(Per Shri S.R.Khanzode, Hon’ble Presiding Judicial Member
(1) This consumer complaint pertains to alleged deficiency in service on the part of opponent, M/s. Ravi Real Estate Developers Pvt. Ltd. (‘builder’ in short) by not hading over the flat to the complainant, Haneef Usma Cheena (hereinafter referred to as ‘complainant’) which the complainant agreed to purchase as per agreement dated 23/07/2002 for a total consideration of `24,82,500/-.
(2) It is a case of the complainant that in the year 1995, the builder approached to him and informed him about the housing project known as Gaurav Garden II which builder started at Mumbai. The complainant accordingly decided to purchase a flat in the said project. Statement of the complainant in his complaint in respect of series of transactions between the parties is as under :-
“ In 1995, the opposite party approached the complainant, and informed him about a project, styled as Gaurav Garden II they have started in Mumbai. Impressed by the representations made by the opposite party, the complainant decided to invest in the said project and agreed to purchase three flats from the opposite party, in the name of the complainant’s wife Siddiqua Haneef Cheena in a building called Gaurav Gunjan A. Unfortunately, the building did not materialize, and on 04/10/2000, the opposite party send a letter to the complainant’s wife informing him that the flats allotted in the said building were cancelled, and whatever amounts has been invested would be carried over to another building of the same project of the opposite party styled as Gaurav Jamuna……..
Again, the building Gaurav Jamuna was cancelled and again the opposite party issued letter of cancellation dated 07/08/2001, assuring the complainant that the amounts invested by him would now be carried over to a new building construction by name Gaurav Empire Shopping in the same project. The complainant was allotted 3 shop rooms in the said building……..
The Gaurav Empire Shopping Building also did not materialize. Fed up with the total apathy, the complainant met the opposite party and after talks, a fresh agreement was entered into between the complainant and the opposite party on 23/07/2002; wherein it was decided that the amounts now invested in the name of the complainant’s wife would be transferred into a new building to be floated by the opposite party styled as Gaurav Gagan within the Gaurav Garden II Project itself. The Agreement was also done in the complainant’s name…..”
(3) The agreement referred above is dated 23/07/2002. The agreed flat no. was 501 situated on 5th floor in a building known as Gaurav Gagan in the project Gaurav Garden II (‘GG II’ in short). It is further alleged by the complainant that while allotting the flat No.501, supra, `10,22,000/- which were paid by him in the name of his son to the builder were transferred as consideration in the said project. Further, an amount of `11,60,500/- was also paid by the complainant and which was duly acknowledged in the agreement dated 23/07/2002 (In fact, the agreement only acknowledges the consideration of `3,00,000/- as earnest amount paid earlier on 15/05/1995). In addition to the above payments `1,64,670/- were paid towards the stamp duty by the complainant at the behest of the builder on 17/07/2002. Thereafter, in April 2007, one Mr.Nimesh, a representative of the builder approached to the complainant at Trivendram, Kerala and informed the complainant that due to escalation in the prices of cement and other raw materials, two flats which were earlier offered bearing No.501 & 502 instead of original flat No. 501, the complainant would have to remit more amount of `5,14,000/- and `9,90,000/- respectively for flat No.501 and 502 and collected cheques for the said amount. Receipt dated 25/04/2007 was accordingly issued. The complainant paid in all consideration of `36,86,500/- towards the price of two flats viz. flat No.501 & 502 situated at 5th floor at Gaurav Gagan Building of Gaurav Garden II Project of the opposite party. However, in the month of January 2008, the complainant received 2 letters confirming the sale of flat No.501 & 502 and receiving full consideration thereof. The complainant was surprised on receipt of those letters. The complainant thereafter went to Mumbai and found that 24 floors’ tower as against sanctioned 7 floors was constructed by the builder contravening the approval given by the Municipal Corporation. The Municipal Corporation had issued notice for demolishing the unauthorized portion constructed of the said building over and above the seven floors. Seeing the prospects of getting possession of his flats looked clean, the complainant thereafter files this consumer complaint on 17/02/2011 claiming the following reliefs :-
“A. An order directing the opposite parties to hand over possession and ownership of Flat Nos.501 & 502 in the building by name Gaurav Gagan, constructed by the opposite party within 6 months of the date of filing of this consumer complaint.
Or
An order directing the opposite party to refund an amount of `74,33,768/- being the amount paid by the complainant with 15% interest p.a. from the date of each installment till date of complaint.
B. Allow future interest at the rate of 15% p.a. from date of complaint till payment of the amount by the opposite party.
C. An order directing the opposite parties to pay compensation of `25,00,000/- to the complainant for the unfair trade practice and deficiency of service, resulting in delay in construction and for the pain and mental agony undergone by the complainant consequent therewith.
D. Allow all costs of the consumer complaint.
E. Such other reliefs the such other reliefs the complainant may pray for and this Hon’ble Commission deems fit and proper, and in the interest of justice, in the facts and circumstances of the present consumer complaint.”
(4) It may not be out of place to mention here that initially this consumer complaint was file before the Kerala State Consumer Disputes Redressal Commission, Trivendrum. However, said complaint was returned on the ground of want of territorial jurisdiction as per order dated 14/12/2010 and thereafter the present consumer complaint is filed before this Commission.
(5) The opponent builder resisted this complaint filing its written version. It is submitted on its behalf that the complaint is not a consumer since it is his investment and the flats are purchased with a purpose of resale with commercial objectives to earn profit. It is further submitted on their behalf that they have received only `24,82,500/- in all from the complainant and out of which they have already refunded `43,000/- on 17/02/2007 to the complainant. The complainant has not disclosed all the true facts. They also deny that various changes of flats (and/or projects) as narrated by the complainant was not at their instance, but were effected since the complainant himself wanted to change the flats/shops to earn more profit from his investments from time to time. About the letters dated 18/01/2008, supra, it is submitted that those letters were issued as per the request of the complainant received on fax just to accommodate him for his accounts purpose. With this, they asked to dismiss the consumer complaint.
(6) By way of evidence, the complainant relied upon copies of the correspondence placed on record. He has filed a copy of agreement dated 23/07/2002 and also filed his own affidavits dated 14/04/2009 and 05/09/2012 as well as further relied upon his affidavit filed by way of verification of complaint on 18/02/2011. Opponent builder filed affidavit of its constituted attorney, Mr.K.R.Gupta who claimed his personal knowledge of the facts related to the transactions in question. The opponent also relied upon the bank statement duly notarized to establish the facts of refund of amount of consideration of `43,000/- on 17/02/2007 to the complainant.
(7) While recounting the facts, we prefer to reproduce the case presented by the complainant related to the transactions since from the year 1995 till the agreement dated 23/07/2002 was executed in his own words just for the sake of clarity. Initial investment of the amount was made in 3 flats (in the name of his wife by the complainant) which as clarified by the builder were not situated at one place, but at different places in Mumbai and Thane district. Thereafter, as per the request of the opponent, on 04/10/2002, earlier bookings were cancelled and amount invested was carried over for Gaurav Jamuma and thereafter again to shopping complex for three shops situated in Gaurav Empire. Had this not been investment, complainant would not have agreed to get transferred his invested funds from residential complex to a commercial complex of three shops. This corroborates the case of the builder that right from beginning, the complainant had in mind to invest into the project to earn profit for resale or otherwise.
(8) It is a case of the complainant, as further narrated, is that after booking of three flats in Gaurav Empire and after it was cancelled a further agreement which is subject matter of this dispute, dated 23/07/2002 came to be executed that to in his name rather than in the name of his wife. He also stated in the complaint that `10,22,000/- already paid by him in the name of his son were shown as consideration paid to the flat agreed to be purchased as witnessed by the agreement dated 23/07/2002. The agreement, as earlier recounted, does not acknowledge his payment but only acknowledged `3,00,000/-. `21,82,500/- were payable at the time of execution of agreement, but it is never shown as paid or received since the acknowledgment attached to the agreement is for `3,00,000/- only, supra. These events have cumulative effect to corroborate to the case of the builder that right from the beginning firstly in the name of wife and then in the name of his son and then in his own name the complainant invested in the project carried out by the builder with a view to earn profit through resale. Same funds are just rotated from one project to another project, either residential or commercial. Thus, it is a commercial purpose for which the investment is made by the complainant and hence, the services hired by the complainant of the builder are for commercial purpose and, therefore, the complainant is not a consumer within the meaning of Consumer Protection Act, 1986 (‘The Act’ for brevity).
(10) Though the complainant claimed having paid in all amount of `36,85,000/-, he failed to substantiate the same. Opponent builder admitted having received `25,26,100/- from the complainant from time to time by way of investment and out of which according to the builder, he has refunded an amount of `43,000/- to the complainant on 17/07/2007. This refund story finds corroboration by the back statement. The complainant did not offer any explanation to this transaction and, therefore, we are inclined to accept the statement of the builder in this respect.
(11) The builder has already offered explanation in respect of his two letters dated 18/01/2008 in respect of flat Nos.501 & 502 and acknowledging receipt of full consideration. According to the builder, the complainant made a request and responding to valued relationship with the complainant, these letters were issued just for the purpose of complainant’s account. Considering totality of the circumstances, there is not reason to disbelieve these statements of the builder.
(12) For the reasons stated above, since the complainant is not a consumer, we find the consumer complaint deserves to be dismissed. We hold accordingly and pass the following order.
ORDER
(1) Consumer complaint stands dismissed.
(2) In the given circumstances, both the parties to bear their own costs.
Pronounced on 30th October, 2012.
