Haryana

Karnal

CC/489/2020

Anil Arora - Complainant(s)

Versus

Sh. Harish Sethi, Estate Manager, CHD Developers Limited - Opp.Party(s)

Lalit Chopra

09 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 489 of 2020

                                                        Date of instt.05.11.2020

                                                        Date of Decision:09.01.2024

 

Anil Arora son of Shri Radha Krishan Arora, resident of LD-296, Ground and First Floor CHD City, Sector-45, Karnal aged 45 years.

       

                                               …….Complainant.

                                              Versus

 

1.     Harish Sethi, Estate Manager, CHD Developers Ltd. CHD City, SCO No.16-17, CHDF Site Office, Behind Dana Pani, Sector-45, Karnal.

2.     R.K.Mittal, M.D./Director, CHD Developers Ltd. 201, Radha Chambers, Plot No.19-20, G Block Community Centre, Vikas Puri, New Delhi 110018.

3.     Gaurav Mittal, M.D./Directors CHD Developers Ltd. 201, Radha Chambers, Plot No.19-20, G Block Community Centre, Vikas Puri, New Delhi 110018.

                                                                         …..Opposite Parties

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.

              Shri Vineet Kaushik……Member       

      Dr. Suman Singh….…….Member

                   

Argued by: Shri Pawan Kumar Goyal, counsel for complainant.

                   Shri Amit Gupta, counsel for the opposite parties.

 

                    (Jaswant Singh President)

ORDER:

  

                

The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that the complainant is resident of LD-296, ground CHD City, Sector-45, Karnal since last 7 years. First floor of LD-296, Sector-45 Karnal had been purchased by the complainant since last 3 years and the same has been rented out by the complainant in monthly rent of Rs.12000/-. In December 2018, the prepaid electricity meter of 1^st floor of LD-296, CHD City, Sector-45, Karnal was not working properly due to the display issue. In this regard complainant made complaint in the CHD City site office in CFM Department and accordingly they removed the meter in December 2018 for its repair. Thereafter, complainant requested many times to CFM department to install the said meter but they postponed the matter on one pretext or the other by giving false assurances. On 01.05.2020, whatsapp message was sent to Estate Manager Sh.Harish Sethi regarding installing the meter but he did not give any reply, so complainant again on 13.07.2020 send whatsapp message to Estate Manager Sh. Harish Sethi regarding installing the meter but he also did not give any reply and he intentionally and deliberately blocked the number of complainant, so complainant again sent wahtsapp message to Estate Manager Sh.Harish Sethi regarding installing the meter through the mobile of his wife but he also did not give any reply and he intentionally and deliberately blocked the said number also. Complainant many time visited to the site office to meet personally but he refused to meet with complainant and also staff of the OP postponed the matter and gave false assurances. On 31.07.2020, complainant sent a letter through speed post to company office at CHD City, Sector-45, Karnal but no action has been taken on that letter also. On 18.08.2020, complainant again visited to the site office and entry in this regard was made in the register of OP but no action was taken by the OP. On 28.08.2020 complainant again visited to the site office and made entry in this regard in the register of the OP but no action was taken. That final reminder/letter in writing as well as oral intimation was given to the Estate Manager to install the meter. Thereafter estate manager Harish Sethi, called the complainant and apologized and assured that meter will be installed very soon as they have found the meter which was faulty. On 28.08.2020 they installed the meter and then they demanded Rs.39,902/- as maintenance charges, which is illegal and not binding upon complainant as the 1^st floor of complainant was locked since December 2018 due to non installing the meter, as previously it was rented for Rs.12000/- per month and due to faulty meter complainant was unable to rent out the properly further. On 06.09.2020 complainant requested Estate Manager to waive off the maintenance charges but they did not take action, so on 08.09.2020 complainant moved a written letter to Estate Manage Harish Sethi to waive off the maintenance charges but they did not take any action. Infact during the period of non installing of meter the 1^st floor was locked and complainant had loss of rental income and also the wall of 1^st floor was damaged due to fungus and also paint of the house was totally damaged as the floor was locked since December 2018, so complainant has suffered huge loss. Thereafter, complainant served a legal notice dated 17.09.2020 to the OP but despite that no action has been taken by the OP. Hence, there is deficiency in service and unfair trade practice on the part of complainant and prayed for allowing the complaint.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; consumer,  concealment of true and material facts, jurisdiction, estoppel, cause of action, etc. On merits, it is pleaded that maintenance services including electricity, sewer, water services at CHD City, Karnal, are provided by CHD Facility Management Pvt. Ltd which is a duly registered/incorporated company registered under Indian Companies Act. The demand in question has been raised by CHD Facility Management Pvt. Ltd and not by an individual and/or the respondents. The OPs No.2 & 3 are shareholders in M/s CHD Developers Ltd but they have no concern with the maintenance company i.e. CHD facility Management Pvt. Ltd. The complainant has entered into a maintenance agreement with the CHD Facility Management Pvt. Ltd in respect of the maintenance services including electricity, sewer, water facility provided by the said company to the complainant and other residents, who own/occupy property/ies at CHD City, Karnal. Under the said maintenance agreement entered into between the owner of premises in CHD City Karnal and the said maintenance agency i.e. CHD Facility Management Pvt. Ltd the owner/occupier of the premises is required to pay various charges to the maintenance agency. Non availability/removal of display from the meter inside the premises in question does not in any way affects it value and utility. Even without the display, the complainant could have recharged his electricity connection and secure electricity supply to the premises in question. The complainant is not entitled to any amount whatsoever. In fact, the complainant is liable to pay amount outstanding in respect of maintenance etc. to the maintenance agency. The complainant is neither a consumer of the OP nor the dispute raised by the complainant vide the present complaint as against the OP is a consumer as defined under the Consumer Protectioin At and as such, this Hon’ble Commission has no jurisdiction to try and entertain the present complaint. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied by the OP and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, postal receipts Ex.C1 to Ex.C3, bill Ex.C4, copy of legal notice Ex.C5, copy of photo of meter Ex.C6, extract of registers Ex.C7 to Ex.C9, copy of postal receipts Ex.C10 to Ex.C12, copy of application Ex.C13, copy of photograph Ex.C14, copy of postal receipt Ex.C15, copy of applications Ex.C16 to Ex.C18, copy of rent agreement Ex.C19, photographs Ex.C20 to Ex.C24 and pendrive Ex.C25 and closed the evidence on 01.06.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Gurinder Singh Estate Manager Ex.OP1/A, copy of possession certificate Ex.OP1, copy of bill of supply Ex.OP2 to Ex.OP25, copies of tax invoice Ex.OP26 and 27, copy of performa invoice Ex.OP28, copy of tax invoice Ex.OP29 to Ex.OP45, copy of bill of supply Ex.OP46, copy of tax invoice Ex.OP47 to Ex.OP51, copy of perorma invoice Ex.OP52, copy of order of National Company Law Tribunal Ex.OP53 and closed the evidence on 05.06.2023 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for the complainants, while reiterating the contents of the complaint, has vehemently argued that the complainant is owner of first floor LD296, Sector-45, Karnal. The meter installed in the said premises was not working properly, so that the complainant approached the OPs to rectify the defect and on the request of the complainant, the OPs removed the meter in the month of December 2018 but did not got installed the same despite several oral and written requests to the OPs and finally they installed the meter on 28.08.2020 and also demanded an amount of Rs.39902/-, which is illegal, and not binding upon rights of the complainant. Due to the said act of the OPs, the complainant suffered huge loss of rental income and also suffered mental agony and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that first of all, the complainant is not a consumer as per Consumer Protection Act, 2019, therefore, the present complaint is liable to be dismissed. He further argued that the maintenance services in the township including electrical, sewer, water facility are being provided by CHD facility Management Pvt, Ltd, and not by the OPs. The OPs have no concern with the maintenance company. The complainant has entered into a maintenance agreement with the CHD Facility Management Private Limited in respect of the maintenance service, who own/occupy properties at CHD City, Karnal, therefore, the present complaint is barred by mis-joinder and non-joinder of necessary parties. Inspite of receipt of regular bills the complainant failed to pay the charges to the said company and as such a huge amount has become due against the complainant. The complainant in order to wriggle out of his liability to pay the maintenance, has filed the present complaint. An owner/occupier may recharge electricity connection from inside/outside and lastly prayed for dismissal of the complaint. 

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant is owner of a flat in CHD City, Sector-46, Karnal.

11.           Before going into the merits of the complaint, firstly we decide, whether the complainant falls under the definition of consumer as per Consumer Protection Act, 2019 or not?

12.           Section 2 (7) of Consumer Protection Act, is reproduced as under:- 

2 (7) "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 service 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 service 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 service for any commercial purpose. Explanation.—For the purposes of this clause,— (a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 

(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

13.           As per said Section of Consumer Protection Act if any person buys any goods for a consideration which has been paid or promised or partly paid and partly promised, and hires any services falls under the definition of consumer. In the said Section, it has been specifically mentioned that “but does not include a person who avails of such service for any commercial purpose.” In his pleading, the complainant has specifically pleaded that he had rented out his flat and earns rent Rs.12000/- per month. The complainant also placed on file copy of rent agreement Ex.C19, whereby it has been clearly mentioned that the complainant has rented out the flat wherein the electric meter was got installed. It is not the case of the complainant that he has no source of income except rental income and he has rented out the said plot for earning his livelihood, therefore, the activity done by the complainant is commercial activity, thus, as per said Section, the complainant does not fall under the definition of “consumer” as per Consumer Protection Act 2019.

14.            Furthermore, if for the sake of arguments, it is presumed that the complainant is consumer and there is deficiency in service on the part of OPs, in that case also, the maintenance service including electricity, sewer, water services at CHD City, Karnal, are being provided by CHD Facility Management Pvt. Ltd and the said CHD Facility Management Pvt. Ltd has not impleaded as party in the present complaint by the complainant, therefore, the present complaint is also bad for mis-joinder and non-joinder of necessary parties.   

15.           Thus, as a sequel to abovesaid discussion, the present complaint deserves to be dismissed and same is hereby dismissed. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced

Dated: 09.01.2024

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Suman Singh)

                          Member                     Member