CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO. CC/70/15

                                                                                                                              Date of Institution:-26.08.2015

                                                                                                                              Order reserved on:-09.05.2023

                                                                                                                                  Date of Decision:-19.05.2023

IN THE MATTER OF:

Arvind Dabas

S/o Sh. Narain Singh Dabas

R/o F-63, Kamla Nagar,

Delhi – 110007                                                               .......Complainant

VERSUS

   Adel Landmarks Ltd.

  Head Office:

  B-24, Sector-3,

Noida – 201301

And registered office at:

B-39, Ground Floor,

Friends Colony (West),

New Delhi – 110065                                                 .…..Opposite parties

O R D E R

Per Dr. Harshali Kaur, Member

1. The Complainant approached the O.P., who is engaged in the business of construction of flats and paid a total sum of Rs.6,83,700/- to the O.P. for the allotment of a flat in Sector-86, Gurgaon, Haryana. The Complainant had purchased this unit from the original buyer at a premium and transfer was duly authorised by the O.P. after charging the transfer fee and other charges.

2. The O.P. sent a letter dated 12.10.2012 towards advance registration no. GGN/86/240 with subject to the start of the allotment process. The Complainant has annexed the copy of the aforementioned letter dated 12.10.2012 as Annexure-C-1. The O.P. also demanded an additional sum of Rs.1,53,282/- in the said letter.

3. The Complainant alleges that when he approached the O.P.'s office to deposit the amount as demanded by them the O.P. refused to accept the same despite repeated requests. The Complainant was shocked to receive a letter dated 16.09.2014 wherein the O.P. refused to hold the Complainant's investment for future allotment, promising to return the Complainant's paid amount with due interest.

4. Not interested in receiving the refund of his invested amount, the Complainant requested the O.P. to adjust the amount paid by him for future allotment of the flat in Sector-86, Gurgaon, as mentioned by him in his complaint. But the O.P. refused and instead allegedly began allocation based on a "first come, first serve" basis, which was not mentioned in the Brochure.

5. Therefore, claiming deficiency-in-service on the part of the O.P., the Complainant filed the present complaint U/S 12 of Consumer Protection Act, 1986, praying for adjustment of his amount of Rs.6,83,700/- towards future allotment, Rs.1,00,000/- towards compensation and Rs.20,000/- towards litigation charges.

6. Notice was issued to the O.P. to file his reply. On 11.03.2016, the O.P. filed an application to furnish the new name and address of the O.P. seeking amendment of the O.P. name from ERA Landmarks Ltd. to ADEL Landmarks Ltd. Notice was issued to the O.P. at the new address.

7. Ld. Counsel Sh. Pramod K. Tiwari appeared for the O.P. and filed his memo of appearance on record. He also received a copy of the complaint from the Forum on 16.09.2019. However, despite imposing the cost of Rs.2,000/- vide order dated 28.10.2016 and Rs.5,000/- vide order dated 14.12.2016 when the O.P. neither appeared before this Forum nor filed their reply subject to cost, the defence of the O.P. was closed vide order dated 10.03.2017.

8. Thereafter, the Complainant filed his ex-parte evidence and written arguments to support his allegations as made in his complaint swearing on oath what he had stated in his complaint.

9. Though the testimony of the Complainant is unrebutted and remains uncontroverted in light of the defence of the O.P. being struck off, a bare perusal of the complaint shows that the Complainant has himself repeatedly mentioned that he had invested the consideration amount paid by him to the O.P. which he did not want to get refunded but instead requested that his amount be adjusted in any future or alternate in the same sector projects as clarified in the email sent to the O.P. on 30.10.2014. A copy of the email sent to the O.P. is on page no.11. He has also prayed the same in his complaint.

10. This very fact clarifies that the Complainant is an investor who paid money to the O.P.s for future gains and therefore does not fall within the definition of a 'Consumer' as defined in the Consumer Protection Act, 2019 under section 7 (i) (ii) as under:-

(7) "consumer" means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

The question of whether investors are "Consumers" as defined under the Act or not is dealt with by the Hon'ble Apex court and the Hon'ble National Commission, in a catena of judgements, and has settled the law on this issue by holding concretely that the Investors in such schemes are not consumers. In this regard, we may refer to the following decisions of the Hon'ble Supreme Court and the Hon'ble National Commission.

1. Morgan Stanley Mutual Fund vs Dr. Arvind Gupta (1994) 4 SCC 225, in which the Hon'ble Supreme Court held that a prospective investor is not a Consumer to prefer a complaint under the Consumer Protection Act, 1986.
2. M/s Monstera Estate Pvt. Ltd vs Ardee Infrastructure Pvt. Ltd. IV (2010) CPJ Page 299 (N.C.)
3. Vijay Kumar vs M/s Vikson Finance and Investment Pvt. Ltd. & ANR. decided by Hon'ble NCDRC on 07.10.2015.

11. The case before us for adjudication of the present complaint is identical to the facts in the case of Jayantilal Trikambhai Brahambhatt vs Abhinav Gold International Marketing Pvt. Ltd. 2012 (4) CPR 37 (N.C.) decided by the Hon'ble National Consumer Dispute Redressal Commission on 19.09.2019, whereby the same question that we are facing as to whether the Complainant therein were consumers or not and whether their intent was to earn multiple/huge profits or to earn their livelihood. The Hon'ble National Commission relying upon the judgments referred to by us above, held that-

"Complainants and the persons who are seeking relief through them are not the consumers, and hence the complaint before them was not maintainable."

12. In light of the settled law mentioned above, we dismiss this complaint without cost but with the liberty to file the same in the competent Forum.

• Copy of the order is to be given as dasti.
• The file be consigned to the record room thereafter.