Chandigarh

DF-II

CC/965/2021

Asha Kumar - Complainant(s)

Versus

Sushma Buildtech Ltd. - Opp.Party(s)

Adv. Narender Pal Bhardwaj & Prabhleen Kaur

01 May 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Misc. Application in Consumer Complaint No. Date of Institution	: :	965/2021 20.12.2021
Date of Decision	:	01.05.2024

 

                                       

 

 

1.     Asha Kumar aged 49 years w/o Arun Kumar R/o H.No.G.H 76, Sector-20, Panchkula, Haryana

2.     Rajesh Khosla aged 42 years S/o Ram Lal Khosla R/o H.No 209, Punjabi Bagh, Patiala, Punjab-147001

3.     Lalit Kumar Wadhwa aged 62 years S/o Sh. V.P Wadhwa,

4.     Hardeep Wadhwa aged 62 years W/o Lalit Kumar Wadhwa

Complainant No. 3 & 4 is R/o H.No 1656, Sector 21, Panchkula, Haryana-134116

5.     Kulbhushan Kumar Manrai aged 72 years S/o Sh. Inder Pal Manrai

6.     Sushma Manrai aged 70 years W/o Kulbhushan Kumar Manrai

7.     Aseem Manrai aged 41 Years S/o Kulbhushan Kumar Manrai

Complainant No. 5 to 7 are R/o H.No. 1257, Sector-21, Panchkula.

8.     Satinder Singh Kataria aged 44 years S/o Surjit Singh Kataria R/o H.No.12/856 Chowra Bazar Karnal, Haryana.

9.     Vinay Sethi aged 59 years S/o Raj Kumar Sethi R/o G-207, Ivory Towers Sector-70 Mohali.

Complainants No. 8 & 9 are through their POA Holder i.e. Anjum Sethi W/o Vinay Sethi R/o G-207, Ivory Towers Sector-70 Mohali.

10.   Anita Bhatia aged 65 years W/o Colonel Pankaj Roy Bhatia

11.   Pankaj Roy Bhatia aged 69 Years S/o Late Sh. Dharam Pal Bhatia.

Complainant No. 10 & 11 is R/o H.No. 4703, Jalvayu Vihar, GH-4- A, Sector-20, Panchkula, Haryana-134116.

12.   Pawan Kumar Jain aged 73 years S/o Late Shri Ishwar Dass Jain.

13.   Sudha Jain aged 70 years W/o Pawan Kumar Jain

Complainant No. 12 & 13 is R/o H.No. 1207, Sector-19B, Chandigarh-160009.

14.   Chandrika Malpani aged 58 years W/o S.K. Malpani

15.   Abhishek Malpani aged 33 years S/o S.K. Malpani

Complainant No. 14 & 15 is R/o #3036, Top Floor, Sector-27-D, Chandigarh.

16.   Subodh Gupta aged 64 years S/o Brij Bhushan Gupta

17.   Manju Gupta aged 61 years w/o Subodh Gupta

Complainant No. 16 & 17 is R/o H.No 689, Sector 12-A, Panchkula, Haryana-134109.

...COMPLAINANTS

VERSUS

1.     SUSHMA BUILDTECH LIMITED. (CIN: U70100CH2005PLC028728) Through its Directors Registered & Corporate Office: Unit No. B-107, Business Complex-Elante Mall, First Floor, Industrial Area, Phase-I, Chandigarh-160009.

2.     MANHATTAN INFRA SERVICES PRIVATE LIMITED. (CIN: U45209CH2012PTC034232)      Through its Directors

I.      Registered Address as published on www.mca.gov.in: Unit No. B-107, Business Complex-Elante Mall, First Floor, Industrial Area, Phase-I, Chandigarh-160009.

II.     Registered Office Address as given on Maintenance Agreement: #5069-B, Sector 38, West, Chandigarh-160038.

3.     MUNICIPAL COUNCIL ZIRAKPUR through its Executive Officer #403, Gaushala Road, Preet Colony, Zirakpur, Punjab 140603

…. Opposite Parties

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Narender Pal Bhardwaj, Counsel for the complainant Sh.Vishal Singal, Counsel for OPs No.1 and 2 Sh.Rahul Verma, Counsel for OP No.3

       

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.         By this common order, we are disposing off the misc. application filed by OPs No.1 and 2 for dismissal of the complaints in which the common questions of law and facts are involved, the details of which is as under:-

Sr. No.	Case No.	Particulars of the case.
1.	CC No.965/2021	Asha Kumar and Others Vs. Sushma Buildtech Ltd. and Others
2.	RBT/CC No.595/2023	Rajesh Sood and Others Vs. Sushma Buildtech Ltd. and Others

2.         The facts are gathered from C.C.No.965/2021 - Asha Kumar and Others Vs. Sushma Buildtech Ltd. and Others.
3.         The application has been filed by OPs No.1 and 2 for dismissal of the complaint being non-maintainable under section 2(7), section 2(42), section 34(1), section 47(1)(a)(ii) and other provisions of the consumer protection act, 2019 and, for rejection of rejoinder filed by the complainants in the absence of any such provision for filing of a rejoinder in the consumer protection act, 2019 and imposing punitive costs upon the complainants for filing a false and frivolous complaint.  It has been stated that the complaint is not maintainable as the complainant are not a "consumer" as envisaged under Section 2(7) of The Consumer Protection Act, 2019 which clearly excludes a person to be a "consumer" who obtains such goods for resale or for any commercial purpose; or a  person who avails any service for any commercial                     purpose. It is further specifically provided in explanation (a) to Section 2(7) that 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. The complaints having invested in the commercial project of the respondents and for making commercial gains are thus not a consumer as defined in Section 2(7) of The Consumer Protection Act, 2019. It has further been submitted that  the complainants have challenged the provisions and terms and conditions of the executed agreements being unfair trade contracts.  Section 47 (1)(a)(ii) of the Consumer Protection Act, 2019 stipulates that where the complaints are filed by making allegations of unfair contracts, the value of goods or services paid as consideration does not exceed ten crore rupees; the complaint is only maintainable before the Hon'ble State Commission and as such the District Commission has no jurisdiction to entertain the present complaint as it is only the Hon'ble State Commission which can adjudicate the complaints relating to unfair contracts under section 47(1)(a)(ii) of the Consumer Protection Act, 2019.

                It has further been submitted that the commercial unit has been purchased in a commercial project and is per se not included in the definition of a "service" as defined in Section 2(42) of The Consumer Protection Act, 2019 which defines a "service" as, "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, telecom, boarding 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.

                It has further been submitted that the complainants had been regularly receiving assured returns on their commercial investment and it has been held by the Hon'ble Courts specially by the Hon'ble National Commission in various judgments that if a transaction done is coupled with assured returns, it would be treated as for commercial purpose and the complainant is thus not a consumer as defined under Section 2(7) of the Consumer Protection Act. It has further been submitted that the complaint is not maintainable under the provisions of Order 1 Rule 8 of the Code of Civil Procedure and also under the provisions of Section 47(1) (a)(ii) read with Section 49(2) of the Consumer Protection Act, 2019.  It has further been submitted that this Commission has got no pecuniary and territorial jurisdiction to adjudicate the present complaint in view of Section 34 of the Consumer Protection Act, 2019.  In the last, the OPs No.1 and 2 prayed for dismissal of the complaint along with punitive costs.

4.         The said application filed by OPs No.1 and 2 has been opposed by the complainants by filing reply to the same. It has been stated that that the same is nothing but a repetition/replica of their reply; that the same is misuse and abuse of the process of law and wrongful tactics of
   the OPs No.1 and 2;  that the same has been filed to delay the proceedings of the case; that OPs No.1 and 2 are deliberately misguiding, confusing and misleading the Commission so as to divert the present case from the main issue;  that the contents of the rejoinder may be read as part and parcel of the reply; that this Commission has got the pecuniary and territorial jurisdiction to enter the present complaint as per Section 34(1) of the Act;  that the complainants have neither challenged the buyer’s agreement nor the allotment letter nor any other agreement executed between the promoter or complainants being unfair contract; that Section 79 of the RERA Act does not have any role to play in the facts and circumstances of the case; that the complainants are consumer as they have purchased the respective units for their livelihood and sustenance. In the last, the complainants have prayed for dismissal of the application.
5.         We have heard the Counsel for the parties  on the maintainability of the complaint as well as pecuniary jurisdiction and have gone through the documents on record.
6.         The applicants/OPs No.1 and 2 have filed the application for the dismissal of the complaints on the ground that Section 47 (1)(a)(ii) of the Consumer Protection Act, 2019 provides that where the complaints are filed by the complainants by making allegations of unfair contracts, the value of goods or services paid as consideration does not exceed ten crore rupees there the  complaints are only maintainable before the Hon'ble State Commission and the Hon'ble District Commission has got no jurisdiction to entertain the complaint as it is only the Hon'ble State Commission who can adjudicate upon the complaints relating to unfair contracts under section 47(1)(a)(ii) of the Consumer Protection Act, 2019.
7.         The Hon'ble State Commission, Punjab in its judgment in CC/235/2020 titled as Madhavi Sinha & Ors Vs Gaursons Realtech Pvt. Ltd. & Ors decided vide order dated 02.03.2021 has held that only the Hon’ble State Commissions and the Hon’ble National Commissions have got the pecuniary jurisdiction to entertain the complaints under section 47(1)(a)(ii) of The Consumer Protection Act, 2019.  The relevant part (Para.34) of the said judgment is reproduced as under:-

        "34.          Thus, the State Commission under section 47(1)(a)(ii) read with section 49(2) of the Act has pecuniary jurisdiction to entertain and determine the issue of unfair contract and can declare any term of the contract, which is unfair, as null and void. Hence, we hold that this Commission has pecuniary jurisdiction to hear the present complaint, though the value of goods or services paid as consideration is Rs.18,16,425/-, as under Section 47 (1) (ii) of the Act, no minimum value Consumer Complaint No.235 of 2020 33 of goods or services paid as consideration has been fixed and challenge to the unfair terms of contract is made. It is immaterial what amount the Complainants have paid. It has been specifically prayed to declare the Allotment Letter dated 19.09.2014 (Ex.C-1) as null and void being 'unfair contract. Specific averments regarding the unfair and one-sided clauses in the Allotment Letter have also been raised. The Act gives power to the State Commission and National Commission to examine the unfair terms of the Contract. Only State Commissions and National commissions have power to declare the unfair contract null and void. This power has not been conferred on the District Commissions under the Act."

8.         In the present complaints, the complainants have made specific averments towards imposing unfair terms upon the complainants.  In view of Section 47(1)(a)(ii) of the Consumer Protection Act, 2019, the power to declare any term of the contract, which is unfair, as null and void is vested either with the Hon'ble State Commission  or the Hon’ble National Commission and not with the District Commission. As per this provision, where the value of the complaint is upto Rs.10.00 crores under the Consumer Protection Act, 2019 then the power is conferred with the Hon’ble State Commission and where the value of the goods or services paid as consideration more than Rs.10.00 crores under the Consumer Protection Act, 2019 there the power is conferred upon the Hon’ble National Commission. However, no power is granted to this Commission to declare any term of the contract, which is unfair as null and void.
9.         For the reasons recorded above, the  application under consideration filed by the applicants/OPs is accepted and both the complaints filed by the complainants are dismissed being not maintainable. However, the complainants are at liberty to avail other remedies as available to them under the Act/law.
10.         Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced in open Commission 01.05.2024
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/-
	(B.M.SHARMA) MEMBER