Delhi

New Delhi

CC/790/2011

A.K. Baweja - Complainant(s)

Versus

M/S. BPTP Ltd. - Opp.Party(s)

29 Nov 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.790/2011  

IN THE MATTER OF:

 

Mrs. A.K. Baweja

W/o Sh. H.S. Baweja

R/o H-2/10, Vikas Puri,

New Delhi-18                                                                ...COMPLAINANT

 

VERSUS

 

 

BPTP Limited

Having its Registered Office

M-11, Middle Circle,

Connaught Circus,

New Delhi-110001

Through its Director                                                        ...OPPOSITE PARTY

 

Quorum:

 

Ms. Poonam Chaudhry, President

Shri Bariq Ahmad, Member

                                                                                                                         Date of Institution:-         26.07.2011                                                                                                                                                                    Date of Order   : - 29.11.2022

ORDER

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (in short CP Act) alleging deficiency in services by the Opposite Party (in short OP).  Briefly stated the facts of the case are that the Opposite party is a private limited company incorporated under Companies Act. The opposite party has been carrying on the business of construction/developing of various integrated townships and commercial complexes, etc.
2. It is further alleged that the complainant, being lured by the advertisement given by the opposite party, booked a flat in its project i.e. Park Elite Premium, Parklands, Section -85, Faridabad, (Type 3 BHK- Unit Area 906 sq. ft.), for a sum of Rs. 17.98 Lakh plus other charges.
3. It is also alleged that the complainant paid the booking amount of Rs. 2,00,000/- (Rupees Two Lakh) vide Receipt No. 2009/1400012184 dated 06.07.2009. The complainant was provided with Customer Code : 121338.
4. It is also stated that the complainant opted for the Construction Linked Payment Plan and made the payment of first installment of Rs. 2,11,405/- (Rupees Two Lakh Eleven Thousand Four Hundred Five) vide receipt No. 2009/1400024252 dated 05.10.2009 demanded by the opposite party vide its letter dated 19.09.2009.
5. It is also averned that the opposite party was under obligation to intimate the complainant regarding the status of construction of the flats. But it neither bothered to intimate the complainant regarding the construction of the flats nor any demand was made by the opposite party for further payments.
6. It is also alleged the complainant has paid a sum of Rs. 4,11,405/- (Rupees Four Lakh Eleven Thousand Four Hundred Five) to the opposite party, till 05.10.2009.
7. It is further alleged the complainant came to know that the opposite party had already allotted the flats to other applicants but till date the complainant has neither been sent any demand letter nor has received any information about the allotment of the flat.
8. The complainant made several requests to the opposite party to find out regarding the status of construction of the flat in question and status of the balance installments but the opposite party did not give any heed to the requests of the complainant.
9. The complainant thereafter sent a legal demand notice dated 11.04.2011 through her counsel to OP. The notice was duly served upon the opposite party but the opposite party failed to comply with the same.
10. It is also alleged that complainant suffered the loss and damages on account of deficient services and unfair and restrictive trade practices of opposite party. It is stated the cost of the property has increased manifold, since the day of the booking of the said flat. The complainant is not in a position to purchase the property at the prevalent rates. It is alleged the balance of convenience lies in favour of the complainant and against the OP because as per the assurances made by the OP the complainant had parted with her hard earned money with the sole intention to purchase a flat for her residence.
11. It is prayed that OP be directed to allot the flat to complainant in the project Park Elite Premium, Parklands, Sector-85, Faridabad, (Type 3BHK-Unit Area 906 sq. ft.), subject to payment of the balance consideration amount/dues. The opposite party also be directed to provide the details of the payments due. A sum of Rs. 1,00,000/- (Rupees One Lakh) be awarded as compensation for agony suffered by the complainant and a sum of Rs. 20,000/- (Rupees Twenty Thousand) may be awarded as costs of the litigation.
12. Notice of the complaint was issued to OP. OP entered appearance and filed written statement contesting the complaint on various grounds alleging inter alia that there was no cause of action. It was also alleged that there was no deficiency of service on part of OP. It was also alleged that complaint was bad for non-joinder of parties as broker was not arrayed as a party. It was stated the complainant paid Rs.2,11,405/- (Rupees Two Lakh Eleven Thousand Four Hundred Five) on 05.10.2009. However, it was denied that the said payment was in accordance with the demand letter dated 19.09.2009/ payment plan opted by complainant. It was further stated that despite receipt of the demand letter dated 19.09.09, wherein it was categorically intimated that as per the payment plan, complainant was required to pay Rs.2,22531/- (Rupees Two Lakh Twenty Two Thousand Five Hundred Thirty One) i.e. 25% of the total price with 90 days of booking in order to avail timely payment discount of Rs. 11,127/- (Rupees Eleven Thousand One Hundred Twenty Seven). the payment of Rs. 2,11,405/- (Rupees Two Lakh Eleven Thousand Four Hundred Four) was to be made on 05.10.09, i.e., after the due date and complaint illegally deducted Rs.11,127/- (Rupees Eleven Thousand One Hundred Twenty Seven) on account of timely payment discount.
13. It was also alleged that due for non-payment within the stipulated time period, the Complainant was not considered eligible for allotment and consequently, the booking stood terminated in terms of the conditions of the Application for allotment and the earnest money was liable to be forfeited. The OP was thus under no obligation to make the allotment and there was also no occasion for OP to send intimation of the construction status or any further payment schedule as alleged.
14.  It was also alleged that the Complainant paid a total sum of Rs.4,11,405/- (Rupees Four Lakh Eleven Thousand Four Hundred Five) to the Opposite Party. The complainant was not considered eligible for allotment and as the booking stood terminated, the earnest money was liable to be forfeited in terms of the agreed upon conditions due to delayed payment. The receipt of legal notice was admitted. It was prayed that complaint be dismissed.
15.  During the pendency of the complaint an application moved by OP for dismissal of the complaint on the ground that it was not maintainable as complainant is not a consumer. The application was heard along with the final arguments and is being decided vide this order. The averments made in the application are that the opposite party alleged in its written statement regarding of non-maintainability complaint on the said ground. It was also alleged that the complainant is a “prospective Investor” only and not a Consumer as defined in Section 2(1)(d) of the Consumer Protection Act, 1986, since no unit had been allotted to him. The complainant had neither purchased any goods from the opposite party nor hired or availed any service from the opposite party, for any consideration. It was also alleged that the definition of consumer also specifically excludes a person who obtains any good or service for the purpose of resale or for a commercial purpose from the category of ‘Consumer’. It was alleged that son of complainant had also booked a unit in the same project. These bookings were made for earing profit/investment.
16. It was contented that as far as a person who applied for allotment of a plot/flat is concerned, he will not be a ‘consumer’ within the meaning of Section 2(1)(d) of the Act, if neither any allotment is made to her nor he is registered for and awaiting such an allotment. such a person cannot be said to have hired or availed the services of the concerned development authority in connection with housing. Mere submission of an application for allotment, which does not result either in allotment or registration and consequent inclusion in the awaiting list for such an allotment, does not confer upon him the status of a ‘consumer’ as defined under Section 2(1)(d) of the said Act.
17.  We have heard the Ld. counsels for parties and perused the record.
18. It is to be noted that as regards the question whether a person will be a consumer within the meaning of Consumer Protection Act if no allotment had been made in this favour Hon’ble Supreme Court has held in case titled Morgan Stanley Mutual Fund Vs. Kartrick Das, reported in (1994)(4) SCC 255 as under:

“ Therefore, it is after allotment, rights may arises as per the contract (Article of Association of Company). But certainly not before allotment. At that stage, he is only a prospective investor (sic in) future goods. The issue was yet to open on 27.04.1993. There is not purchase or goods for a consideration, nor again could he be called the hirer of the services of the company for a consideration. In order to satisfy the requirement of above definition of consumer, it is clear that there must be a transaction of buying goods for a consideration under clauses 2(1)(d)(i) of the said Act. The definition contemplates the pre-existence of a completed transaction of a sale and purchase. If regard is had to the definition of the complaint under the Act, it will be clear that no prospective investor could fall under the Act”.

19. It is to be noted that the complainant had alleged that no unit was allotted to him. In the light of the judgment of Hon’ble Supreme Court and the legal position discussed above, we hold that since no allotment was made in favour the complainant he did not hire the services of OP, and was not a consumer, as an application for allotment only gives the proposed allottee a right to be considered. Thus till allotment of flat the complainant had not become a consumer.
20.  For the foregoing reasons, the complaint stands dismissed with liberty to the complainant to approach the competent Court in accordance with law. The application stands disposed off.

No order as to costs.

A copy of order be sent to the parties free of cost as statutorily required. The order be uploaded on www.confonet.in.

File be consigned to record room with acopy of this order.

 

 

(POONAM CHAUDHRY)

                                                     President

 

(BARIQ AHMAD)

 Member