DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

B.R. Chauhan s/o late Sh. M.R. Chauhan r/o H.No.3061, Sector 38-D, Chandigarh.

                                                                                    ---Complainant.

Versus

1.                  Omaxe Chandigarh Extn. through authorised signatory, Regional Office : SCO 143-144, Sector 8-C, Chandigarh.

2.                  Head office of Omaxe, 10, LSC, Kalkaji, New Delhi 110019.

---Opposite Parties.

BEFORE:    SHRI LAKSHMAN SHARMA                              PRESIDENT

                   SMT. MADHU MUTNEJA                          MEMBER

                   SHRI JASWINDER SINGH SIDHU           MEMBER

Argued by: Complainant in person.

                        Sh. Munish Gupta, Adv. for the OPs.

PER LAKSHMAN SHARMA, PRESIDENT

1.                              Sh. B.R. Chauhan has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following relief against the opposite parties:

i)                   to restore the plot No.168 to the complainant and pay Rs.3,00,000/- as compensation;

OR

ii)                 to pay a total sum of Rs.19,96,750/- as compensation for negligence.

2.                              In brief, the case of the complainant is that he purchased plot No.168 from the opposite parties vide receipt dated 24.7.2010 and paid a sum of Rs.4,22,000/-.  According to the complainant, thereafter the opposite parties sent an undated allotment letter after the expiry of 45 days.   However, as per the payment plan schedule, the balance amount was to be deposited in 45 days after allotment.  It has been pleaded that the complainant went to opposite party No.1 on 9/10.9.2010 and requested that he should be given 45 days time for deposit of the balance amount as the allotment letter was undated.   According to the complainant, Mr. Amardeep Singh GM of the opposite parties admitted the mistake and told the complainant that he can deposit the amount upto 10.10.2010.  However, subsequently, the opposite parties unilaterally cancelled the complainant’s allotment before the expiry of 10.10.2010 vide letter dated 8.10.2010 without sending him any letter/notice.  Finally the complainant sent a legal notice to the opposite parties on 15.11.2010 but no reply was received to the same.

                        In these circumstances the present complaint has been filed seeking the reliefs mentioned above.

3.                              The Opposite parties in their written reply by way of affidavit of Sh. Harsh Bhargav, its authorised representative, at the outset took preliminary objection that the complainant has concealed material facts from this Hon’ble Forum because he had entered into an agreement to sell the disputed plot to one Kuldip Singh Virk r/o H.No.542/10-A, Ghuman Nagar, Patiala and had received Rs.1.00 lac vide cheque dated 3.10.2010 from him. 

                        On merits, the allotment of the plot in question to the complainant is not disputed.  However, it has been denied that the allotment letter sent to the complainant was undated or that he was given time till 10.10.2010 for making the payment.  It has been averred that the opposite parties sent various letters/reminders to the complainant but still he did not make the payment.  It has been pleaded that as the complainant failed to make the payment within 45 days of the allotment, therefore, the opposite parties had no option but to cancel the allotment letter.  It has further been pleaded that there is no deficiency in service on their part. 

                        In these circumstances, prayer for dismissal of the complaint has been made. 

4.                              We have heard the complainant in person and the learned counsel for the opposite parties and have gone through the documents on record.

5.                              At the outset it has been argued by the ld. Counsel for the opposite parties that the complaint is not maintainable as the complainant is not a ‘consumer’ as defined under the Act. Our attention in this regard has been drawn by the ld. Counsel to para 3 of preliminary objection of the written statement wherein it has been specifically pleaded that the complainant had entered into an agreement for sale of the plot in question in favour of one Kuldip Singh Virk r/o H.No.542/10-A, Ghuman Nagar, Patiala and had received token money of Rs.1.00 lac. Thus, according to the ld. Counsel, the complainant intends to purchase the said plot for further sale and to earn profit.  The complainant in his replication to the written statement filed by the opposite parties did not dispute the said facts.

6.                              Here we may refer to Section 2(1)(d) of the Act, which reads as under :-

“(d)      "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 services 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 services 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 services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;” 

7.                              From the bare reading of the above extracted clause, it is apparent that a person who purchases goods for resale is not included within the definition of ‘consumer’.  In the present case, admittedly the complainant intends to purchase the plot in question for resale, therefore, he is not a ‘consumer’ in view of Section 2(1)(d) of the Act.

8.                              In view of the above discussion, the complaint is dismissed, being not maintainable, leaving the parties to bear their own costs.

9.                            Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

28.08.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

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