Delhi

StateCommission

CC/535/2015

M/S ARVIND CONSTRUCTION CO. PVT. LTD. - Complainant(s)

Versus

M/S ARDEE INFRASTRUCTURE PVT. LTD. - Opp.Party(s)

26 Nov 2015

ORDER

IN THE STATE COMMISSION

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

 

Date of Argument: 26.11.2015

Date of Decision: 08.12.2015

 

Complaint Case No. 535/2015

 

 

        In the Matter of:

                M/s Arvind Construction Co. Pvt. Ltd.

        L-43, Connaught Circus,

        New Delhi-110 001

        (Through its Authorized Representative)

        Mr. Paresh Jain

……Complainant     Versus   M/s Ardee Infrastructure Pvt. Ltd. Dr. Gopal Das Bhavan 28, Barakhamba Road, New Delhi-110 001                                                  …….Opposite Party

CORAM

Justice Veena Birbal, President

Salma Noor, Member

O.P. Gupta, Member (Judicial)

1.   Whether reporters of local newspaper be allowed to see the   judgment? 

2.   To be referred to the reporter or not?

 

O.P. Gupta, Member (Judicial)

1.             The present complaint has been filed on the allegations that OP agreed to sell two plots old no. D-284 corresponding to new Plot No. D-05/8 and Old No. D-297 corresponding to New No. D-05/9 in “Ardee City” in Gurgaon. Agreement to sell dated 18.07.1997 were executed for consideration of Rs. 19,14,900/- for each plot. The complainant paid full money by cheques which were acknowledged by OP by issuing receipts. The complainant sent various letter dated 17.04.2014, 30.09.2014, 16.12.2014, 14.02.2015 and 09.04.2015 requesting OP to execute conveyance deed. Complainant bought two stamp papers and handed over the same to the OP on 21.04.2014. The complainant sent two legal notices dated 09.05.2015 and 06.06.2015 which were not replied. One Sh. Alok Prakash, claiming to be Advocate of OP called the complainant from mobile no. 9868618652 and informed that OP is unable to execute conveyance deed owing to an Injunction Order by High Court of Delhi. The complainant met Sh. Alok Prakash on 10.07.2015  who reiterated the telephonic talk. OP sent e-mail dated 18.07.2015 in response to notice dated 09.05.2015 and expressed inability to execute conveyance deed on account of stay order dated 29.05.2014 from High Court of Delhi. The complainant notified to the OP through notice dated 06.06.2015 that the court order was about unsold plots whereas the plots in question were sold during life time of Sh. Ashok Verma. Copy of the order of High Court shows that Sh. Ashok Verma expired on 01.06.2008 and that he is survived by his wife and two daughters. The OP has indulged in unfair trade practice amounting to malafide act of deficiency in service. Hence, this complaint for directing OP to execute conveyance deed and get the same registered in respect of the two plots mentioned therein.

2.             We have heard the counsel for the complainant at the admission stage. First of all admittedly the complainant booked two plots which show that the complainant is simply an investor and not consumer. In taking this view we are supported by decision of National Commission in consumer case No. 208/12 titled as Saavi Gupta and Anrs. Vs. Omaxe Azorim Developers Pvt. Ltd. and Ors. decided on 01.10.2012 and in another consumer complaint no. 143/13 titled as Ved Kumari and Anr. Vs. Omaxe Buildwel Pvt. Ltd. and Anr. decided on 05.03.2014. Similar view was taken in consumer complaint no. 270/13 titled as Smt. Madhu Sehgal and Anr. Vs. Omaxe Buildwel Home Pvt. Ltd. decided on 20.03.2014.

3.             Secondly, the complainant is a company which cannot reside in the building to be constructed on the plots. Obviously, the purpose of purchase of plots is to construct a building and sell the same with a view to earn profit. Thus, the act would become commercial and would come out of definition of consumer.

4.             Thirdly, plots is not covered by Consumer Protection Act as per decision of National Commission in revision petition no. 39/70/13 titled as Arvind Pundik Dhamne Vs. Raghubir Raman Rao Joshi decided on 20.05.2014.

5.             Lastly, the complainant is seeking specific performance of agreement to sell dated 18.07.1997. The complaint has been filed in 2015 i.e. after 18 years. The same is barred by limitation as complaint under Consumer Protection Act has to be filed within two years as per section 24A of Consumer Protection Act. The counsel for the complainant submitted that limitation for specific performance is three years under article 54 of the Limitation Act and that too from the date of refusal by the defendant. We are unable to persuade ourselves with the arguments. Neither it is civil suit nor it is for specific performance nor limitation is governed by Limitation Act. The limitation for consumer complaint is governed by section 24A Consumer Protection Act. Here, date of refusal is immaterial.

                In view of above decision, we find that the complaint is not maintainable. The same is dismissed in limini.

                One copy of the order be sent to the complainant free of costs as per rules.

                File be consigned to record room.  

(Justice Veena Birbal)

President

 

(O.P. Gupta)

Member (Judicial)

 

 

 

Rakeeba