Haryana

StateCommission

A/295/2016

HARYANA STATE AGRICULTURE MARKETING BOARD - Complainant(s)

Versus

SUREKHA SETIA - Opp.Party(s)

B.D.BHATIA

17 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

 

 

First Appeal No.295 of 2016

Date of the Institution:08.04.2016

Date of Decision:17.05.2017

 

1.      Haryana State Agriculture Marketing Board, Sector-6, Panchkula through its Chief Administrator.

2.      Market Committee, Sector-20, Panchkula through its Secretary.

                                                                             .….Appellants

Versus

Mrs. Surekha Setia W/o Sh. Krishan Veer Setia,  225, GH-1, Sector-5, MDC, Panchkula.

                                                                                                .….Respondent

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.B.D.Bhatia, Advocate counsel for the appellants.

                    Mr. D.S Soundh, Advocate counsel for the respondent.

 

O R D E R

URVASHI AGNIHOTRI, MEMBER:

1.      Haryana State Agricultural Marketing Board and Anr.-OPs are in appeal against the Order dated 13.01.2016 passed by the learned District Consumer Disputes Redressal Forum, Panchkula (for short District Forum), whereby the complaint of Mrs. Surekha Setia, an allottee of a commercial shop-cum-office for the refund of the first installment of Rs.8,00,200/- being 25% of the total price of Rs.32,00,000/-, has been allowed by directing the OPs as under:-

1. “To make the payment of Rs.8,00,200/- deposited by the complainant alongwith interest @ 9 % from the date of deposit of the amount.
2. To make payment of an amount of Rs.50,000/- to the complainants as compensation for harassment, mental agony, unfair trade practice and deficiency in service.
3. To make the payment of Rs.10,000/- for litigation expenses”.

 

2.      Briefly stated, Haryana State Agricultural Marketing Board and Anr.-OPs launched a scheme for the allotment of shops/floor on free hold basis in the air conditioned, four stories Agro Mall with two tier basement parking etc. in sector-20, Panchkula, for various kind of Agro based products, food products and other allied products relating to Agriculture and Horticulture. The complainant applied for a shop by initially depositing of Rs.3,75,400/- and thereafter on the receipt of the letter dated 19.11.2008 from the OPs further deposited a sum of Rs.4,24,800/-. The Ops allotted shop No.54 to the complainant vide allotment letter dated 18.05.2009. However, as due to certain procedural difficulty the OPs could not complete the constructions of the Mall for an indefinitely long period. The complainant wrote a letter dated 31.03.2010 to the OPs regarding this undue delay stating therein “I am incurring heavy interest on the investments made for the shop,  I am therefore, not interested to retain my capital for uncertain and indefinite period and therefore request your goodself to refund me my capital alongwith interest  18% p.a. immediately”. Aggrieved against this, the complainant approached the District Forum for the refund of the entire amount deposited by her along with interest, compensation and litigation charges

3.      Pursuant to notice, the opposite party pleaded that the allotment of shops/cabins and all matters connected with it were governed by the provisions contained in HSAMB (Sale of immovable property) Rules, 2000/ PAPM Act, 1961 or regulations framed by the Board from time to time. All disputes with regard to allotment should have been referred to the Sole Arbitration of the Chief Administrator, whose decision was binding on the concerned parties.  The construction of Agro Mall was allotted to M/s Singla Construction Company on 10.04.2008 but being not satisfied with the progress M/s Singla Construction Company, the Ops had engaged M/s Design and Development Forum as consultant for this project. As they stopped providing the complete drawings as per HUDA/National Building Codes norms and ultimately the contract with them was terminated.  In the meeting of Ops conducted on 08.04.2010 it was decided that New consultant be engaged after following the proper procedure; Zoning plan be approved from HUDA; work of construction company be finalized and fresh tenders be called after preparation of the detailed drawing and detailed project. Thereafter M/s Inner Value, Chandigarh was appointed as new consultant and contract was executed on 11.10.2010. Zoning plan was approved by the HUDA on 20.07.2010 and revised plan was approved on dated 30.09.2011 and after this the work was allotted to M/s S.G.Constructions on 29.03.2012 which was likely to be completed in September, 30, 2015. The grievance of the complainant regarding handing over of possession was likely to be redressed very soon and the payment of installments, as provided in the allotment letter had no co-relation with the construction/ completion of Agro Mall. As per the terms and conditions of the allotment letter dated 18.05.2009 the allotment was liable to be cancelled on non-payment of the remaining installments.  The complainant was bound to pay the installment as per the prescribed schedule though she was entitled for due concession if offer of possession was not delivered at the time of due date of any installment as provided in Clause 4 of the Allotment letter. The Board of Directors, HSAMB after considering the grievances of the allottees granted relief such as, payment on installment be  re-scheduled with effect from 15.11.2011 to 15.05.2014. That if any allottees had made excess payment, the same shall be adjusted in the next installments; and that if the allottees had made the entire payment then simple interest equal to bank rate of Reserve Bank of India (R&R) shall be paid to the allottees on his amount. Other plea allegations of the complainant were without any basis and the complaint deserves to be dismissed.

4.      However, the learned District Forum rejected the plea of the OPs and allowed the complaint by awarding the aforesaid relief to the complainant.  

5.      Against the impugned order, the OPs/appellants have filed appeal before us reiterating their pleas as raised before the District Forum. We have heard the learned counsel for the parties and have also gone through the record. From a close study of the pleadings of the parties it is apparent that the complainant with full knowledge proceeded to make a heavy investment of Rs.32,00,000/- on the purchase of a shop cum office in the Agro Mall at Panchkula. The capital was invested by her obviously for earning profit and not for mere subsistence and livelihood. It is evident from the letter dated 31.03.2010 that the complainant stated in a clear and unequivocal words that  “I am incurring heavy interest on the investments made for the shop,  I am therefore, not interested to retain my capital for uncertain and indefinite period and therefore request your goodself to refund me my capital alongwith interest 18% p.a. immediately”. Therefore, the sole purpose of making this investment was certainly not for livelihood but for a commercial purpose  i.e. earning profit I the business. The law on the subject is stands settled by the Hon’ble National Disputes Redressal Commission in the case of M/s JCB India Ltd.Vs M/s Chandan Traders etc.- Revision Petition No.4178 of 2009 decided on 19.02.2015. The Hon’ble National Commission has laid down that the simple averment that the complainant had made the investment in dispute for her livelihood was not enough to bring the complaint within the preview of the Consumer Protection Act, and it was incumbent upon the complainant to have pleaded and proved that it was for earning livelihood by means of self employment.

The relevant extract from para No.6 of the Order reads as under:-

          “The onus was on the complainant to prove that the machine in question was not only bought but also used by him exclusively for the purpose of earning his livelihood by means of self-employment. In fact, the complainant did not even claim that the machine was bought for earning livelihood by means of self-employment. In the absence of averment and evidence to the effect that the complainant had used either himself or with the aid of an employee the machine for the purpose of earning his livelihood by means of self-employment he would not come within the purview of the explanation attached below Section 2(1)(d) of the Consumer Protection Act at the relevant time. In our opinion, it was not sufficient for the complainant to claim that he had purchased the machine for his livelihood purpose. He ought to have pleaded and proved that it was for earning livelihood by means of self-employment. More importantly, he was also required to plead and prove that the machine was used by him either personally or through some employee engaged by him. That having not been done there is no escape from the question that the complainant cannot be said to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, as regards JCB machine purchased by him. The complaint is liable to be dismissed on this short ground alone.”

6.      In view of the aforesaid factual and legal position, we hold that the complaint is not maintainable under the Consumer Protection Act, as the complainant is not a Consumer and he has made the investment for commercial purpose. Consequently, we allow the appeal and set aside the Order passed by the learned District Forum, Panchkula by dismissing the complaint being not maintainable under the Consumer Protection Act. The complainant if so advised may seek her remedy before the appropriate Court, as per law. 

7.      Statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.

 

May, 17th 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

R.K.