, both the complaints are here dismissed. No order as to costs]

 

          On the other hand, the complainant has argued that he is a consumer.  He has denied that he is investor.  Mere fact that he has purchased more than one flat is no ground to treat him an investor.  No ruling has been placed before us.  But we have examined the case in  its totality.

 

          The Hon’ble NCDRC in the matter of Rajesh Malhotra Vs. Arora Developers – II [2016] CPJ 125 (NC) – has held that purchase of two Villas not investor if that is for needs. But the facts of that case are not apposite to the facts of this case as in that case the justification for owning of two flats was personal needs but in the given case no justification or explanation has been furnished, leading to a conclusion that he is an investor. 

 

          For all these reasons and discussion done, we are of the considered opinion that the complainant in the facts and circumstances of the case is investor and thus we allow the application of the OP and having done so we dismiss the complaint with no orders as to cost.

 

          We order accordingly.

 

          Copy of this order be sent to both the parties free of cost as required statutorily.

 

          File be consigned to Record Room.

 

(ANIL SRIVASTAVA)                                           (O.P. GUPTA)                                     MEMBER                                         MEMBER (JUDICIAL)                                         

                               

 

245.