STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 337 of 2012 |
Date of Institution | : | 09.10.2012 |
Date of Decision | : | 13.12.2012 |
B.R. Chauhan s/o late Sh. M.R. Chauhan r/o H.No.3061, Sector 38-D, Chandigarh.
---Appellant/complainant
Versus
1. Omaxe Chandigarh Extn. Developers Pvt. Ltd., through its authorized signatory, Regional Office : SCO 143-144, Sector 8-C, Madhya Marg, Chandigarh.
2. The Manager, M/s Omaxe Ltd. (Head office of Omaxe), 10, LSC, Kalkaji, New Delhi 110019.
....Respondents/Opposite Parties
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Harindar Kumar, Aurora, Advocate for the appellant.
Sh. Munish Gupta, Advocate for the respondents.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
This appeal is directed against the order dated 28.08.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant), holding that he did not fall with the definition of a consumer, as per Section 2(1)(d) of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only).
2. The facts, in brief, are that, the complainant 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, within 45 days, after allotment. It was stated 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. It was further stated that Mr. Amardeep Singh, General Manager of Opposite Party No.1, admitted the mistake and told the complainant that he could deposit the amount upto 10.10.2010. However, subsequently, the Opposite Parties, unilaterally, cancelled the allotment of the complainant before the expiry of 10.10.2010, vide letter dated 8.10.2010, without sending him any prior notice. The complainant sent a legal notice dated 23.10.2010, to the Opposite Parties, through registered post, on 15.11.2010, for restoration of allotment, which was unilaterally cancelled, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, in illegally and arbitrarily, cancelling the allotment aforesaid, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Act, was filed, directing the Opposite Parties, to restore plot No.168, in favour of the complainant; pay compensation, in the sum of Rs.3,00,000/-, for mental agony and physical harassment; or in the alternative, pay Rs.19,96,750/-, in toto, which included the payment of Rs.4,22,000/-, made to them, with interest @18% P.A., from 24.7.2010 to 24.12.2010; Rs.12,23,100/-, as cancellation/enhancement amount of plot; compensation, in the sum of Rs.3,00,000/- for mental agony and physical harassment; and cost of litigation, to the tune of Rs.20,000/-.
3. The Opposite Parties, in their written version, by way of affidavit of Sh. Harsh Bhargav, Manager Legal, authorized representative of Opposite Party No.1, pleaded that the complainant had concealed the material facts, from the District 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 a sum of Rs.1.00 lac, vide cheque dated 3.10.2010, from him. It was further pleaded that since the plot, in question, was purchased by the complainant, for the purpose of resale, for earning huge profits, which activity was a commercial one, he did not fall within the definition of a consumer. The allotment of plot, in question, to the complainant, was not disputed. The amount paid by the complainant, towards the price of the said plot, was also not disputed. It was denied that the allotment letter sent to the complainant was undated or that he was given time by the General Manager of Opposite Party No.1, till 10.10.2010, for making the remaining payment. It was further stated that the Opposite Parties sent various letters/reminders to the complainant, for making payment of the remaining consideration, but he did not make payment. It was further stated that since the complainant failed to make the remaining payment within 45 days of allotment, therefore, the Opposite Parties had no option than to cancel the allotment letter made, in his favour. It was further stated that earlier too, the complainant filed a complaint, with regard to the same facts, which was dismissed in default on 03.05.2011, by the District Forum and, thereafter, he moved an application for restoration of the same, but later on, withdrew the same, and the same was dismissed as withdrawn on 16.05.2011. It was further stated that this fact was also concealed by the complainant, at the time of filing the complaint, and, as such, the complaint was liable to be dismissed on this ground too. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. In the replication, filed by the complainant, he admitted that earlier he filed Consumer Complaint No. 21 of 2011, in the District Forum, which was dismissed in default, on 03.05.2011, in default of his appearance. It was stated that he also moved an application no.53 of 2011, for the restoration of complaint, which was withdrawn on 16.05.2011, as he was given assurance by the Counsel for the Opposite Parties, for amicable settlement. It was also admitted that the complainant received a sum of Rs.1 lac, on account of token money, against the plot, in question, on 03.10.2010 from Kuldip Singh Virk, r/o H.No.542/10-A, Ghuman Nagar, Patiala. However, the remaining averments, were denied, being wrong.
5. The Parties led evidence, in support of their case.
6. After hearing the complainant, in person, the Counsel for the Opposite Parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant/complainant, submitted that the District Forum was wrong, in coming to the conclusion, that the complainant, did not fall within the definition of a consumer, and, as such, the complaint, was not maintainable. He further submitted that since the complainant was allotted the plot, by the Opposite Parties, and he paid a sum of Rs.4,22,000/-, towards the part price thereof, it (plot), being immovable property, did not fall within the definition of goods. He further submitted that, as such, it could not be said that the complainant did not fall within the definition of a consumer. He further submitted that, no doubt, token money of Rs.1 lac, was received from Kuldip Singh Virk, r/o H.No.542/10-A, Ghuman Nagar, Patiala, in respect of the plot, in question, yet such an agreement is void-abinitio. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
10. On the other hand, the Counsel for the respondents/Opposite Parties, submitted that, since the plot was purchased by the complainant, with an intention to resell the same, to earn huge profits, the District Forum, was right in holding that such purchase was for commercial purpose, and, therefore, he did not fall within the definition of a consumer, as provided by the Act. He further submitted that the District Forum was right, in coming to the conclusion that the complaint was not maintainable, on account of this reason. He further submitted that even the complaint was not maintainable, as the earlier complaint filed by the complainant, regarding the plot, in question, was dismissed in default, and the application for restoration moved by him, was withdrawn by him, and no liberty was granted by the District Forum, to file a fresh complaint, on the same cause of action. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
11. For proper decision of the appeal, reference to the provisions of Section 2(1)(d) and 2(1)(o) of the Act, is necessary. Section 2(1)(d) and 2 (1) (o) of the Act, 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;”
2 (1)(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”
12. In the instant case, the complainant availed of/hired the services of the Opposite Parties, for consideration, for the purchase of plot. He was, ultimately, allotted the plot. According to Section 2(1)(d)(ii) extracted above, a person who hires or avails of the services for consideration, for any commercial purpose, does not fall within the definition of a consumer. No doubt, to the present case, the provisions of Section 2(1)(d)(i) are not attracted. However, the provisions of Section 2(1)(d)(ii) of the Act are certainly attracted to the facts and circumstances of the present case. In the written statement, it was, in clear-cut terms, stated by the Opposite Parties that the complainant entered into agreement to sell the plot, in favour of one Kuldip Singh Virk, r/o H.No.542/10-A, Ghuman Nagar, Patiala, and received Rs. 1 lac. In the replication, filed by the complainant, he admitted that he received Rs.1 lac, from Kuldip Singh Virk, r/o H.No.542/10-A, Ghuman Nagar, Patiala. Not only this, it is evident, from Annexure R-3, copy of the letter, which was written by said Kuldip Singh Virk, r/o H.No.542/10-A, Ghuman Nagar, Patiala, to the Senior Superintendent of Police, Sahibzada Ajit Singh Nagar, Mohali, that the complainant told him that he was the owner of the plot, in question, and, thereafter, the bargain was struck, between the parties. It was further stated, in this letter, that he paid a sum of Rs.1 lac, vide cheque no.058700 dated 03.10.2010, drawn on Oriental Bank of Commerce, Branch Focal Point, Patiala. It was further stated, in this letter that another amount of Rs.2,26,500/-, was also paid by him, to the complainant, towards the purchase of plot. He further stated, in this letter, that, as such, the total amount of Rs.3,26,500/-, towards earnest money was paid to the complainant. It was further stated, in this document, that the property dealer also received Rs.10,000/-, as commission, from him (Kuldip Singh Virk). It was further stated, by Kuldip Singh Virk, in this document that, later on, he came to know that the allotment of plot, in favour of the complainant, had been cancelled and when he (complainant) was asked to refund the amount, aforesaid, he refused to do so. It was, thus, clearly proved that the plot was purchased, by the complainant, for the purpose of resale of the same. Thus, the complainant hired and availed of the services of the Opposite Parties, for consideration, for commercial purpose. Had the complainant purchased the plot, in question, for residential purpose, there would have no necessity for him, to enter into an agreement, to sell the same to Kuldip Singh Virk, r/o H.No.542/10-A, Ghuman Nagar, Patiala, referred to above. The District Forum was, thus, right in coming to the conclusion, that the complainant did not fall within the definition of a consumer, since, he hired/availed of the services of the Opposite Parties for the allotment of plot, for commercial purpose i.e. for resale of the same. The findings of the District Forum, in this regard, being correct are affirmed. The submission of the Counsel for the appellant/complainant, being devoid of merit, must fail, and the same stands rejected.
13. The next question, that falls for consideration, is, as to whether, the complaint was maintainable, especially when earlier another complaint no. 21 of 2011, was filed by the complainant, with regard to the same subject matter, which was dismissed, in default, by the District Forum, and later on, he moved an application for restoration of the same but withdrew it on 16.05.2011. Once the complainant filed a complaint, earlier, which was dismissed, in default, by the District Forum, and, later on, he moved an application for restoration of the same, which was also dismissed as withdrawn, in our opinion, he could not file the second complaint, on the same cause of action, especially, when no liberty was granted to him, by the said Forum, to file a fresh complaint. In our considered opinion, under the provisions of the Act, the second complaint, in the facts and circumstances, referred to above, regarding the same subject matter, was not maintainable. On this ground too, the complaint was liable to be dismissed.
14. No other point, was urged, by the Counsel for the parties.
15. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
16. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
17. Certified copies of this order, be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion.
Pronounced.
13.12.2012
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[NEENA SANDHU]
MEMBER
Rg
