Haryana

Panchkula

CC/32/2015

NIVACHEM PRIVATE LIMITED. - Complainant(s)

Versus

M/S HARYANA STATE INDUSTRIAL &INFRASTRUCTURE DEVELOPMENT CORPORATION. - Opp.Party(s)

COMPLAINANT IN PERSON.

15 Sep 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                      

Consumer Complaint No	:	32 of 2015
Date of Institution	:	11.02.2015
Date of Decision	:	15.09.2015

M/s Nivachem Pvt. Ltd. through its authorized signatory D.K.Gupta, # 235, Sector-9, Panchkula, Haryana-134113.

                                                                                        ….Complainant

Versus

1.       M/s Haryana State Industrial & Infrastructure Development Corporation, Plot No.C-13 & 14, Sector-6, Panchkula-134109, through its Managing Director.

2.       Department of Industries, Haryana State Government, through its Principal Secretary, Department of Industries, Civil Secretariat, Chandigarh.

3.       Sh.R.P. Gupta, HOD Estate, Estate HSIIDC, Plot No.C-13 & 14, Sector-6, Panchkula-134109.                                                     

                                                                                      ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

For the Parties:     Complainant in person. 

                             Mr.Dishant Rishi, Adv., for the Ops.

 

ORDER

(Dharam Pal, President)

1. The complaint has been filed by the complainant with the averments that he was allotted an industry plot No.30 & 31 at HSIIDC, Industrial Estate, Kalka by the Op No.1 in the year 1990 on the recommendation of a Committee. The complainant-company entered into an agreement for sale of the plots No.30 & 31 with M/s Sarwan Kumar and Sons through its partners Mr.Sarwan Kumar s/o Sh.Ishar Das and Mrs. Sushma w/o Sh.Sarwan Kumar on 05.09.2013 which was to be executed on or before 31.12.2013. Thereafter, the complainant-company applied for ‘Permission of Transfer’ in favour of the buyers vide its application dated 01.10.2013 with all necessary documents as required by the Op No.1. The Op No.1 raised series of objections in piece meals which was removed by the complainant-company but no such permission for transfer has been granted to the complainant-company. Thereafter, the OP No.1 raised many objections i.e. OP No.1 wrote letters dated 22.10.2013, 11.04.2014, 26.06.2014, 30.06.2014 and 25.07.2014 which were replied by the complainant vide letter dated 25.10.2013, 24.04.2014, 02.07.2014 and 07.08.2014. Thereafter, the complainant met the MD of the Corporation and made a representation dated 12.08.2014 but to no avail. The complainant requested the Op No.1 vide letter dated 16.08.2014 & reminder that the all the necessary objections/formalities have been complied but to no avail. On 26.12.2014, the complainant-company made a complaint to the Chief Minister of Haryana through C.M.Window, Panchkula but nothing has been done.  News published in the newspaper ‘The Tribune’ dated 30.12.2014 that Darshan Kumar Gupta was running pillar to post for the last one and half year to get transfer permission from HSIIDC which was being denied for want of consideration and the complainant-company was suffering financial losses by way of interest on the amount of Rs.6,00,000/- which has been retained by purchasers dealer for want of transfer permission. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops appeared and filed written statement by taking some preliminary objections and submitted that the Ops have never any problem or difficulties in issuing the NOC for transfer of the Unit of the complainant-company, as single unit subject to the condition of removing serious zoning/building violations made by the complainant-company. However, no permission to transfer could be allowed to sell as a bifurcated unit which was not legally permissible as per policy/rules. It is submitted that sale of plot would allow as single unit and not as bifurcated plots. It is submitted that the observations like status of zoning violation, cancellation of old agreements to sell and submission of fresh agreements etc. were conveyed to the complainant-company and the request of the complainant-company could not be allowed due to non-compliance of observations raised by the corporation. It is submitted that the plot in question was used for commercial purpose as such the complaint of the complainant-company is not maintainable under the provisions of the Act. It is submitted that the plots No.30 & 31 were allotted by the Corporation in favour of M/s Nivachem vide allotment letter dated 29.08.1991 as one single unit which could not be bifurcated but the allottee implemented the project on 18.03.1993. It is submitted that the allottee applied or transfer of plot vide application dated 01.10.2013 alongwith the documents i.e. application form, Board resolution, Memorandum & Article of Association of M/s Nivachem Pvt. Ltd., CA certificate dated 14.09.2013 regarding authorized paid up capital & list of directors, copy of letter dated 12.11.2012 issued by the Corporation for change in constitution from sole proprietorship to Pvt. Ltd Company, Copy of allotment letter dated 29.08.1991, Copy of conveyance deed dated 31.01.1996, Copies of two agreements to sell dated 05.09.2013 one executed with Mrs.Sushma w/o Mr.Sarwan Kumar for plot No.30 and other executed with Mr.Sarwan Kumar plot No.31, IE, Kalka, affidavit from original allottee, Indemnity bond from original allottee, undertaking bond from original allottee, copy of sale tax assessment orders, copy of balance sheet for the year ending March 1994 to 1998, copy of FIR and copy of bill for fire brigade clearance. It is submitted that a letter dated 11.04.2014 was issued by the OP No.1 with a request to submit copy of approved building plan as the same was not available in Ops’ record to confirm status o updated construction. It is submitted that letter dated 26.06.2014 was issued regarding payment of maintenance charges in six installment (monthly) instead of payment of maintenance charges. It is submitted that letter dated 30.06.2014 was issued to the allottee regarding zoning violation on the plot, submission of copy of approved building plan, cancellation of old agreements, submission of fresh agreement for sale of plot as single unit and CA certificate containing certain details but instead of complying with the observations, the complainant-company vide its letters dated 02.07.2014 & 05.07.2014 submitted the observation which mentioned in the para 6 (c) sub para (f) of the reply. It is submitted that the Op No.1 issued letter dated 25.07.2014 as a reminder of letter dated 30.06.2014 as the complainant-company failed to comply with the observations but instead of complying with the observations, it again elaborated the matter vide letter dated 07.08.2014.  It is submitted that the complainant-company filed a complaint before the Managing Director, HSIIDC vide letter dated 12.08.2014 and the matter was discussed by DGM (E)-cum-Estate Manager, Barwala with Mr.Darshan Kumar Gupta-allottee of the plots wherein the complainant-company was requested to submit the documents as required earlier letter but instead of complying with the observations, issued letter dated 16.08.2014. Thus, there is no deficiency in service on the part of the Ops and prayed for dismissal of the complaint with costs.
3. The complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-17 and closed the evidence. On the other hand, the counsel for the Ops has tendered into evidence by way of affidavit Annexure R-A alongwith documents Annexure R-1 to R-4 and closed the evidence.
4. We have heard the complainant & learned counsel for the Ops and have also perused the record carefully and minutely.
5. After scrutinizing the entire evidence and after hearing arguments of the complainant appearing in person and learned counsel for the Ops, we find that the complaint filed by the complainant before this Forum is not maintainable.
6. An industrial plot No.30 & 31 at HSIIDC, Industrial Estate, Kalka was allotted to the complainant by the Ops in the year 1990. The complainant entered into an agreement for the sale of the said plot No.30 & 31 with Mr.Sarwan Kumar and Mrs.Sushma partner of M/s Sarwan Kumar and sons on 05.09.2013 and the sale deed was to be executed on or before 31.12.2013. The complainant applied for permission of transfer in favour of abovesaid persons vide application dated 01.10.2013 (Annexure C-1). The complainant contended that the Ops raised the objections in piece meal which were removed by the complainant but till the date of filing of the complaint permission for transfer has not been granted to the complainant. The complainant also met in person to the MD of the corporation and made representation dated 12.08.2014 (Annexure C-8). The complainant wrote a letter dated 16.08.2014 stating that all the necessary objections formalities have been duly complied with and requested for the grant of permission. The complainant has also made a complaint to the Chief Minister of Haryana on 26.12.2014 through CM window. The complainant further contended that as per agreement with Mrs. Sushma and Mr.Sarwan Kumar the last date of execution of the sale deed was 31.12.2013. The sale deed was already executed to avoid the litigation. The complainant made following prayer:-
   1. To issue the Permission of Transfer to the complainant immediately without further delay;
   2. To pay interest @ 18% on Rs.6,00,000/-, which has been retained by Buyer for want of transfer permission and not paid to complainant w.e.f. 31.12.2013 to till date i.e. 7^th February, 2015 amounting to Rs.1,26,000/-;
   3. To pay a sum of Rs.1,00,000/- towards harassment & mental agony caused due to deficiency of service on the part of the Ops;
   4. To pay Rs.11,000/- towards cost of litigation & cost of this complaint.
7. On the other hand, the learned counsel for the Ops has contended that the complainant applied for transfer of the plot vide letter dated 01.10.2013 alongwith certain documents detailed of which is mentioned in para 4 of the reply including two agreements to sell dated 05.09.2013, which were executed with Mrs.Sushma w/o Mr.Sarwan Kumar for the plot No.30 IE, Kalka and with Mr.Sarwan Kumar plot No.31, IE, Kalka (Annexure R-2). Since plot No.30 and 31, IE, Kalka were allotted by the Ops to the complainant as a single plot for setting up a project to manufacturing medicines vide allotment letter dated 29.07.1991. The proposed transfer by bifurcating unit was not permissible under the policy, the complainant was informed by letter dated 22.10.2013 (Annexure R-3). The learned counsel for the Ops further contended that after going through the case, certain observations were conveyed to the complainant vide letter dated 30.06.2014 and 25.07.2014 regarding (a) Zoning/construction violation on the plot (b) Submission of copy of approval building plan (c) Cancellation of old agreement (d) Submission of fresh agreement for sale of plot as single unit and CA certificate containing certain details due to which in the absence of these compliance the NOC could not be issued to the complainant.
8. The foundational point touching the very locus standi of the complainant to invoke the jurisdiction of the District Consumer Forum would require adjudication in the very first instance.
9. During the arguments, the complainant placed on record the sale deed executed with Mrs.Sushma and Mr.Sarwan Kumar and the same were marked as mark ‘A’ and ‘B’. From the perusal of the sale deed, it reveals that the sale deed mark ‘A’ of plot No.30 is executed in favour of Mrs.Sushma w/o Sh.Sarwan Kumar and sale deed mark ‘B’ was executed in favour of Mr.Sarwan Kumar s/o Sh.Ishar Dass without permission to transfer to be issued by the Ops. As per sale deed, there is no mention about the retention of Rs.6,00,000/- of the complainant by the buyer for want of transfer permission and not paid to the complainant w.e.f. 31.12.2013 to 07.02.2015 amounting to Rs.1,26,000/- as interest @ 18% p.a. Moreover, in the sale deed mark ‘A’ executed in favour of Mrs.Sushma, it has been mentioned that the seller has received Rs.5,00,000/- at the time of agreement to sell and Rs.24,50,000/- vide cheque No.258555 dated 27.12.2013 has been received against the total price of Rs.29,50,000/-. In the sale deed mark ‘B’ it has been mentioned that the complainant has received Rs.5,00,000/- at the time of sale deed and Rs.12,25,000/- vide cheque No.449118 dated 03.01.2014 and Rs.12,25,000/- vide cheque No.258556 dated 03.01.2014 and received total amount of Rs.29,50,000/-. In the above sale deed, it has also been mentioned that the seller has no connection in future with the abovesaid site. It has also been mentioned in the abovesaid sale deed that no services were availed of any property dealer and transactions have been settled by the seller and purchasers themselves. In support of their contention, the complainant has placed on record the memorandum of understanding (Annexure C-13) entered between Sh.Sukhwinder Singh Saini and M/s Nivachem Pvt. Ltd., Kalka through Mr.D.K.Gupta, Director. In the abovesaid MOU, it has been stated that Mr.Sukhwinder Singh who is working as property dealer at Pinjore have made efforts to sell the plot No.30 & 31 situated at HSIIDC, Kalka to Mr.Sarwan Kumar. In the abovesaid MOU, it has also been mentioned that the sale deed was to be executed/completed within 3 months of the agreement i.e. by 04.12.2013 and necessary permission for NOC/transfer permission was to be obtained by seller but he could not get the same. Hence, the period of execution was extended upto 25.12.2014. It has been further mentioned that the transfer permission shall be delivered to the buyer after receiving from the HSIIDC. A sum of Rs.6,00,000/- has been duly received by Sh.Sukhwinder Singh from Mr.D.K.Gupta in cash, which shall be returned to the seller in accordance with clause 6 of MOU. As per clause 6 of MOU, the seller shall indemnify the buyer by depositing a sum of Rs.6,00,000/- cash in custody of the property dealer as security which shall be refunded to the seller after submitting transfer permission to the buyer as and when received from the HSIIDC. The abovesaid MOU has been agreed upon on 01.01.2014 whereas the sale deeds were executed on 27.12.2013. As per the MOU, the period for execution of sale deed was extended upto 25.12.2014 but it is not understood what was hurry to get the sale deed executed on 27.12.2013. From the above, it reveals that the abovesaid MOU is a procured document and the complainant tried to mislead this Forum.
10. As per the complaint, the complainant has admitted that they are running the industry on the above said plot. Since, the preliminary objection has been raised by the Ops that the plot in question having admittedly being allotted and used for commercial purpose as such the complaint is not maintainable under the provision of the Consumer Protection Act, 1986, it would be appropriate to first deal with this objection. Section 2 of the Consumer Protection Act, 1986 dealing with definitions, in Sub-clause (d) defines a ‘consumer’ as under:-

“(d) ‘Consumer’ means any person who-

1. 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
2. hires or avails of any services 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 beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

     Explanation- For the purposes of this clause, ‘commercial purpose’ does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.”         

11. It is clear from this provision that after the Amendment Act, 62 of 2002, which came into effect from 15^th of March, 2003, any person who buys any goods or avails any service for a consideration, if it relates to a commercial purpose, except on the ground of earning his livelihood by means of self employment, would not fall within the definition of a ‘consumer’ and, therefore, any such dispute would not be a consumer dispute and the consumer Fora would have no jurisdiction to entertain any complaint for such dispute.
12. In Monstera Estate Pvt. Ltd. vs. Ardee Infrastructure Pvt. Ltd. –IV (2010) CPJ 299 (NC), the on’ble HHHHHHhhhhhh     HHHHHHHHon’ble National Commission held, as under:-

“Housing-Purchase of space for commercial purpose – There was delay in possession. Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed. Deficiency in service was alleged. It was held that even if private limited company was treated as ‘person’, purchase of space could not be for earning its livelihood. Purchase of ‘space’ was or commercial purpose.”

13. Moreover, at the time of filing the complaint, the complainant was not a consumer as he has already sold this property to Mrs.Sushma and Mr.Sarwan Kumar. The law on the point was authoritatively laid down by the Hon’ble Supreme Court in Special Leave Petition (c) No.13917 of 2009 titled as Suraj Lamp & Industrial Pvt. Ltd. versus State of Haryana and others decided on 11.10.2011 and our Hon’ble State Commission has decided the issue in appeal No.712 of 2006 decided on 23.05.2012 titled as Haryana Urban Development Authority versus R.T.Batra.
14. The judicial pronouncements quoted in the course of paras No.12 & 13, appreciated in conjuction with the definition provided under statutory law (quoted in para No.10), clinching prove that want of locus standi on the part of the complainant to file a complaint on the averred grievance. This provision as also the rulings proves the non-maintainability of the complaint before a District Consumer Forum. Our attention was not invited to any statutory provision or judicial pronouncement to the contrary, during the course of hearing. No other point was argued to persuade us to the contrary.
15. In view of the above facts and circumstances, we are of the view that the present complaint deserves to be dismissed and the same is dismissed, leaving the parties to bear their own costs.
16. However, there lies no rub for the complainants to seek remedy before any other appropriate Forum or civil court, as per law. Further, they may seek help from the law laid down in the celebrated authority reported in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, on the question of limitation.
17. A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

 

Announced

15.09.2015           S.P.ATTRI       ANITA KAPOOR       DHARAM PAL

                            MEMBER        MEMBER                    PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

    

                                 

                                                         DHARAM PAL

                                                          PRESIDENT