BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 08.10.2024

PRESENT

Mr.K.B SANGANNANAVAR          :       JUDICIAL MEMBER

Mrs. DIVYASHREE M         :       LADY MEMBER

APPEAL NO.349/2019

ORDER

Delivered by Mr.K.B.Sangannanavar. Prl.DJ (R) Judicial Member.

01.   This is an Appeal filed by complainant in C.C. No.3145/2017 on the file of Bangalore Urban District Consumer Disputes Redressal Forum, Bangalore, aggrieved by the order dated: 19.12.2018.

02.   The parties to this Appeal will be referred to as their rank assigned to them by the District Commission.

03.   The Commission examined the grounds of appeal, Impugned order, appeal papers and heard the arguments.

04.    Now the point that arise for consideration of this Commission would be:

“Whether the impugned order dated: 19.12.2018 passed in C.C. No.3145/2017 does call for any interference of this Commission for the grounds set out in the Appeal Memo?”

05.    The appellant/complainant has raised a consumer complaint on 07.12.2017 to direct the opposite party to refund a sum of Rs.5,50,000/- and to pay Rs.3,60,428/- towards interest at 12% per annum from 15.12.2011 to 31.05.2017 and to pay Rs.1,00,000/- damages for mental agony and cost of litigation. 

06.    The Complainant in his complaint has alleged against opposite party who is a builder and developer engaged in the activity of developing layouts and other real estate projects marketing sites, lands, etc., with whom he has entered in to an Assignment Agreement dated: 15.12.2011 with respect of the property bearing site Nos.1408 and 1409, each site measuring 30 x 40 feet, both sites totally measuring 2400 sq. ft. in the layout called “Max Residency” formed in lands bearing Sy. Nos.189, 9/2, 8/B10, Sy.No.193 and Sy.No.8P9, situated at Tindlu Village, Kundana Hobli, Devenahalli Taluk, for total consideration of Rs.14,88,000/- and under the said Assignment Agreement complainant paid Rs.5,50,000/- towards advance amount and he was ready to pay balance sale consideration at the time of on or before registration of absolute sale deed in favour of complainant within 180 days stipulated time period as per Assignment Agreement.  Complainant has alleged against opposite party that, OP always neglected and has not considered his request to fulfill necessary formalities for sale transaction.  He had also issued legal notice to opposite party.  However he has not chosen to refund the amount to complainant and in such circumstances has raised consumer complaint, which being contested by the opposite party contending complaint is barred by limitation and is not maintainable either in law or on facts.  Opposite party is doing real estate business and registered under the Companies Act and acquired goodwill in the real estate field all over India and he admits booking of two sites bearing Nos.1408 and 1409 in their project “Max Residency Phase III” measuring 1200 sq. ft. each for total consideration of Rs.14,88,000/- and admits receipt of Rs.4,50,000/-, but denied payment of Rs.1,00,000/- through cheque No.856660, dated: 03.10.2010.  Opposite party denied that, complainant himself is not ready and willing to purchase the sites as per the terms and conditions of the booking form and Assignment Agreement.  As per booking form terms and conditions OP is having legal right to deduct 15% in the advance amount paid by the complainant.  Further submitted only option left to complainant is to take alternative site in the other project which is fully developed as per the present market value or to take advance amount after deducting 15%.

07.    In view of rival contentions of the parties to the complaint District Forum held complainant is not a consumer and does not come within the definition of Section 2(1)(d) of Consumer Protection Act, 1986 and held booking of two plots is an investment to make profit by sale and it was a commercial purpose thereby referring judgments of Hon’ble National Commission proceeded to dismiss the complaint as not maintainable with an observation to get redress his remedy before the competent court of law having got jurisdiction to try the same.  It is this order is assailed in this appeal contending District Forum has failed to perceive the facts in right perception.  The District Forum has failed to appreciate the fact that, site Nos.1408 and 1409 together measuring 40 x 60 ft. and they are totally measuring about 2400 Sq. ft. situated in the name called “Max Residency” which could not be inferred that they were purchased for re-sale to make profits or they were booked for commercial purpose.  In  our view such contentions could be acceptable, since  site Nos.1408 and 1409 booked by complainant were shown to be  located abutting  each other matter, as such the commission cannot assume or presume that they are the two sites booked to re-sale or for commercial purpose to make money. Let us give an example, if the diminution of the site would be of 100 by 120 feet the total measurement would be 12000 square feet in which if such site owner can divide the site of 30 by 40 feet which would comes to 12 sites and may also sell such portion of sites in due course of time, which cannot be presume at the time of owning site from the service provider. Herein, on facts of the case on hand, we have to consider the sites  booked and their location and if they are located abutting each other which could be considered one with an intention to build house, was not at all perceived by the District Commission while passing the impugned ordered. The intention of the complainant has to be inferred from positive angle and not in favour of the service provider, since complainant had paid money seeking an allotment of sites and the service provider has withheld such money and they cannot be drive to civil court to get redress their grievances for simple matters. In such view of the matter, the findings recorded by the DCDRC that the intention of the complainant was to sell sites has to be held contrary to the facts placed on record. In our view even we are not expected to draw an inference that the intention of the complainant in due course of time retain one site and sell another site, since they are hypothetical events. Why not infer he would build a house in a sites measuring 60 by 40 feet, as they are abutting each other. It is therefore we are of the view that the dimension of the sites booked and their location would play a vital importance. As already stated above the dimension of the sites are 30 x 40 feet and they are abutting each other bearing Nos.1408 and 1409 and if they together considered, measures 40 x 60 ft. which could not be said that, complainant was invested the money seeking allotment of sites for commercial purpose or for re-sale which was not properly appreciated by the District Forum while passing the impugned order.

08.    It is not in dispute that complainant and opposite party have agreed under Assignment Agreement dated: 15.12.2011 Document No.1 produced by opposite party is a copy of Approved Layout Plan and Document No.2 is copy of the conversion order along with plan in Max Marvel.  The opposite party has not at all raised any objection stating that, complainant is not a Consumer under section Consumer Protection Act, 1986, but his contention was as per the booking form terms and conditions opposite party is having legal right to deduct 15% in the advance amount paid by the complainant and since complainant has not approached the opposite party with balance consideration within time limit prescribed in the booking form as well as in the Assignment Agreement, the opposite party has sold all the sites in the said project and there remain no sites.  Thus from such version submitted by opposite party if considered in our view, suffice to hold that site Nos.1408 and 1409 booked by complainant are not available to execute sale deed in favour of complainant either as on the date of issuance of legal notice dated: 06.03.2017 or on the date of raising consumer complaint. The OP never issued any notice to the complainant that the agreement arrived between party came to be cancelled and had forfeited portion of the amount paid. According to opposite party he has not rendered any deficiency of service but facts remains from the enquiry held, opposite party has with-held the hard earned money paid at Rs.5,50,000/- against the total consideration of Rs.14,88,000/-. In such circumstances before sale of site Nos.1408 and 1409 each measuring 30 x 40 feet situated at Max Residency, OP is expected to issue a notice to the complainant and when such notice is not issued by opposite party, his actions and commissions have to be held rendering deficiency of service, yet the DCDRC failed to perceive is nothing but committing grave error.

09.    Let us examine the decisions relied on by District Forum in para-9 & 10 of the impugned order.  They are (i) IV (2013) CPJ 221 (NC) in the case of Sanjay Bansal Vs. Vipul Limited & Ano – wherein it is held as under:-

Consumer Protection Act, 1986 – Sections 2(1)(g), 21(b) – Consumer – commercial purpose – booking of flat – complainant had booked four flats as an investment to make profit by re-sale – person who hires or avails of any service for any commercial purpose is excluded from definition of consumer.

In our view the above decision has no application to the facts of the case, since booking of both plots and a booking of a site bearing Nos.1408 and 1409 together measuring 60 x 40 ft. abutting each other are quite different was not at all appreciated by the District Forum before applying to the facts of the case on hand.

(ii) III (2012) CPJ 315 (NC), in the case of Chilukuri Adarsh Vs. ESS VEE constructions, wherein it is held that,

          Consumer Protection Act, 1986 – Sections 2(1)(d), 2(1)(g), 21(a)(i) – possession of showroom – inordinate delay – refund of excess amount – financial loss and mental agony – commercial purpose – consumer – complaint filed – Even when consumer has booked more than one unit of residential premises, it amounts to booking of such premises for commercial purpose – agreement was for construction of two showrooms – complainant no consumer.

          In our view from the discussions made above viewed from any angle since each case has to be decide on the given facts as such complainant herein cannot be said not a consumer and we are of the view that the above ratio has     no application  to the facts of the case on hand. 

(iii)     Hon’ble National Commission, CC No.14/2013 in the case of Ved Kumari & Ano – Vs. Omaxe Build home Private Limited, dated: 05.03.2014 by.

(iv) Hon’ble National Commission, CC No.05/2014 in the case of Sunil Gupta Vs. Today Homes & Infrastructure Private Limited and CC. dated: 03.02.2014. 

           The DCDRC in its order cited the above two decision,   failed to appreciate as to how they are applicable to the case on hand. 

10.    District forum in para-10 has stated in the instant case complainant nowhere pleaded in his complaint that, the investment of the amount on two sites are in respect of, eaking for his livelihood.  In our view such mentioning could be said to build a house as they are abutting each other and complainant had pleaded sites were booked for eaking for his livelihood,  the District Commission could have held he is a consumer within the meaning of S.2(1) (d) of CPA, 1986. The DCDRC relied on a decision reported in 2018 (1) CPR 244 (NC) in the case of Shweta Sharma Vs. M/s. BPTP Limited, wherein at para-4 held as under:-

The State Commission vide its order dated: 07.04.2017 while dismissing the complaint observed as under:-

“4.     Learned counsel for the complainant argued that the shop was booked for earning livelihood as specifically alleged in complaint so it cannot be considered that it was for commercial purpose.  She is covered by definition of consumer and this complaint is maintainable.

5.       However, there is no dispute that in paragraph No.3 of the complaint it is alleged that the shop was booked for earning livelihood, but she did not produce any evidence to prove this fact.  When complainant entered witness box it was nowhere stated that this ship was booked in commercial complex for earning livelihood.  The National Commission has clearly opined in Revision petition No.4044/2009 titled as M/s. JCB India Limited Vs. M/s. Chandan Traders and Others, decided on 19.02.2015 that simple averments that anything was taken for earning livelihood is not sufficient to presume this fact to be true.  It is specifically opined there in that concerned person is supposed to prove that said article was to be used by him or her for earning livelihood.  Complainant nowhere alleged that what is she doing and what business was to be run in this shop.  It is also not alleged that she was not having any source of income and particular type of business was to be run by her.  When these facts are missing it cannot be presumed that the hop was booked for earning livelihood.  These views are also fortified by the opinion of the National Commission in Revision Petition No.421/2015 titled Unicity Projects and Anr. Vs. Ranjan Bhatia decided on 09.10.2015, Pradeep Singh Pahal Vs. TDI Infrastructure Private Limited, CPJ 1 (2016) 219.  When she is not covered by definition of consumer, complaint is not maintainable and this Commission cannot adjudicate upon this dispute because judgment without jurisdiction is nullity as opined by the National Commission expressed in Revision petition No.317/1994 titled as Haryana Urban Development Authority Vs. Vipan Kumar Kohli decided on 19.01.1995.  Resultantly complaint fails and the same is hereby dismissed.”

11.    In our view, even this decision has no application   to the facts of the case. The District Commission  relying all the above decisions which have no application committed grave error in dismissing the complaint on the ground that, complainant is not a consumer and does not comes within the definition of section 2(1)(d) of the Consumer Protection Act, 1986.  Hence we conclude that, complaint raised by complainant is   maintainable under the Consumer Laws and the complainant is held a Consumer and definitely comes within the definition of Section 2(1)(d) of Consumer Protection Act, 1986 and it goes without saying   opposite party as a developer and builder being involved in real estate business is a service provider is bound  to amenable to the consumer commissions and the consumer law  is bound to return the amount of Rs.5,50,000/-, since,  with held   without executing sale deed in respect of the sites booked.  Since, the  complainant being an employee and a middle  class of the society,   who intended  to buy the property to build his dream house could not get site has to be held entitled for interest in lieu of compensation which in our view  9% p.a. would meet the ends of justice.  Further complainant is also entitled for some amount of compensation for rendering deficiency of service and cost of litigation.  In such conclusion, we proceed to allow the appeal in part. Consequently set aside the order dated: 19.12.2018 passed in CC No.3145/2017 on the file of Bangalore Urban District Consumer Disputed Redressal Forum, Bangalore, as a result allowed the complaint in-part and directed the opposite party to refund Rs.5,50,000/- along with interest at the rate of 9% per annum from the date of receipts till realization and do pay compensation of Rs.50,000/- for rendering deficiency of service and Rs.25,000/- towards litigation cost within 45 days failing which even such amount awarded shall carry interest at 9% per annum from such default date till realization. 

12.    Send copy of the order to both parties and the DCDRC.

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LADY MEMBER                                   JUDICIAL MEMBER

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