PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          This complaint has been filed by the complainants against OP.

2.      Brief facts of the case are that complainant is a public charitable trust registered under the Indian Trust Act and is engaged in economic, cultural, educational, and social activities.  Complainant purchased land measuring 4½ acres situated at Survey No. 3, Hissa No. 1/5 and 1/6, situated at Ambode Village, Taluka Vasai, District Thane from OP No. 2 for the consideration of Rs. 1,15,65,000/- for the purpose of construction of building for school, college and university and conveyance deed was executed on 7.12.2007.  OPs were entrusted construction work and OP commenced construction work in January, 2009 at a slow speed.  Complainant applied for term loan to Central Bank of India which sanctioned term loan of Rs. 8.48 crores for setting up of Residential-cum-Day School.  Complainant requested Central Bank to release Rs.2,54,25,000/- to make payment to the OP and other contractors and complainant made payment of Rs. 1 crore to OP vide cheque dated 1.1.2009. In para ‘K’ of the complaint, details of Rs. 1,54,25,000/- disbursed by Central Bank to the complainant has been given. It was further submitted that as per understanding between the parties construction was to be completed before starting session from June, 2010, but as construction was found only upto plinth level, complainant complained to the OP and OP’s employees in the late evening came in drunken state along with 15-20 people and started beating security guard with iron rods and pipes; so, FIR was lodged.  OP stropped construction work and threatened to the trustees of the complainant. Complainant assigned construction work to new contractor on 23.9.2009 and construction work was commenced by him at the site, but OP resorted to regularly giving threats to the complainant and new contractor; so, construction work could not be carried out.  OP filed Civil Suit No. 406/2009 for cancellation of sale deed and prayed for temporary injunction, but application for temporary injunction was dismissed. It was further submitted that as per para 10 of the complaint, complainant incurred expenses of Rs. 1,38,45,460/- and as per para 11 of the complaint complainant will be incurring expenditure of Rs. 5,00,80,527/- towards project.  Alleging deficiency on the part of OP, complainant filed complaint with a prayer to direct OP to reimburse Rs.1,15,65,000/- with 12% p.a. interest and further to pay Rs.1,54,25,000/- + Rs.1,38,45,460/- along with 12% p.a. interest + Rs.5,00,80,524/- as expenditure to be incurred and Rs.35 lakhs towards mental agony.

3.      OPs resisted complaint and submitted that complaint is false, frivolous and vexatious. It was further submitted that complainant does not fall within purview of consumer, as contract for construction of school, college and hostel was for commercial purposes. Complaint is bad for mis-joinder of parties and misjoinder of cause of action. It was further submitted that complainant has not hired services of OPs and this Commission has no jurisdiction to grant the prayers, as question of validity of sale deed is subjudice in competent court of original jurisdiction and it was further pleaded that till decision of Civil Suit No.

406/2009 pending in the Court of Civil Judge proceedings be stayed.  It was further submitted that complicated questions which require elaborate evidence cannot be decided in summary proceedings; hence, complainant be asked to approach civil court.  It was further alleged that conveyance deed dated 7.12.2007 is whithout consideration and possession of plot is still with OP No. 2. It was further pleaded that on the request of Diniar D. Mehta, OP returned back Rs. 50,00,000/- in cash on the promise that Mr. Mehta would repay the amount, but this amount has not been paid so far.  OP No. 2 also made payment of Rs.50,00,000/- in cash from time to time to complainant.  As Complainant had not made payment, there was no other alternate for OP No. 1 except to stop construction work at the site. It was further pleaded that from the very beginning, Mr. Mehta had no intention to purchase the said plot of land owned and possessed by OP No. 1, but had intention to cheat him. It was further pleaded that security personnel on the site picked up the quarrel with Mr. Kiran, employee of OP No. 1 and beat him for which, FIR was lodged by Mr. Kiran.  OP admitted dismissal of application for interim injunction by civil court, but submitted that main civil suit is still pending; so, complaint was not maintainable before this Commission and prayed for dismissal of complaint.

4.      Complainant filed affidavit of CW 1 D.D. Mehta, CW 2 Smt. S.D. Mehta, CW 3 Dr. J.A. Adajania, CW 4 Shankerrao Limbajirao Wakulnikar, CW 5 Cyrus D. Unwalla & CW 6 M.P. Sharma in his evidence and OP filed evidence of OP No. 2 by way of affidavit.

5.      Heard learned Counsel for the parties and perused record.

6.      Learned Counsel for the complainant submitted that OPs failed to construct as per contract inspite of receiving consideration and committed deficiency; hence, complaint be allowed and compensation be awarded along with refund of sale consideration of plot with interest. On the other hand, learned Counsel for the OPs submitted that complaint was not maintainable, as complainant does not fall within purview of ‘consumer’ and as complainant has not made payment regarding conveyance deed executed by OP No. 2 and for cancellation of conveyance deed civil suit as pending with civil court, complaint is not maintainable.  It was further submitted that looking to the various objections of OP, elaborate evidence is required which cannot be dealt in summary proceedings; hence, complainant be directed to approach civil court and prayed for dismissal of complaint.

7.      First of all, it is to be seen whether complaint filed by complainant is maintainable. Admittedly, “The D.D. Mehta Memorial Trust” has filed complaint against OPs. 

8.      The core question to be decided is whether Trust can file complaint under Consumer Protection Act?

9.      This Commission in IV (2007) CPJ 33 NC – Pratibha Pratisthan Vs. The Manager,  Allahabad Bank, after elaborate discussion observed that complaint filed by Trust is not maintainable. It was further observed that as complaint was not filed by all the Trustees, complaint was not maintainable.  Section 2 (1) (d) of the C.P. Act defines “consumer means any person” and ‘person’ has been defined under Section 2 (m) of the Act which includes a firm, a Hindu Undivided family, a co-operative society and every other association of persons, but it does not include anywhere Trust.  Learned Counsel for the complainant submitted that Trust is included under a person as per General Clauses Act. This argument is devoid of force because when ‘person’ has specifically been defined under C.P. Act, help of General Clause Act cannot be taken and definition of ‘person’ has to be confined only to the extent mentioned under Section 2(m) of the Act. This Commission in another Complaint Case No. 929 of 2015 – M/s. Logix Blossom Greens Buyers’ Welfare Association Vs. M/s. Logix Infratech Pvt. Ltd. & Ors., while following Pratibha Pratisthan (supra) case observed that complainant association is a Charitable Trust which does not fall within definition of ‘consumer’; hence, complaint was not  maintainable. In the case in hand, as complaint has been filed by a Trust that too without impleading all the Trustees of Trust as already complaint filed by complainant is not maintainable and liable to be dismissed.  

10.    It is not disputed that civil suit filed by OP against complainant is pending in civil court regarding cancellation of conveyance deed and in such circumstances, this complaint for the same relief is not maintainable because, if civil court cancels conveyance deed then complainant may not be entitled to any relief claimed in the complaint because all other reliefs pertain to construction on the disputed plot and receipt of consideration for sale of plot is under challenge before civil court.

11.    OP has pleaded that time to time OP made payment to the complainant in cash after receiving payment through cheque from the complainant, though, complainant denied all these facts, but certainly it requires elaborate evidence and such complicated issues cannot be decided by this Commission in summary proceedings and in such circumstances, complaint is not maintainable before this Commission.

12.    In the light of aforesaid discussion, it becomes clear that complaint filed by complainant is not maintainable before this Commission and is liable to be dismissed with liberty to approach civil court.

13.    Consequently, complaint filed by complainant is dismissed with liberty to the complainant to approach civil court for redressal of his grievances.  Parties to bear their costs.