CC No.877.2016

Filed on 23.06.2016

Disposed on.22.02.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 22^nd DAY OF FEBRUARY 2018

CONSUMER COMPLAINT NO.877/2016

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                         V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainants on 23.06.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to refund the amount in deposit to the tune of Rs.9,11,137/- with interest at 12% p.a. To pay compensation of Rs.1,00,000/- towards the mental agony and other reliefs.

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainants alleges that they approached Opposite Party No.2 Branch Office of the Opposite Party No.1 which is situated at Bangalore to purchase a residential flat, which was proposed to be constructed by the Opposite Party No.1 Company in the name of Parsvnath Privilege, Greater Noida and Parsvnath Royale at Panchkula, Haryana.    As per the Opposite Party Company procedure, the person who is interested to purchase the flat was required to pay Rs.5,00,000/- in advance.  The Complainant has paid an advance amount of Rs.5,00,000/- on 05.04.2006, at Bangalore.  After the Opposite Party No.1 received the above advance amount from the Complainant No.1, the Opposite Party No.1 was pleased to issue a Provisional Allotment Letter on 25.09.2006 in favour of Complainant No.1 allotting the flat No.T6-802 in Parsvnath Royal, at Panchkula, Haryana.   The Complainant No.2 Company, none other than the sister concern of the Complainant No.1 Company has also booked one Flat No-T1-1001 in Parsvnath Privilege, Greater Noida, through Opposite Party No.2 with Opposite Party No.1. As per the Opposite Parties demand the Complainant No.1 to pay balance amount of Rs.4,11,137/- towards the cost of the flat.  On the said demand by the Opposite Parties, Complainant No.1 had paid a sum of Rs.4,11,137/- on 01.07.2007 through Cheque No.594098 dt.01.07.2007 drawn on HDFC Bank, Kasturba Road, Bangalore, in total Rs.9,11,137/- paid by the Complainant No.1 towards the above said flat.  Thereafter the Opposite Parties did not demand for any payment nor informed the Complainant of their project at Haryana.  Though the Complainant No.2 approached the Opposite Parties several times they did not show any interest towards the completing the project or coming forwarded to update the status of the project.   The Opposite Party No.1 sent Reminder dt.05.01.2008 to the Complainant No.2 to pay an amount of Rs.03,21,687/- towards the flat booked by Complainant No.2.  As, there was no update regarding the flat booked by Complainant No.1, the Complainant No.1 by its letter dt.05.03.2008 requested the Opposite Party No.1 to transfer the funds from the account of Flat No.T6-802 of the Complainant No.1 to the account of the Flat impugned No-T1-1001 in Privilege, Greater Noida, booked by the Complainant No.2.  For the said request also the Opposite Party No.1 did not suitably replied nor complied.  However, once again the Complainant No.1 requested the Opposite Party No.1 by its letter dt.06.08.2010 to transfer the funds from the impugned Flat i.e., No.T6-802 to Unit No.T1-1001 booked by Complainant No.2, as the Complainant No.1 Company was not interested to hold the said property, because of the conduct of the Opposite Parties in not updating the status of the project.  As the Opposite Party did not reply the same or rejected the said request, the Complainant was under the impression that the said amount has been transferred as requested and the Complainant was waiting for getting the above said flat registered in it name.  Since, there were no responses to the communication of the Complainant through letter or telephone from the Opposite Party after 06.08.2010.  The Complainant personally visited the Opposite Party head office at New Delhi and Opposite Party No.2 at Bengaluru several time from 2010 to 2013 to know the progress of the project and to know when the project is going to be completed to make further payment.  Whenever the Complainant visited the Opposite Parties, for one reasons or the other assured the Complainants about completing the project by the end of December 2014.  Till this date there is no intimation to the Complainant either calling upon the Complainants to pay the balance amount or about the completion of the project.  The above said conduct on Opposite Party clearly demonstrate that the Opposite Party is intending to cheat the Complainant.  With a fond hope of purchasing the above said flat as the Complainant was intending to shift his residence to the above said flat.  Due to non-response from the Opposite Party side, the Complainant has been put to lot of mental agony in addition to blocking of the above said huge investment.  The Complainant would have invested the above said amount elsewhere and he would have by this time purchased a fully furnished flat.  Non response from the Opposite Party side as to the completion of the flat and non-handing over the possession of the same amounts to deficiency of service.  The Complainant was constrained to issue legal Notice dt.13.01.2015 to the Opposite Party calling upon the Opposite Party to execute the registered sale by receiving the balance sale consideration within 15 days from the date of receipt of this legal notice or return the amount which is in deposit with the Opposite Party to a tune of Rs.18,50,363/- with 21% interest p.a. The Opposite Party though received the above legal notice, the Opposite Party neither replied the said legal notice nor executed the sale deed or return the amount to the Complainant. This clearly shows the attitude of the Opposite Party which amounts to deficiency in service.  Hence this complaint.

3. Even though the notice was served on Opposite Party No.2.  The Opposite Party No.2 failed to put their appearance hence placed ex-parte. 
4. In response to the notice, the Opposite Party No.1 put their appearance through their counsel and filed their common version.  In the version pleaded that the complaint is not maintainable in view of the fact the Complainants by  way of the captioned complaint are seeking the refund of principal amount along with exorbitant rate of interest and compensation in violation of the law laid down by the Hon’ble Supreme Court and the Hon’ble National Commission.  The complaint is not maintainable as the Complainants are Private Companies.   The Complainants are not Consumers qua the Opposite Parties as defined under Section 2(i)(d) of the Consumer Protection Act, 1986.  The Complainants purchased the Flat for investment purposes and for residential purpose, thus, the Complainants cannot be said to be covered under the provisions of Consumer Protection Act, 1986.  The complaint filed by the Complainants is liable to be dismissed on this ground alone.  The delay in construction of project is caused due to recession in the real estate sector and the Opposite Parties have duly communicated to the Complainants informing about the status of project and also reiterated its stand to honor the terms and conditions of the Flat Buyer Agreement in case of any delay, notwithstanding the difficulties faced by the Opposite Parties so as to safeguard the interests of the Complainants.  Admittedly, the project is under way and is not abandoned by the Opposite Parties and the money deposited by the Complainants have been utilized in the construction activities.  The Complainants have not been able to establish any deficiency of service or consumer dispute as contemplated under the Consumer Protection Act, 1986 which could be attributable to the Opposite Parties.  Therefore, the complaint is liable to be dismissed. The Complainants have not come before the Hon’ble Forum with clean hands and they have suppressed material facts from the Forum.  The Complainant No.2, despite of receiving various communications from the Opposite Party, has not signed and returned the copy of the Flat Buyer Agreement (FBA) to the Opposite Party till date.  As such, the Complainant No.2 with ulterior motives has withheld the execution of the FBA and has filed the present complaint before the Forum in order to take advantage of his own wrong.  Accordingly, the present complaint is liable to be dismissed on this ground alone.  M/s KIT Commodities Private Limited i.e., the Complainant No.2 had done an advance registration for a residential apartment in the upcoming project of the Opposite Parties and deposited an amount of Rs.10,00,000/- towards the said advance registration on 30.04.2006.  Thereafter, the Complainant No.2 was provisionally allotted a residential flat bearing No.T1-1001 in “Parsvnath Privilege”, Greater Noida admeasuring 1855 Sq.Ft approximately at the basic cost of Rs.52,86,750/- on 23.02.2007.   On 12.05.2007 the Opposite Party No.1 sent two copies of allotment letter and Flat Buyer Agreement to the Complainant No.2 for the purpose of signing the same.  The Complainant No.2 was also urged to sign and return the copy of the same to the Opposite Party, till date, the same has not been executed and returned by the Complainant No.2 to the Opposite Parties.  The Opposite Parties sent letters dt.08.06.2007, 01.10.2007, 13.11.2008, 20.07.2010, 11.09.2010 and 04.10.2010 informing the Complainant No.2 the fact that the Opposite Parties have not received the signed copy of the Flat Buyer Agreement. It was further urged to the Complainant No.2 to return the Flat Buyer Agreement to the Opposite Party after signing the same. The Complainant No.2 was persistent defaulter and made numerous defaults in making timely payments towards the booking, for which the Opposite Parties issued several Reminders letters from time to time.  With respect to the property bearing No.T6-802, Parsvnath Royale, Panchkula.  The Complainant No.1 had done and advance registration for a residential apartment in the upcoming project of the Opposite Parties on 04.04.2006 and deposited Rs.5,00,000/- towards the said registration.   Thereafter, the Complainant No.1 was provisionally allotted a residential flat bearing No.T6-802, admeasuring 1780 sq.ft at the basic cost of Rs.57,85,000/-.  The Complainant No.1 was persistent defaulter and made numerous defaults in making timely payments towards the booking, for which the Opposite Parties issued several Demand letters from time to time.  Despite clear communications from the Opposite Parties, the Complainant No.1 did not comply with the reminders letters and failed to make any payment towards the outstanding.  Ultimately, the Opposite Party left with no alternative but to cancel the said allotment vide letter dt.December 12^th 2012.  Hence it is crystal clear that the Complainants have instituted the complaint under reply in order to take the advantage of their own wrong with the sole intention to earn wrongfully from the Opposite Parties.   Hence prays to dismiss the complaint.

5. The Complainant, Sri.Sunil Kumar Kabra filed his affidavit by way of evidence and closed his side.  The Opposite Parties, Sri.Madan Dogra filed his affidavit by way of evidence.  Heard the arguments of Complainants.

6.      The points that arise for consideration are:-

1. Whether the Complainants are ‘Consumer’ as defined under Section 2(i)(d) of the Consumer Protection Act, 1986 ?
2. Whether the Complainants have proved the alleged deficiency in service by the Opposite Parties ?
3. If so, to what relief the Complainants are entitled ?

7.     Our findings on the above points are:-

                POINT (1):-  Accordingly

POINT (2):-  Will not survive for consideration

                POINT (3):-  As per the final Order

REASONS

8. POINT NO.1:- The learned Counsel for the Opposite Parties argued that the complaint is not maintainable. Since, the Complainants are Private Companies.  The Complainants are not ‘Consumers’ as defined under Section 2(i)(d) of the Consumer Protection Act, 1986.  The Complainants purchased the Flat for investment purposes and not for residential purpose, thus, the Complainants cannot be said to be covered under the provisions of Consumer Protection Act, 1986. 

9. On the other hand, the learned Counsel for the Complainants argued that the Complainants approached Opposite Party No.2 Branch office of the Opposite Party No.1 which is situated at Bengaluru, to purchase a residential flat, which was proposed to be constructed by the Opposite Party No.1 Company in the name of Parsvnath Privilege, Greater Noida and Parsvnath Royale at Panchkula, Haryana.  The 1^st Complainant has paid an advance amount of Rs.5,00,000/- on 05.04.2006, at Bengaluru.  The Opposite Party No.1 after receiving the advance amount from the Complainant No.1 issued a Provisional Allotment Letter on 25.09.2006 allotting the flat No.T6-802 in Parsvnath Royal, at Panchkula, Haryana.   The Complainant No.2 Company, none other than the sister concern of the Complainant No.1 Company has also booked one Flat No.T1-1001 in Parsvnath Privilege, Greater Noida, through Opposite Party No.2, thereby the Complainants are ‘Consumer’ as defined under Section 2(1)(d) of the Act.  Since the Complainants by paying advance amount agreed to purchase flats which are proposed to be constructed by the Opposite Party No.1.

10. With this argument and on perusal of record, even as looking into the cause title the Complainant No.1 M/s  Maheshwari Electronics Cable T.V.Private Limited, Gurupriya Kalyana Mantapa, Kamakshipalya, Bangalore-79 and Complainant No.2 M/s KIT Commodities Private Limited, No.4, Murgan Plaza, III Cross, 1^st Floor, R.R.Lane, Bangalore.  Even according to the Complainants No.1 & No.2 are Companies but not individual person.  Further Para No.3 in the complaint, it clearly mentioned that the Complainants approached Opposite Party No.2 Branch Office, which is situated at Bangalore, to purchase a residential flat, which was proposed to be constructed by the Opposite Party No.1 Company in the name of Parsvnath Privilege, Greater Noida and Parsvnath Royale at Panchkula, Haryana. So it clear that Complainants wants to purchase as different places which those places are far away from Bengaluru.  Apart from that it is not proper to believe that they were going to purchase the flat for residential purpose and in support of that contention the Complainants have not placed any material evidence.  On the other hand, the Complainants produced only Provisional Allotment of residential flat No.T6-802 in Parsvnath Royal, at Panchkula, Harynana and receipt issued by the Opposite Parties for receiving the advance amount of Rs.5,00,000/-.  Thereby even on perusal of record, it is crystal clear that there is no materials to believe that the Complainant Nos.1 & 2 are going to purchase the proposed flat constructed by the Opposite Party No.1 on Panchkula and Noida for their residential purpose. 
11. Section 2(1)(d) of the Act, the Opposite Parties defines ‘Consumer’ means :-

“any person 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”;

12. From reading of Section-2(1)(d) it is very clear that the Complainants have not placed any material evidence to show that the Complainants were going to purchase the flat for their residential purpose.  On the other hand, admittedly both Complainants are carrying their business at Bengaluru and they are intend to purchase flat at Noida and Panchkula for their residential purpose which cannot believable.  On the other hand, as rightly argued by the Opposite Parties, the Complainants were booked the flats only for investment purpose i.e., commercial purpose.  Therefore, the Complainants are not ‘Consumer’ as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.   Hence, we answer point No.1 accordingly.

13.  POINT NO.2:- In view of my findings on point No.1 as the Complainants are not ‘Consumer’ as defined under Section 2(1)(d).  In question of considering the point No.2 will not survive. Hence, we answer point No.2 will not survive for consideration.

14. POINT NO.3:-  In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint is dismissed.  No cost.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 22^nd day of February 2018).

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Sunil Kumar Kabra, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Provision Allotment Letter dt.25.09.2006.
2. Copy of the Receipt dt.05.04.2006.
3. Copy of the letter dt.11.07.2007.
4. Copy of the request letter dt.06.08.2010.
5. Copy of the Board Resolution dt.09.09.2010.
6. Copy of the postal receipt.
7. Copy of the Legal Notice dt.04.04.2015.
8. Copy of the present development of the impugned flat published in Official Web Site of the Opposite Party.

Witness examined on behalf of the Opposite Parties:

1. Sri.Madan Dogra, Authorized Signatory of Opposite Party by way of affidavit

List of documents filed by the Opposite Party:

1. Copy of Board Resolution dt.14.09.2016.
2. Copy of letters dt.08.06.2007, 01.10.2007, 13.11.2008, 20.07.2010 and 04.10.2010.
3. Copies of reminders/demand letters dt.14.06.2007, 27.09.2007, 05.01.2008, 28.02.2008, 07.04.2008. 23.04.2008, 01.05.2008, 30.05.2008, 21.07.2008, 09.08.2008, 15.12.2010, 14.02.2011, 14.03.2011, 31.03.2011, 02.08.2011, 05.12.2011, 31.05.2012, 01.08.2012, 05.09.2012, 15.10.2012, 06.11.2012, 17.11.2012 and 26.11.2012. 
4. Copy of the letter dt.12.12.2012.

    MEMBER                                                                         PRESIDENT