DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.165/2020
Varun Achal Talwar
R/o B-5/16, TDI City, Kundli
Sonipat, Haryana-131023
...Complainant
Versus
- TDI Infrastructure Ltd.
10, Shaheed Bhagat Singh Marg,
Gole Market, New Delhi
Also At: Unit No.15, First Floor,
Rodeo Drive Mall, Kundli, Sonipat,
Haryana-131023
- Cannes Property Management Services Pvt Ltd
10, Shaheed Bhagat Singh Marg,
Gole Market, New Delhi-110001
Also At: Unit No.18, First Floor,
Rodeo Drive Mall, Kundli, Sonipat,
Haryana-131023
- Sanjiv Gambhir, Authorised Person
Cannes Property Management Services Pvt Ltd
10, Shaheed Bhagat Singh Marg,
Gole Market, New Delhi-110001
Also At: Unit No.18, First Floor,
Rodeo Drive Mall, Kundli, Sonipat,
Haryana-131023
….Opposite Party
Date of Institution : 30.09.2020
Date of Order : 04.12.2024
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Complainant in person
Adv. Abhishek Das, Proxy counsel on behalf of Adv. Vaibhav Agnihotri for OP-1 on VC.
Adv. Santosh Singh for OP-2 and OP-3
ORDER
Member: Ms. Kiran Kaushal
1. Instant complaint is filed by the complainant against TDI Infrastructure Limited (OP-1), Cannes Property Management Services Pvt Ltd (OP-2) and Sh. Sanjeev Gambhir (OP-3) .Complainant on the strength of his complaint has prayed for directions to OP -
- To pay an amount of Rs.4,50,000/- as a compensation for the deficiency in service and the loss caused due the theft due to deficiencies on part of the OP’s
- To pay compensation totaling to Rs.3,00,000/- for loss of reputation due to incapacity to appear before courts, mental agony, harassment, inconvenience and litigation cost to the complainant by opposite party due the deficiency in services.
- To grant ad interim relief retraining the opposite parties from demanding the arbitrary maintenance amount till the time the present complaint is decided and the said deficiencies in the services as stated above are cured.
- Pass such other or further relief which this Hon’ble Commission deems fit in the facts and circumstances of the present complaint and in favour of Complainant.
2. The said complaint was filed on 22.10.2020 as there was a theft in the said property on 14.02.2020 and an FIR dated 15.02.2020 was registered in Kundali, District Sonipat. It is stated that all the valuables from the office in the said premise were stolen by the thieves due the lack of security and electricity due to deficient services provided by the OPs. Complainant alleged that cash of Rs.50,000/-, Computer, Printer, Television, Home Theater, Camera, CCTV, Microwave, Gas Stove and other articles were stolen by thieves due to lack of security, electricity and proper infrastructure.
3. It is next stated that OP-3 had assured that the loss caused due to theft would be compensated and had agreed to pay an amount of Rs.1,40,000/- towards the same. It is stated that written mutual compromise was executed on 20.03.20 between the complainant and OP-3, however no such compensation was ever paid.
4. An application dated 16.08.2023 is filed on behalf of OP-2 and OP-3 seeking dismissal of the complaint being not maintainable.
5. It is stated that the instant complaint is not maintainable against OP-2 and OP-3 as the same is hit by the principle of Res judicata. The complainant Varun Achal Talwar has pursued parallel proceedings basis same material facts, documents, cause of actions and matter directly and substantially in Civil Suit No. CS SCJ594/2020 between the same parties before Hon’ble Court of Civil Judge, New Delhi in the case titled as ‘Varun Achal Talwar Vs M/s Cannes Property Management Service Pvt Ltd and Ors.’ . Hon’ble trial court after a detailed trial proceedings involving examination of witnesses, appreciation of evidence etc dismissed the suit of the complainant vide its final order dated 19.11.2022.
6. It is reiterated that material facts and grievances raised by the complainant before the Ld. Civil Court and the Commission are identical in nature and is therefore, hit by the principle of Res judicata.
7. It is next stated that the complainant is not a consumer within the meaning as defined in Consumer Protection Act, 2019 as complainant has failed to adduce any document/evidence to show that he has availed the services of OP-2 against consideration. There is no privity of contract between the complainant and OP-2 as no consideration has been paid to OP-2. There is no maintenance agreement between complainant and OP-2, as the last maintenance charge was paid in 2014 by the erstwhile owner Ms. Vivette Khanna.
8. It is next submitted that the instant complaint is barred by limitation under Section 69 of CPA, 2019. It is stated that complainant in Para No.2 of the complaint has stated that the property was allegedly purchased by the complainant in the year 2016. The present complaint has been filed in the year 2020 with the delay of over nine years and thus is barred by limitation.
9. It is further stated that the property in question is located in Haryana qua which the complainant alleges that OPs have failed to provide adequate services and facilities. Therefore, this Commission does not have the territorial jurisdiction to entertain the instant complaint.
10. It is next stated that the present complaint inter alia is also barred under Order 7 Rule 11 CPC as the complaint does not disclose the cause of action.
11. In light of the facts stated above, it is prayed that the complaint be dismissed with costs.
12. Complainant filed reply to the said application stating inter alia that Res judicata applies to Suits and not complaints as the proceedings before the Commission are summary in nature. Complainant has placed his reliance on State of Gujrat Vs Gujrat Revenue Tribunal Bar Association, AIR 2013 SC107 wherein Hon’ble Supreme Court has held that the tribunals perform quasi judicial functions and can exercise only certain powers under the civil or criminal procedure code. References is also made to Surender Singh and Anr Vs M/s Multitech Towers Pvt Ltd by Hon’ble SCDRC. It is stated that the question of law, issues and the relief sought by the complainant in the Civil Suit mentioned above is totally different from the complaint filed before the Commission.
13. It is next stated that there was a written compromise by OP-2 and OP-3 to compensate for the loss caused due to theft which occurred in the dwelling house on 14.02.2020. Above mentioned suit was filed for the execution of written compromise dated 20.03.2020 and for recovery of amount of Rs.1,40,000/-. Complainant did not pray for any compensation for deficiency in service and has also not prayed for ad interim relief restraining OPs to demand arbitrary maintenance amount.
14. Complainant has denied that complainant is not a ‘consumer’ under Section 2(7) of the Consumer Protect Act, 2019. It is stated that complainant no.2 had executed the Plot Buyer Agreement with OP-1 and Maintenance Agreement with OP-2 and the complainant now is also one of the owners of the said property.
15. It is vehemently denied by the complainant that this Commission does not have the territorial jurisdiction under Section 34 of the Act. In this regard reference is made to the judgment passed by Hon’ble NCDRC tilted Emaar MGF Land Limited Vs Kishan Manchanda in FA No.426 or 2017 and by Hon’ble SCDRC, Delhi in the matter titled as Archna Mittal Vs Logics Groups and Ors in FA No.477/2019 wherein it is held that if the registered office of OP is situated in Delhi then the consumer complaint could be filed at Delhi because OP is carrying on its business at Delhi in addition to other places.
16. It is also denied that the said complaint is barred under Order 7 Rule 11 CPC, 1908 as the said provision provides for rejection of plaint and the present complaint is not a plaint for the purpose of adjudication of a Civil Court.
17. It thus prayed that the prayer clause of the application being false is denied and the contents of the prayer clause of the complaint are reiterated.
Heard.
18. OP in his application has raised various objections/submissions on maintainability of the complaint and basis those objections seeks dismissal of the complaint.
19. The numerous objections raised by OP are -
- There is no privity of contract between the complainant and OP-2
- Complainant is not a consumer as no consideration was paid by the complainant to OPs
- Complaint is barred by limitation.
- There is default in payment of CAM Charges since 2014 .
- Complaint is hit by the principle of Res judicata.
- The Commission does not have the jurisdiction entertain the present complaint.
20. The point of jurisdiction being peremptory in nature is decided first. It is noticed that the complainant is the resident of Sonipat, Haryana and OP-1 and OP-3 have their registered office in Gole Market, New Delhi . Complainant along with his complaint has filed a Performa invoice dated 01.04.2014 wherein it is seen that the customer, Ms. Vivette Khanna was asked to pay Rs.8,427/- at the service site of OP-2 which is situated in District Sonipat. Receipt of the same shows that Ms. Vivette Khanna resides in Andheri West, Mumbai. An FIR is appended at Page 24 of the complaint which shows that FIR was registered at Kundali in Sonipat.
21. The question of territorial jurisdiction is settled by Apex Court in the case of Sonic Surgical Vs. National Insurance Company Ltd (IV) 2009 CPJ 40. In the said judgment it was held that the clause of Territorial Jurisdiction under Consumer Protection Act has to be interpreted in such a way which does not lead to absurd consequences and bench hunting. It was observed that the expression ‘branch office’ in the amended section 17 (2) would mean the branch office where the cause of action arises.
22. It was clarified that the commission can entertain the complaint where the “branch office” of OP is situated, only if the cause of action had also arisen in that branch office. Mere existence of branch office would not confer jurisdiction. Hon’ble NCDRC in the matter of Sarvesh Kumar Singh vs Kailash Healthcare Hospital 2019(3)CPR 627 opined that territorial jurisdiction vests with the commission where cause of action has arisen.
23. From the documents appended with the complaint, it is noticed that no cause of action has arisen within the jurisdiction of this Commission. Hence complaint is not maintainable for want of territorial jurisdiction.
24. Qua OP-1, it is observed that the property in question was sold by OP-1 to one Ms. Vivette Khanna. Though, an amended memo of parties is found filed wherein Ms. Vivette Khanna is referred to as complainant No.2. The said amended memo of parties was never taken on record. She has neither deposed nor tendered any evidence .She has not signed anywhere either in the complaint and / or pleadings. Therefore Ms Vivette Khanna cannot be added as Complainant no-2 in the array of parties. From the facts stated above it is clear that there is no privity of contract between the Complainant and OP-1therefore no case is made out against OP-1.
25. It is evident that complainant had no privity of contract with OPs as property in question was not purchased from OP-1, no maintenance agreement was signed between the complainant and OP-2 or OP-3 . Complainant is stated to have purchased the property in the year 2016 but has not placed anything on record to prove any consideration was ever paid to OP-2 or OP-3. Therefore we are of the opinion that Complainant does not fall under the definition of a ‘consumer’ .
26. Section 7(ii) of Consumer Protection Act, 2019 reads as under-
“Consumer” means any person who-
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 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
27. In light of the discussion above, the complaint fails on various accounts hence, is dismissed.
Parties be provided copy of the judgment as per rules. File be consigned to the record room. Order be uploaded on the website.
