Delhi

StateCommission

CC/234/2016

HARI CHAND SHRIDHAR - Complainant(s)

Versus

M/S BPTP LTD. - Opp.Party(s)

14 Sep 2017

ORDER

N THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

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

Date of Arguments :14.09.2017

Date of Decision :18.9.2017

Complaint No.234/2016

IN THE MATTER OF:

 

Shri Hari Chand Shridhar,

S/o. Late P.R. Shridhar,

R/o. House No.B-28,

First Floor, Shardapuri,

Ramesh Nagar, New Delhi-110015.ouse no.HouseHouskjfjklfjkldsjfkldfhdhgjhjdhgfhhrhhjjrhdkghkasfgAKJFGDKbjkdskdfkekfekffdlflf;jfjffjfkp;’;’ds;’ds;dsljfhfdjl;l;k;dsfjkfdjifdsdsjdfklfjjjko43dsjlkjjkljlkjjljlkl;klk;lk;lkwr3r34tr5   

 

 

dtgtrthrhytfghnfnhrfghdsvdhgtjtgjmhk.k;sdfv68estr6uj  ..meedwwewedftgfy                                                            ……Complainant

                                                                        Versus

 

M/s. BPTP Limited,

Through its CMD/MD,

M-11,Middle Circle,

Connaught Place,

New Delhi-110001.                                                                                     …..Opposite Party

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE 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:           Complainant present in  person.

Ms. Mandakini Sharma and Shri Sharad Goel, counsel for the opposite  party.

PER  : SHRI ANIL SRIVASTAVA, MEMBER

          Short question for adjudication in this complaint filed order Section 17 of the Consumer Protection Act, 1986, for short  Act, is whether the opposite party has been deficient in rendering service to the complainant in not handing over possession of the flat within the time as agreed to and, if so, whether this Commission can issue any direction to the OP when the complainant having booked four flats  is apparently an investor and not a consumer, in which case not entitled to raise a consumer dispute.

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

          One Shri Hari Chand Shridhar, resident of New Delhi, for short complainant, has filed this complaint before this commission, against M/s. BPTP, hereinafter referred to as OP, alleging unfair trade practice on the part of the OP in not handing over possession of the flat unit no. PB 59, First Floor, Parklands Pride, within the time as agreed to, causing harassment, mental agony and hardship both financial and mental. The complainant had booked the flat on 22.04.2011 after paying the booking amount of Rs.3,00,000/-. Further payment was made to the OP by the complainant as per the demand letter received from time to time.

          On 27.12.2012 the complainant and the OP entered into an agreement. Clause 5 of the said agreement regarding possession of the flat, a vital document for adjudication of the complaint, is relevant and is reproduced here:

Clause 5.1          : Subject to Clause 13 herein or any other circumstances not anticipated and beyond the control of the seller/ confirming party or any restraints/ restrictions from any courts/ authorities but subject to the purchaser(s) having complied with all the  terms and conditions of this agreement and not being in default under any of the provisions of this agreement including but not limited to timely payment of total sale  consideration and other charges and having complied with all provisions, formalities, documents, etc., as prescribed  by the seller/ confirming party, the seller/ confirming party proposes to offer the handing over the physical possession of the floor to the purchaser(s)  within a period of thirty months from the date of execution of the Floor Buyer’s Agreement. The purchaser(s) agrees and understands that the seller confirming party shall be entitled to a grace period of (180 ) one hundred and eight days, after the expiry of thirty  months, for filing and pursuing the grant of an occupation certificate  from the concerned authority with respect to the building consisting of the three independent residential floors including the floor. The seller/confirming party shall give a notice of possession to the purchaser(s) where in the purchaser(s) will be granted t

30 days period to complete the formalities and payment of amount demanded. The purchaser(s) on completing the payment of the amount demanded shall become eligible for execution of the conveyance deed and taking over the possession of the floor from the seller. In the event the purchaser(s) fails to make the complete payment of the amount demanded or fails to complete all the documentation and necessary  formalities as informed vide notice of possession within 30 days of the date of such communication, the purchaser(s) shall be deemed to be custodian of the floor from the date indicated in the notice of possession (deemed possession) and the said floor shall remain at the risks and costs of the purchaser(s) thereafter.

Clause 5.3 : Subject to the condition  contained above, if the seller/confirming fails to offer the possession and the said floor to the purchaser(s) within the stipulated period  it shall be liable to pay to the purchaser (s) the compensation calculated at the rate of Rs.10/- per sq.ft of the Built Up area (“Delay compensation”) for every month of delay until the actual date fixed by the seller/confirming to hand over the possession of the said floor to the purchaser(s). The purchaser(s) shall not be entitled to any other compensation for direct or indirect losses, interest etc. for delay in handing over the possession by the seller.

 

          Having regard to the terms of the agreement, the agreement having been executed on 27.12.2012 and possession of the flat having been agreed to be handed over within thirty months, the construction  work had to be completed by June, 2015 to enable the complainant to take over the possession.

          The complainant in  his anxiety to know about the progress of the project, visited the site in February, 2015 but felt utterly  disappointed because the construction in the project by then had not even commenced. The complainant approached the OP after a few more visits to site, finding no progress in the construction, and pressed for the compensation for the delay done. No response was forth-coming. Legal notice was also sent but of no avail.

          Faced with this situation this complaint has been filed praying for the relief as under:

(a)     Direct the respondents to pay an amount of Rs.49,30,457/- (Rs. Forty nine lakhs thirty thousand and four hundred fifty seven only)along with interest @18% per annum till the payment made by the respondents.

(b)     Direct the respondents to pay an amount of Rs.49,30,457/- towards notice charges and litigation expenses to the complainants. Pass any other or further order or relief which this Hon’ble Forum may deem fir and proper under the facts and circumstances may also be passed in favour of the complainants and against the respondents.

 

          OPs were noticed and the written statements were filed, stating that the complaint is misconceived. It is not maintainable. They have denied that the delay in the construction is willful, rather they have pleaded that the  delay occurred for reasons beyond their control.

          The OPs alongwith the written statement, have also filed two applications, one, for referring the matter before the arbitration in pursuance of the Clause 33 of the agreement, and second, for dismissal of the complaint under Section 26 of the Act, as the complainant is not a consumer, rather he is an investor. 

          During the course of the arguments the ld. Counsel for the OP very fairly prayed for and was allowed to withdraw her first application regarding referring the matter to the arbitration, keeping in view the judgement of the Hon’ble NCDRC passed on 13.07.2017 in the burch matter of Aftab Singh Vs.Emaar  MGF Land Limited & Anr. And other connected matters, holding,

 

“An Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumers Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.”

         

In the second application prayer  is for the  dismissal of the complaint since the complainant, having purchased or having done transaction in four flats, is not a consumer. He would be treated in that case as investor in which case he would not be entitled to raise this consumer dispute. In para 3 of the application it has been averred that the complainant has invested at least in four units in different projects of the OP, the fact which has not been controverted by the complainant in his arguments. Details of those units are as under:

1. “PB-59,  First Floor, Parkland Pride, (the subject matter of the this complaint;
2. H-102,  Park Avenue;
3. M-G003 in the project SPAC10; and
4. P-13-09, Park Elite Floor

          These booking according to the OP has been done by the complainant for earning profit, in which case, having regard to the provisions of Section 2(1)(d) of the act, the complainant cannot be allowed to raise consumer dispute.

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) of the act defining the  terms consumer, 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 or for earning profit or for the purpose of investment, 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.

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 Hon’ble NCDRC in the matter of DLF Limited vs. Abdul Azim – II(2015) CPJ344(NC) – held:

“Booking in two different projects by complainant is investment. Purpose cannot be residential. It is for commercial gain through investment. The complainant cannot be treated as consumer.”

 

          In another case he Hon’ble NCDRC in the matter of Manhar Damecha vs. Ravasa Corporation Ltd. III (2016)  CPJ 318 (NC) – it has been held

“Booking of 4-5 plots is investment and for commercial purpose. Houses were not purchased exclusively for purpose of livelihood by means of self employment. If NRIs like complainant are allowed to save court fees, very purpose of ordinary consumer or as defined  by act  shall stand defeated. Complaint not maintainable.

 

          In yet another case, the Hon’ble NCDRC in the matter of Pramod Kumar Arora (D…) vs.DLF Homes Panchkula Pvt. Ltd. II (2016) CPJ 626 (NC) has held:

“Booking of five plots and one villa are for commercial purpose. Complainants are NRI and permanent US citizens. They have not explained how they need five or six houses for themselves. No where in the complaint they have mentioned that they have intention to return to India. Complainants are investors. Their case does not come within ambit of explanation appended to Section 2(1)(d)(ii) complaint is not maintainable:

 

          Booking of more than one flat amounts to investment, unless the complainant is able to establish his needs for the purpose of living. The Hon’ble NCDRC in the matter of Ved Kumari vs. Omaxe Buildhome Pvt. Ltd.II (2014) CPJ 146 (NC) has held that

“Booking of more than  one flat amounts to for commercial purpose. Flats booked are for investment and the contention that these are for taking care of his family in future cannot accepted. Complainants are investors and not consumers. Complaints are not maintainable.”

 

          This leads us to an inevitable and inescapable conclusion that the complainant is an investor and not consumer, moreso when the complainant has not been able to satisfy us that the four units purchased by him, are for his personal needs or the needs of his family.

          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 at our level. 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 view that the complainant in the facts and circumstances of the case is an investor and thus not entitled to raise a consumer dispute and accordingly we allow the application of the OP and having done so we dismiss the complaint with no orders as to cost.

          We order accordingly.

          However, while dismissing the complaint as not maintainable, we reserve the rights of the complainant to approach the appropriate civil court to seek his remedy, if so advised. He may take advantage of the ruling of the Hon’ble 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.

          Copy of this order may be forwarded to the parties to the case are statutorily required .

File be consigned to records.

 

 

(ANIL SRIVASTAVA)                                                            (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)