NCDRC

NCDRC

CC/374/2013

Shri NITIN TREHAN, - Complainant(s)

Versus

M/s HDFC LTD. & 3 ORS., - Opp.Party(s)

MR. M. K. CHOUDHARY

19 Dec 2013

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
CONSUMER CASE NO. 374 OF 2013
 
1. Shri NITIN TREHAN,
House No. 5101, Opp. Tulip Lane, DLF, Phase-IV,
GURGAON.
...........Complainant(s)
Versus 
1. M/s HDFC LTD. & 3 ORS.,
Through its Managing Director, Regd. Office: Ramon House, HT Parekh Marg, 169, Backbay Reclamation, Church Gate,
MUMBAI - 400020.
2. M/s Golf Course Sahkari Awas Samiti Ltd.,
Through its Secretary, Regd. Office: C-217, Sector Beta-1, Greater Noida,
GAUTAM BUDH NAGAR.
3. Shri Mahim Mittal,
S/o Shri A. K. Mittal, R/o A-7, Sector-50, Noida,
GAUTAM BUDH NAGAR.
4. Shri Asit Mittal,
S/o Shri A. K. Mittal, R/o A-7, Sector-50, Noida,
GAUTAM BUDH NAGAR.
...........Opp.Party(s)

BEFORE: 
 HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
 HON'BLE MR. DR. S.M. KANTIKAR, MEMBER

For the Complainant :MR. M. K. CHOUDHARY
For the Opp.Party :

Dated : 19 Dec 2013
ORDER

JUSTICE J.M. MALIK 1. This judgment shall decide two complaints, which are detailed above. Both the complaints have been filed against the same Opposite Parties. They entail the same questions of law, therefore, those will be decided by a common judgment. 2. The main controversy in the above said two consumer complaints is, hether, Nitin Trehan, the complainant in both the cases, who has booked more than one unit of residential premises, is a Consumer? 3. The complainant is a Pilot with Air India, and as such, he is a Government Servant. M/s. Housing Development Finance Corporation Ltd. (in short, DFC Ltd), OP1, transacts the business of granting loans, especially in the category of Housing Loans. M/s.Golf Course Sahakari Awas Samiti Ltd., incorporated under Section 6 of U.P. Co-operative Societies Act, 1965, is OP2. Mr.Mahim Mittal and Mr.Asit Mittal, OP3 & OP4, respectively, are the Directors of OP2. 4. The complainant booked two separate flats bearing Nos. 4092 and 4093, 9th Floor, Tower-IV on Shivkala Charms, Golf Course Sahkari Awas Samiti Ltd., Plot No.07, Sector-Pi-II, Greater Noida, Gautam Budh Nagar, each flat, measuring 1950 sq.ft., super area with OP2. The cost of each flat was Rs.48,00,000/- approx. The complainant booked these flats on the assurance given by OP2 that 80% of the project was complete and the possession would be delivered, within six months. 5. For both the flats, the complainant paid booking amount of Rs.3,00,000/- each, on 12.10.2010 and further paid through cheque, in the sum of Rs.4,50,000/-, each, dated 10.10.2012, drawn on HDFC Bank Ltd, for the above said flats to OP2. He paid 15% of the total cost of the flat each, vide Annexure C-1 (colly). On 12.10.2010, the agreement was executed. In both the cases, the said agreement has been filed as Annexure C-2. The complainant was also issued Share Certificate by OP2, on 12.10.2010, subsequent to execution of the agreement, copy of the said Share Certificate in both cases was placed as Annexure C-3. OP2 raised demand letters in both the cases, dated 17.10.2010 & 18.10.2010, respectively, marked as Annexure C-4. Letter regarding clearing title was sent by OP2, which is marked as Annexure C-5. 6. A Tripartite agreement was also entered into between the complainant, OP1 & OP2, which is marked as Annexure C-6. Loan agreement was entered into between Complainant and OP1, copy of which is marked as Annexure C-7. OP1 paid a sum of Rs.39,50,000/- per flat, (Flat Nos.4092 & 4093) to OP2, vide Annexure C-8. The complainant started paying the EMIs, regularly. 7. Subsequently, it transpired that several other people, along with the complainant, have been duped by the OPs, in connivance to each other, with malafide intention and to commit fraud. It also transpired that OP Nos. 3 & 4 are the regular defaulters at Greater Noida Authority and have sold these flats of OP2, several times. The complainant approached the OP 3 but he kept on assuring the complainant that he should not worry. The cheques were given to complainant by OP3, but subsequently asked the complainant not to present the same. Consequently, these two separate complaints were filed, wherein the prayer was made that both these flats be allotted to the complainant. The Bank should be directed to waive off the total loan amount of Rs.39.50 lakhs and with so many other prayers. 8. We have heard the counsel for the complainant. The case was fixed for 03.12.2013, but the counsel was not ready and the case was adjourned to 11.12.2013. On 11.12.2013, arguments were heard, but the complainant was given time to produce the judgments in his case, for a period of three days, on 13.12.2013. The complainant moved an application under Section 148, read with Section 151 of CPC for enlargement of time with affidavit. As prayed by him, time to file the authorities in his favour, was given upto 17.12.2013. Counsel for the complainant could not file any authority in his favour. The learned counsel for the complainant argued with vehemence that the complainant has purchased two flats, one for himself and second for his children. He submitted that there lies no rub for a consumer to buy two flats. 9. The learned counsel for the complainant instead of touching the heart of problem, just skirted it. He could not invite our attention towards the pleadings. All these facts are conspicuously missing. Who are the family members? Are they minor or major, married or unmarried ? Why is the need of second flat?. The learned counsel indulged in Hubble bubble and did not clarify the position. 10. This Commission, in case titled, Chilkuri Adarsh Vs. ESS ESS VEE Constructions, III (2012) CPJ 315, has held, as under :- rguments 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 onsumer 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 Jagmohan Chabra and another Vs. DLF Universal Ltd., IV (2007) CPJ 199, in a somewhat similar case held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Honle Supreme Court as Civil Appeal No. 6030-6031 of 2008, filed before the Supreme Court stands dismissed, vide Apex Court order dated 29.09.2008 11. We reserve the right 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 Honle Supreme Court in the case of Laxmi Engineering Works Vs. PSG Industrial Institute, II (1995) CPJ 1 (SC), to seek exclusion of the time spent in prosecuting this complaint before this Commission. Therefore, both the complaints accordingly, are dismissed, in limine.

 
......................J
J.M. MALIK
PRESIDING MEMBER
......................
DR. S.M. KANTIKAR
MEMBER

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