BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.86 of 2015

Date of Instt. 05.03.2015

Date of Decision :06.10.2015

Jaspal Kaur Dosanjh wife of Balwinder Singh Dosanjh R/o 52-Defence Colony, Jalandhar.

..........Complainant Versus

1. M/s Niti Shree Infrastructure Ltd, B-111, Sector-5, Noida, Gautam Budha Nagar, U.P.through its Managing Director/Directors/Principal Officer.

2. M/s Niti Shree Infrastructure Ltd, Shourya Greens, Surya Enclave, Jalandhar, Punjab, through its General Manager (Marketing).

3. Mr.Vijay Inder Partap, General Manager, M/s Niti Shree Infrastructure Ltd, Shourya Greens, Surya Enclave, Jalandhar, Punjab.

.........Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Sh.Parminder Sharma (Member)

Present: Sh.HD Bhatia Adv., counsel for complainant.

Sh.Sushil Mehta Adv., counsel for opposite parties.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant purchased the flat bearing No.A1-403 in Shourya Greens, Surya Enclave, Jalandhar vide allotment letter dated 7.11.2006. As per the terms and conditions of the agreement executed between the complainant and the opposite parties, the construction was to be completed in December 2007 and there was a condition of three months grace period i.e upto March 2008. It was stipulated condition that if the opposite parties failed to complete the construction and deliver the possession of the flat to the complainant within above said stipulated period, the penalty @ Rs.5/- sq.feet would be paid to the purchaser by the opposite parties. The constructed portion of the flat is 1955 sq.feet. The opposite parties have sent one letter to the complainant dated NIL received in June 2010, and vide this letter the opposite parties have admitted the liability of Rs.2,54,150/- as penalty due from them to the complainant. The opposite parties have also got published one notice in Newspaper 'Dainik Bhaskar' dated 1.12.2007 and 'Punjab Kesri' dated 1.12.2007 and it has been mentioned in the said news item published in newspaper Punjab Kesri that penalty at the rate of Rs.5/- per sq.feet would be paid to the purchaser. In the news item published in Dainik Bhaskar it has been mentioned that possession would be delivered to purchaser in the month of April, 2008. But the opposite parties have failed to fulfill their commitment and did not complete the construction and handover the possession of the flat to the purchaser in the month of April, 2008. The complainant has been delivered possession on 13.11.2013 when 'No Dues Certificate' was also issued by the opposite parties in favour of the complainant regarding the above said flat bearing No.A1-403. As per the letter dated NIL sent by the opposite parties, the amount of Rs.2,54,150/- was due for the delay of 26 months. Thereafter, a further delay has been caused for 40 months and further penalty for 40 months is calculated at Rs.3,91,000/-. In this manner, there is total delay of 66 months i.e from 1.4.2008 to 13.11.2013. As the covered area is 1955 sq.ft and monthly penalty @ Rs.5/- per sq.ft comes to Rs.9775/- and further this amount of Rs.9775/- multiplied by 66 months comes to Rs.6,45,150/-. The complainant was to pay a sum of Rs.1,57,500/- to the opposite parties as balance payment. While delivering the possession on 13.11.2013, amount of Rs.1,57,500/- has been adjusted against the sum of Rs.6,45,150/-. Now after adjustment of the amount of Rs.1,57,500/- out of the total amount of Rs.6,45,150/-, the balance of Rs.4,87,650/- is due from the opposite parties on account of the penalty. On such like averments, the complainant has prayed for directing the opposite parties to pay her Rs.4,87,650/- alongwith interest. She has also claimed punitive damages and litigation expenses.

2. Upon notice, opposite parties appeared and filed a written reply raising preliminary objections regarding limitation, complainant being not consumer etc. They pleaded that complainant herein is having more than one booking of the flats in her name in the project of the opposite parties. The details of booking of the complainant are stated hereunder for perusal of this Forum:-

3. It is evident from above fact on record that complainant is having more than one booking alongwith her husband in the project of the opposite parties company. In other words, the purpose of purchasing the flats from the opposite parties by the complainant can not be considered as residential, but for commercial gain through investment and said activity can not be said for earning livelihood since it is not even so pleaded by the complainant. In terms of the provision in section 2(1)(d)(ii), which will be applicable to the case at hand, a person availing such a service is excluded from the definition of consumer and not entitled to maintain the present complaint under the Consumer Protection Act the said proposition is well settled by the Hon'ble National Commission that person having more than one flat is not consumer, hence the complaint of the complainant is liable to be dismissed on this ground alone. The possession of the flat was to be delivered after payment of all balance installments of the flat. It is stated that before making the final installment the complainant started raising the disputes regarding the payment of installments of flat. The flat buyer agreement clearly provides for payment plan on cash down payment plan to the flat buyer agreement which is duly relied upon by the complainant in her complaint. There was consistent delay on the part of the complainant to make timely payment on account of same, total amount of Rs.173576/- was due against the complainant which was duly informed to the complainant vide letter dated 30.12.2011. On account of aforesaid dispute the complainant herein approached the opposite parties for settlement of dispute and after mutual discussion, it was agreed between the parties that the opposite parties shall provide the waiver of Rs.1,57,500/- which is payable by the complainant at the time of possession and said outstanding amount shall be adjusted towards delay compensation charges to the complainant on account of delay in handing over of flat in full and final settlement of all dues of the complainant qua the said flat and after providing for said deduction nothing shall be due against each other. They denied other material averments of the complainant.

4. In support of her complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C13 and closed evidence.

5. On the other hand, learned counsel for the opposite parties has tendered affidavit Ex.OP/A alongwith copies of documents Ex.O1 to Ex.O8 and closed evidence.

6. We have carefully gone through the record and also heard the learned counsels for the parties.

7. It is not disputed that complainant has booked flat No.A1-403 in the scheme of the opposite parties vide allotment letter dated 7.6.2006. The area of the flat was 1955 sq.feet. According to the complainant there was delay in handing over the possession of the flat to her as same was required to be delivered in April 2008 but it was actually delivered on 13.11.2013. Counsel for the complainant contended that delay in handing over the possession to the complainant constitute deficiency in service and opposite parties have published a news item in newspapers that they would be liable to pay penalty @ Rs.5/- sq.feet. Counsel for the complainant contended that in all the complainant was entitled to Rs.6,45,150/- on account of penalty and after adjusting Rs.1,57,500/- which were due from the complainant to the opposite parties, the complainant is entitled to Rs.4,87,650/- as penalty from the opposite parties. In support of above contentions, learned counsel for the complainant has relied upon Subhash Chander Mahajan & Anr Vs. Parsvnath Developers Ltd, II (2014) CPJ 719 (NC), Emaar MGF Land Limited & Anr Vs Karnail & Anr, IV(2014) CPJ 188 (NC), Kwality Colonisers Pvt Ltd Vs Sunita Bali & Ors IV (2014) CPJ 758 (NC), Sanjay Kumar Gupta Vs. Kebal Kishan Barma & others, Revision Petition No.3956 of 2008 decided on 3.7.2014 by Hon'ble National Commission.

8. On the other hand counsel for the opposite parties contended that complainant has booked three flats i.e one in her own name alongwith her husband and two by her husband in the scheme of the opposite parties and this fact clearly shows that the complainant alongwith her husband booked the three flats for the purpose of investment i.e for commercial gain. We have carefully considered the contentions advanced by learned counsel for both the parties.

9. The above cited authorities relied upon by learned counsel for the complainant are on its own facts and in different context and not attracted so far above objection raised by the opposite parties is concerned. It is not disputed that delay in delivering the possession constitute deficiency in service. The main question which falls for determination in the present case is whether complainant and her husband had booked three flats with opposite parties for the purpose of investment and to get gain by reselling it i.e for commercial purpose. From the evidence on record it is clear that the complainant and her husband has booked three flats in the scheme of the opposite parties. Ex.C2 is agreement regarding flat in dispute bearing No.403. Ex.O4 is application regarding the flat No.403 and as per this application her husband Balwinder Singh is co-applicant with her. So the present complainant alongwith her husband applied for the flat No.403. Ex.O7 is allotment letter in respect of flat No.401 in the name of Balwinder Singh i.e husband of the complainant. Ex.O6 is application given by Balwinder Singh in respect of flat No.402. Ex.O2 is No Due Certificate in respect of flat No.402. So from the above documents, it is evident that the complainant booked one flat in her own name alongwith her husband and two flats were booked by her husband Balwinder Singh. In Ved Kumari & Anr Vs Omaxe Buildhome Pvt Ltd & Anr II (2014) CPJ 146(NC), the complainants have booked more than one flat and while considering the question whether complainants are consumers, the Hon'ble National Commission has held as under:-

"3. The complainant argued that he is a consumer as per the Consumer Protection Act, 1986. He admitted that he has booked all these flats for investment and for taking care of his family in the future. He explained that as a matter of fact, the above said property consists of two rooms only. He was married subsequently. Their family stands increased. He wants a three-room flat. He explained that the flat in dispute is situated in Omaxe Grand Wood at Sector 93B, Noida, which is a flat, having three bed-rooms. He explained that his family will feel comfortable in that flat and other four flats are yet to be allotted in their favour. It is mentioned here that out of four flats, three flats are in the joint names of the complainants and the 4th flat is in the name of Sh.Ashish Kaul.

4.All these arguments have left no impression upon us. It is apparent that the complainants are investors and they are not consumers. This view stands fortified by various following authorites.

5.This Commission, in case titled, Chilkuri Adarsh V.ESS ESS VEE Constructions, 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 can not be maintained before the 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 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 V.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 of the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Hon'ble Supreme Court as Civil Appeal Nos.6030-6031 of 2008, filed before the Supreme Court which stands dismissed, vide Apex Court's order dated 29.9.2008.

6.This Commission, by a Bench, consisting of Justice J.M.Malik and Mr.Vinay Kumar in the case titled as Mrs.Savi Gupta Vs. Omaxe Azorim Developers Pvt Ltd, IV (2012) CPJ 327 in Consumer Complaint No.208 of 2012, decided on 1.10.2012, took the same view.

7. This Commission, by a Bench, consisting of Justice J.M.Malik and Dr.S.M.Kantikar 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 2.9.2013, took the similar view, wherein it has 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 complainants before this Commission".

8. Consequently, we are of the considered view that the complainants are not the consumers. Consequently, this complaint is not maintainable".

10. The ratio of this authority is fully applicable on the facts of the present case. Admittedly, complainant and her husband have booked three flats in the scheme of the opposite parties. According to the own version of the complainant as pleaded in para 5 of the complaint, the possession was delivered on 13.11.2013. The present complaint was filed on 4.3.2015 but while filing the present complaint the complainant mentioned her address as resident of 52-Defence Colony, Jalandhar meaning thereby that even after getting the possession as back as 13.11.2013 is not residing in the said flat. So this fact further supports the conclusion that complainant and her husband had booked the above said three flats with opposite parties for investment purpose and not for residence for herself or his family. Even in her affidavit Ex.CW1/A the complainant has not explained as to for what purpose, they booked three flats in the scheme of the opposite parties. So obviously three flats were booked for commercial purpose and as such complainant can not be termed as consumer.

11. Consequently, the present complaint is not maintainable and dismissed as such. However, complainant is at liberty to approach Civil Court or any other appropriate authority for redressal of her grievance. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jaspal Singh Bhatia

06.10.2015 Member President