This case is coming for final hearing on 10.10.2014 in the presence of Sri Y.Vijaya Saradhi Advocate for the Complainant and Opposite Parties called absent and set exparte and having stood over till this date, the Forum delivered the following:

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on

behalf of the Bench)

1.       The case of the complainant is that the representatives of the opposite parties approached the complainant and basing on the attractive words of the opposite parties, the complainant purchased a house plot from the opposite parties believing the words of the Opposite parties, as previously also the complainant purchased a house plot from the opposite party and hence the complainant intended to purchase again.  The Complainant stated that he agreed to purchase house plot admeasuring 800sq.yds in Plot Nos.25,26,27,36,37 & 38(BB 13) for an amount of Rs.13,60,000/-.  As per the demands and directions of the opposite parties, the complainant paid an amount of Rs.40,000/- on 05.11.2011 towards advance by way of cash to purchase the house plots.  The Opposite party issued a receipt to that effect bearing receipt No.435, the complainant paid the balance amount of Rs.13,20,000/- on 08.12.2011 to opposite parties towards total sale consideration and the opposite parties issued another receipt bearing No.440 on the same day.  Thus the complainant paid in total Rs.13,60,000/- towards total sale consideration to the opposite parties.  After receipt of the consideration, the opposite parties stated that the registration of the plots will be done within one month or two, believing the words of the opposite parties, the complainant waited several months. After that, the complainant requested and demanded the opposite parties to register the plots.  In the month of first week of August 2012 the complainant insisted the opposite parties to furnish the L.P number and layout plan, but the Opposite parties are postponed the issue without assigning any valid reason, then, the complainant got issued a notice on 18.10.2012 to the opposite parties to register the plot in his name, the opposite parties though received the notice, but failed to respond.  Thus, the opposite parties failed to fulfill its obligation which clearly shows its deficiency of service.  Hence, the complaint to direct the opposite parties;

a)      to refund an amount of Rs.13,60,000/- with 36% p.a. interest.

b)      to pay Rs.1,00,000/- towards damages besides compensation and costs.

2.       On the other hand, the 1^st and 2^nd opposite parties called absent even after ordering notice by way of Substitute service, there is no representation hence set exparte. 

3.       At the time of enquiry the complainant filed evidence affidavit and exhibits Ex.A1 to A5 are marked and also filed written arguments.  As there is no representation by the complainant even after so many adjournments for hearing and also even after imposing costs, costs not paid and treated it heard for complainant and posted for orders.

4.       In view of the respective contentions, the point that would arise for determination is:-

i)       Whether the complainant come under the definition under Section-2(1)(d) of Consumer Protection Act?

ii)       Whether there is any deficiency in service on the part of the opposite parties, if so can the complainant entitle for the reliefs prayed for?

5.       Exhibit A1 & Ex.A2 dated 05.12.2011 and 08.12.2011 respectively are evidences for the payments made by the complainant in total is Rs.13,60,000/- and in those two exhibits, the signature of Managing Director and amount and also mentioned the Plot Nos for 800sq.yds.  Ex.A5 is the copy of the Sale Deed executed by the opposite parties in favour of the complainant on 13.07.2011 for 300sq.yds for an amount of Rs.90,000/-.

6.       The version of the complainant is that as already the complainant purchased plot from opposite parties on 13.07.2011 he want to purchase another plot and approached the opposite party and paid total sale consideration, but the opposite parties failed to register the plot in the name of the complainant.  Ex.A3 is the notice issued by the complainant on 18.10.2012 to settle the issue amicably.  Ex.A4 is the acknowledgment for Ex.A3. 

7.       After analysation of the facts of the complaint along with documents, the Forum is of the view that, Is the complainant come under Section-2(1)(d) (i & ii) of Consumer Protection Act or not, as the Complainant paid sale consideration for six plots admeasuring 800sq.yds, we look into the decision given by the National Commission 2014(III) CPR 117 Shailaja Finance Limited Vs. GTM Builders & Promoters Ltd., and another.  Wherein, the complainant is a Finance Limited company and the nine apartments were purchased by the complainant to use them for residential purpose for their directors and staff members, the opposite party did not hand over the plots to the complainant.  But the National Commission held that the transaction clearly relatable to the business activity of the complainant and it will fall in the category of the Commercial purpose.  Under Consumer Protection Act 1986 vide amendment act No.62 of 2002, hence instead of that the complaint is dismissed at the time of admission.  In another judgment Raj State Industrial dev and Inv.Corporation Limited Vs N.K.M Jewels Pvt. Ltd., held that a person who obliged for allotment of plots for setting up three separate industrial units cannot be said to be doing so exclusively for the purpose of earning his livelihood by means of self-employment, hence, the complainant is not a consumer and the complaint is dismissed.

8.       After perusal of these citations by the Forum, it is observed that in the above two decisions, the complainants are businessmen and they opted to purchase plots/flats to promote their business only which was for commercial purpose.  But in the present case the complainant opt to purchase six plots i.e., 800sq.yds, but he is not a business man and he is a common man and want to purchase 800sq.yds at one place as each plot consists of 133sq.yds only, hence he want to purchase 800sq.yds, as such he went for six plots which are in same place. We are of the considered view that the complainant has not purchased those plots to resale and with a profit moto, but only to purchase six plots, they are all in one place.  Hence, the above two decisions are not applicable as the complainant is not a businessman and not purchased those plots for commercial purpose.  That too there is no contention by the opposite parties to know that the complainant purchased the six plots only with a moto of profit by resale those plots to others. 

9.       Hence the complainant comes under the definition of Consumer Protection Act.

Accordingly, Point No.1 is answered in favour of the complainant.
10.     Even after receipt of the notice issued by the complainant i.e., Ex.A3 there is no reply from the opposite parties which clearly shows its deficiency in service and negligent attitude of the opposite parties.  Hence, the opposite parties are liable to pay Rs.13,60,000/- to the complainant with 9% p.a. interest from the date of lawyer’s notice.

11.     The complainant invested huge amount to purchase house plots and to enjoy the same, but because of the acts of the opposite parties he deprived of having own house plot and there is a huge financial loss to the complainant, hence the complainant can entitle the compensation of Rs.10,000/- which would be just and reasonable besides costs.

          Accordingly, point No.2 is answered in favour of the complainant. 

12.     In the result, the complaint is allowed directing both the opposite parties to refund an amount of Rs.13,60,000/- with 9% p.a. interest from 18.10.2012 to the complainant within three months, failing which to pay the same with 12% p.a. interest till the date of realization.  The Opposite parties are further directed to pay Rs.10,000/- towards compensation besides costs of Rs.1,500/-.

Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 22^ND day of October, 2014.

    Sd/-                                                                       Sd/-

Member                                                                 President (FAC)

                                                                   District Consumer Forum-I

                                                                             Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:

                        NIL

    Sd/-                                                                       Sd/-

Member                                                                  President (FAC)

                                                                    District Consumer Forum-I

                                                                              Visakhapatnam

//VSSKL//