Delhi

StateCommission

CC/09/346

DEBIKAY INVESTMENTS PVT. LTD. - Complainant(s)

Versus

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

23 Nov 2017

ORDER

N THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :23.11.2017

Date of Decision :07.12.2017

Complaint No.346/2009

IN THE MATTER OF:

 

 M/s. Debikay Investment Pvt. Ltd.,

Plot No. 10/2, Phase-II,

114 A Sanik Form,

Central Avenue,

New Delhi-110062.                         `                                                           ……Complainant

                                                                        Versus

M/s. BPTP Ltd.,

Regd. Office :-

M-11, Middle Circle,

Connaught Circus,

New Delhi-110001.                                                                                     …..Respondent

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                    Yes

2.      To be referred to the reporter or not?                                                                     Yes

 

Present:           Shri  Rahul Dubey, Counsel for the complainant.

                        Shri Prayag Pradeep Sharma, counsel for the respondent.

 

PER  : SHRI ANIL SRIVASTAVA, MEMBER

          Short question for adjudication in this complaint filed under Section 17 of the Consumer Protection Act 1986 (Act) by M/s. Debikay Investment Private Ltd., for short complainant, against M/s. BPTP Ltd., hereinafter referred to as OPs, alleging deficiency of service as well as unfair trade practice against the OPs, on the ground that they have unilaterally changed the plot allotted to them despite the preferential  charges having been paid, is, whether the complainant is entitled for the relief as claimed particularly when  apparently the complainant does not appear to be a consumer as defined under Section 2(i) (d) & (ii) of the Act. The relief claimed are as under:-

a.      An order directing the respondent to restore the allotment of plot no. A 10-2, Parklands, Faridabad with preferential location to the complainant or any other alternate plot of the choice of the complainant having identical or similar preferential location;

b.      An order of  a decree directing the respondent to pay a sum of Rs,25,00,000 on account of compensation towards deficiency in service and unfair trade practice;

c.      An order for an additional sum of Rs.1,00,000/- towards cost of litigation be awarded to the complainant;

d.      Such  other/ further orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances of this case.

 

          Facts of the case necessary for the adjudication of the complaint are these.

          On 24.07.2017 the complainant and the OP entered into a plot buyers agreement and in furtherance thereto a plot bearing number Block `A’ 10, Phase-II having an area of approximately 209 sq mtr (250 sq yrd) situated at PARKLANDS Faridabad was allotted to the complainant, which is stated to be a preferential location for which the complainant has paid extra amount of Rs.1,06,250/-. Total consideration for the plot is Rs.21,25,000/-

The OP by way of their letter dated 16.10.2008 intimated, inter alia, that the plot allotted to him has been changed to G7-06 in the said project. This has come as a shock and surprise to the complainant since he had never opted for the change. Moreover he had already paid preferential charges in respect of the said plot allotted earlier namely, A10. The complainant took up the matter with the OP for making correction and for restoring him the plot allotted to him earlier but all his efforts done in this behalf proved an exercise in futility inasmuch as the OP did not pay any heed to his appeal for restoration of the plot. Consequently, a complaint was filed before this Commission for the redressal of his grievances.

OPs were noticed and in response thereto they have filed their written statement stating inter alia, that the complaint is  erroneous and misconceived and this Commission lacks both, territorial jurisdiction for the reason that cause of action in the matter arose at Faridabad in which case the Consumer Fora at Haryana  alone will have competence to hear and dispose of case, and secondly, pecuniary jurisdiction for the reason that the amount claimed is only Rs.1,06,250/- in which case the jurisdiction lies with the Distt. Fora

We are not impressed with the submission made since, relying on Section 17 (2) of the Consumer Protection Act 1986 which says that the Fora where the cause of action arose OR where the OP resides, enjoys the territorial jurisdiction. The objection of the OP regarding territorial jurisdiction is not sustainable since the cause of action in the given case arose at Delhi. Secondly in view of thee decision of the Hon’ble NCDRC in the matter of Ambrish Kumar Shukla vs. Ferrous Infrastructure passed in CC 97/2016 decided on 07.10.2016 it has been ruled that the total consideration involved is to be computed for arriving at a conclusion regarding pecuniary jurisdiction. Applying the ratio of that judgement in the subject matter this Commission enjoys the pecuniary jurisdiction since the total consideration in the given case is beyond Rs.20 lakhs.

The OP has also raised an objection that the complaint has been filed without exhausting the remedies available to the complainant under the Arbitration Act. This objection is also not sustainable in view of the orders passed by the Hon’ble NCDRC  on 13.07.2017 in the matter of Aftab Singh vs  Emaar  MFG Land Limited and Anr in CC 701/2015 holding that an arbitration  clause in the agreement between the complainants and the Builder cannot circumscribe the jurisdiction of the Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

The next objection of the OP is that it was made clear to the complainant that the allotment of the plot is subject to availability. Besides the complainant had furnished an undertaking at the time of booking  agreeing  to accept any plot in the event of change of any lay out plan, as is the case.        

Both the parties  have also filed their evidence maintaining their stand. The matter was listed before us for final hearing on 23.11.2017 when counsel from both sides appeared and advanced their arguments. We have perused the records of the case.

The ld. Counsel  for the respondents during the course of the arguments raised an objection that the complainant is not a consumer within the meaning of Section 2(i)(d) of the Consumer Protection Act,  plot of land having been purchased for the residence of the Directions of the company and not for self use and thus not entitled to raise a Consumer dispute under the act.

In support of their averment the ld. Counsel for the OP has drawn our attention to the law laid down by the Hon’ble Apex Court.

The Hon’ble Supreme Court of India in  the matter of Laxmi Engineering Works vs. PSG Industrial Institute as reported in (1995) 3 SCC 583, has dealt with at great length the question as to who would be “consumer” within the  definition of Section 2(1)(d)(i) and (ii)  of the Consumer protection Act, 1986. The Hon’ble Apex Court  in the above judgement, concluded that every purchaser of goods on services cannot per se become consumer. The determination of the fact as to whether a purchaser of goods or services is a consumer within the meaning of Section 2 (1)(d) of the Act or not, depends on the real purpose for which transaction was made.

Thus, as per the principles of law  laid down by the Hon’ble Supreme Court, the question as to whether a purchaser would come within the scope of the definition of consumer under Section 2(1)(d)(i)  & (ii) would solely depend upon the purpose for which the goods  or services are purchased. As submitted supra, in the present case, it is quite obvious that the purchase of plots by the complainant is for the purpose of residence of its directors/ employees through whom the complainant seeks to run the business. Therefore, the purpose of purchase of plot is solely to run their business through its Directors/ employees  and not for enabling livelihood of any person(s), Consequently, the complaint in the present  case is not maintainable before this Hon’ble State Commission since the complainant is not a consumer.

In this regard the OP has also placed reliance on the judgement of the Hon’ble National Consumer Disputes Redressal Commission (NCDRC) dated 05 July, 2012 in the case of M/s. Purusharath Builders Pvt. Ltd. vs. M/s. Uppal Housing Ltd. & Anr. In CC NO.112 of 2012, holding that flats for officers of company amounts to flats for commercial purpose.

For arriving at the above conclusion, the Hon’ble NCDRC relied on a number  of decisions namely,

(a)     Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. IV (2010) CPJ 299 (NC)

(b)     Shika Birla vs. DLF Retailers Developers Ltd. – CC No.183 of 2012 – In this case, Hon’ble Supreme Court upheld the order of the National Commission in Civil Appeal No.5458 of 2013.

(c )    Satish Kumar Gajanand Gupta vs. M/s. Srushti Sangam Enterprises (India) Ltd. & Anr in CC No.296 of 2011 decided by National Commission on 30.07.2012 – In this case also, the Hon’ble Supreme Court upheld the decision of the National Commission on 14.09.2012 in Civil Appeal 6229 of 2012.

The Hon’ble NCDRC in their judgement passed in CC 250/12 on 01.10.2012 in the matter of Singhal Finstock vs. Jaypee Infra Tech has held as under:-

“Company cannot book  residential flat for the residence of its directors”.

The complainant on the other hand has taken the objection that the objection raised by the OP regarding the factum about their being consumer or not cannot be raised after filing of the written statement. We are not impressed with this submission as this is a legal proposition. Legal plea can be taken at any stage of the proceedings. In this regard the judgement of the Hon’ble  Supreme Court in the case of Jagmittera Sain Bhagat vs. Director  of Health Services, Haryana & Ord – MANU/SC/703/2013 holding as under, is referred to:-

“Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative  function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes a decree  having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings.

          The aforementioned judgements  leads to  an inevitable and inescable conclusion that the objection to this effect, the objection being a legal submission could have been taken even at the argument stage.

Having regard to the fact that the complainant company is not a consumer, as concluded above by the law settled by the Hon’ble Apex Court and Hon’ble NCDRC, we order that the complainant is not entitled to raise a consumer dispute and accordingly we dismiss the complaint, leaving the parties to bear their cost.

Ordered accordingly.

          Copy of the order may be forwarded to the parties to the case free of cost as statutorily required.

File be consigned to records.

 

(ANIL SRIVASTAVA)                                                            (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)