BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    20^th DAY OF JUNE 2019

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against Opposite Parties (herein after called as OPs) to refund a sum of Rs.85,000/- with interest @ 24% p.a, to pay a compensation of Rs.10,00,000/- for deficiency in service and damages caused and such other reliefs.

2.      The case of the complainant to be stated in brief is that:

OP-1 is a Company registered under the Indian Companies Act and having head office as shown in the cause title.  OP-2 is the Managing Director of OP-1.  Complainant submitted that he wanted to invest his hard earned money in housing property in order to secure the future states he met the representative of OPs by name Prabhu Kumar and H.K Ramesh in Bangalore at their registered office where they told him of the scheme of allotment of a free site on purchase of a site for a valuable consideration.  This offer appears to have been made by the OP to attract gullible persons.  That OP-1 issued an allotment letter on 24.02.2002 towards the property bearing site No.20, khatha No.152/1, situated at Daddathogur Village, Begur Hobli, Bangalore South Taluk, for a total sale consideration of Rs.3,60,000/-, measuring East to West 40 feet, North to South 30 feet, in total 1200.  That on paying for the above said site, OPs issued another allotment letter stating that another free plot measuring 1200 square feet has been allotted, vide allotment letter dated 24.02.2002.  The plot which is allotted as free allotment is not numbered.  That after he paid the entire sale consideration to the OP-1, OP-2 executed registered sale deed in favour of complainant on 26.10.2002.  That when he inquired about the registration of free site allotted to him, he was told repeatedly that there was some legal issue with the Government of Tamil Nadu and on clearance the free plot would be registered on his name.  This went on for about 3-4 years.  Finally, he was enticed by the OPs to purchase another plot/site of equal dimension.  Then OP-2 would register both the plots/sites placed adjacent to each other.  Out of compulsive agreement and realizing the gravity of the situation the complainant agreed to buy another plot at the site of free plot for a consideration and consequently OP-1 issued another allotment letter dated 30.01.2006 asking for a sale consideration of Rs.1,00,000/-.  Believing the words of OPs, complainant paid Rs.10,000/- on 30.01.2006 and thereafter another sum of Rs.75,000/- on 10.04.2006 and balance he agreed to pay at the time of registration of second plot and the agreed and promised free plot.

Complainant further submits that as Defence personnel he was working outside Bangalore.  In spite of this complainant also tried to contact the OP by phone, letters and emails but the OPs kept dragging the issue of registering the plots on one pretext or the other.  They refused and at the same time never executed the said registration of plots.  After that they stopped taking the phone calls of the complainant.  Somewhere in July-August 2013 Mr.K.B Pathy refused to register the plots and dared the complainant to do whatever he wanted.  Complainant even though posted in Uttar Pradesh, came down twice to Bangalore, handed over the letter dated 24.11.2007 and 17.09.2012 to OPs, showed his willingness to pay the balance amount of Rs.15,000/ so that second and free plot could be registered.  That being an innocent person, believed the words of OPs.  That all the letter addressed to them and email sent to OPs have been received by them.  After having received a sum of Rs.85,000/- the OPs are deliberately and intentionally avoiding to register the property in the name of complainant.  That when he smelt a foul play being played by the OPs, he was left with no other alternative but issuing the legal notice dated 07.10.2013 to which the OPs have failed to reply.  Again complainant has issued legal notice dated 22.11.2013 to OPs through advocate, which has been returned with an endorsement as “not claimed”.  OP has given untenable reply.

Further complainant submits that the OPs being a private limited company and director respectively have deliberately involved in cheating and with malafide intentions and ulterior motive made fast money in the above transaction.  The very intention of the OPs after analyzing the whole situation appears to be to make fast money by giving false assurance to the innocent gullible customers.  Complainant has invested his hard earned government salary to realize his only dream of having a plot of his own during his life time for securing his future and that of his children has been smashed and bombarded by the OPs with their act of deliberate negligence causing treachery, cheating and fraud which has caused irreparable damage, loss of reputation and agony to the complainant.  OPs have deliberately and intentionally duped the complainant made him invest his hard earned money making him believe that they would provide him two plots.  OPs have committed deficiency of service in keeping up with their scheme and agreement.  Hence this complaint.       

3.      After issuance of notice, OPs did appear and filed version.  The sum and substance of the version are as under:

The OP has denied the allegations of the complainant.  The main contention taken by the OPs is that, the complaint filed by the complainant is hopelessly barred by time.  Since the alleged claim is after long lapse of 12 years and further there is no any proposal in respect of allotment of the free site.  Further submits that, OPs have not signed any allotment letters promising to give plot for lesser price or free price.  The alleged amount of Rs.85,000/- is the due amount relating to transfer of khatha and curtained development works in site No.20 given by the OP, subsequently the complainant has sold by making huge benefits.  Further there is no balance of Rs.15,000/- from the complainant.  It is also specifically contended that after 2006 the OPs have not seen the complainant and there is no kind of communication and complainant has not given any letter dated 24.11.2007 and 17.11.2012.  Further the OP has not authorized Mr.H.K Ramesh or Mr.Prbhu Kumar either to collect money or to do anything.  Further submits that, the alleged free site is not comes within the scope of service of OP.  Further contended that, there is no relationship of consumer and service provider in respect of the alleged free site.  Hence this Forum has no jurisdiction to decide the aspects relating to the alleged free sites, which are not available for the complainant.  Further the entire said Doddatugur project was completed and closed during 2006-07 and there is nothing remains in the said project and no lands are available in the project.  Hence on these grounds and other grounds OPs prays for dismissal of the complaint.

4. To substantiate the allegations made in the complaint the complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  On behalf of OPs K.Boopathy, Managing Director, submitted evidence by way of affidavit.  Complainant produced certain documents.  Both parties submitted their written arguments.  We have also heard oral arguments.

5. The points that arise for our consideration are:

        6. Our answer to the above points are as under:

REASONS

7. Point No.1  The OPs have rightly pointed out that the site No.20 registered in the name of the complainant has been already sold by making huge profit.  This fact is not denied by the complainant.  The specific allegations of the complainant is that, at the time of purchasing of the site No.20 there was an offer for the free site.  Thereafter OP turned down the same and given another proposal to purchase the another site of the same dimension for the lesser price i.e., for Rs.1,00,000/- then they are ready to register the free site also.  So the OP has not only booked the site No.20, he has also paid advance amount for another site in addition to the free site also, which is nothing but for the commercial purpose.  In this context we directly placed reliance on the e-mail correspondence dated January 13, 2009 marked at Ex.P.8 written by the complainant to the OP which reads thus:

Rajesh Nagar<

To:pathyhousing@gmail.com

Dear Mr.Pathy!!

1. Please refer our telephonic conversation of 13 Jan 2009 in connection with registration of two plots at New Bangalore Village.

2. The above two plots comprise of a free plot measuring 30x40 sq. feet, which came along with the package of buying plot number: 20 in New Bangalore Electronic Town Phase-I (Near Niladhri Park), and plot measuring 30x40 for which Rs.85,000/- has already been paid by me in Account No.NDC/NEW/NBV-782 through cheque and cash.

3. My coming is essential, firstly to see which two plots are being allotted for registration and secondly to put my signature on the registration papers and be physically present before registrar.

4. What is the market rate and what is the government circle rate for the land out there?  The registration fee would be paid on the government circle rate, is it not? and what are charges for the registration?  Could you give the rough breakdown of Rs.20,000/= per plot registration as advised by you on telephone.

5. Could you give me rough idea of your availability in Bangalore.  It should happen that I come to Bangalore and you are out of town.

          Your quick response to my this mail would be quite helpful in planning and arranging for finances.

Thank you

   Wing Commander

       Rajesh Nagar.

          8. If the contents of the Ex.P.8 are taken into consideration booking of two plots for which one plot is free.  Free plot is not come within the purview of this Forum.  More over the booking of two plots is clearly indicates for the purpose of commercial purpose.  The said claim is not comes within the purview of this Forum.  In support of this we placed reliance on the following decisions:

1. IV (2013) CPJ 221(NC) in the case of Sanjay Bansal vs. Vipul ltd., & anr., 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.

2. III (2012) CPJ 315 (NC), in the case of Chilukuri Adarsh vs. ESS 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.

3) 2018 (1) CPR 244 (NC) in the case of Shweta Sharma vs. M/s.BPTP ltd., wherein at para 4 held as under:

    4. The State Commission vide its order dtd.07.04.17 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 shop 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 ltd., Vs. M/s.Chandan Traders and Ors., decided on 19.02.15 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 shop 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 09.10.15, Pradeep Singh Pahal vs. TDI Infrastructure Pvt. ltd., 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.

9. Hence in the light of the decisions cited supra, we come to the conclusion that, the complaint filed by the complainant is not maintainable before this Forum.  Complainant is not come within the purview of section 2(1)(d) of the C.P Act.  Anyhow an option is left open to the complainant to approach the competent court of law having got jurisdiction to try the same.  Accordingly we answered the point No.1 in the negative.

10. Point No.2:-  In view of our findings on point No.1 this issue does not survive for consideration.

          11. Point No.3: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainant is dismissed.  Anyhow an option is left open to the complainant to approach the competent court of law having got jurisdiction to try the same.  Both parties to bear their own costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 20^th day of June 2019)

MEMBER                                                            PRESIDENT

Vln*

Witnesses examined on behalf of the complainant dated 18.12.2014.

Sqn.Ldr. Rajesh Kumar Nagar.

Documents produced by the complainant:

  Witnesses examined on behalf of the Opposite parties
  dated 09.04.2015. 

                Sri.K.Boopathy.  

Documents produced by Opposite Party – Nil.

MEMBER                                                             PRESIDENT

Vln*