Chandigarh

DF-I

CC/56/2015

Colonel SK Malhotra - Complainant(s)

Versus

Emaar MGF Land Limited. - Opp.Party(s)

A.S. Walia

27 Jul 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/56/2015
Date of Institution	:	30/01/2015
Date of Decision	:	27/07/2015

 

 

1.      Colonel S.K.Malhotra son of Maj.C.L. Malhotra, resident of D-57, Army Flats, MDC, Sector 4, Panchkula.

2.      Ms.Krishna Malhotra wife of Colonel S.K.Malhotra, resident of H.No.D-57, Army Flats, MDC, Sector 4, Panchkula.

…..Complainants

V E R S U S

 

Emaar MGF Land Limited, SCO 120-122, Sector 17-C, Chandigarh through its Managing Director.

……Opposite Party

 

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

                                                                                       

                       

ARGUED BY	:	Sh.A.S.Walia, Counsel for Complainants.
	:	Sh.Sanjeev Sharma, Counsel for OP.

                       

PER P.L.AHUJA, PRESIDENT

1.             Colonel S.K.Malhotra and his wife Mrs.Krishna Malhotra have filed a joint consumer complaint against Emaar MGF Land Limited, Opposite Party (hereinafter called the OP) alleging that they were allotted a 250 sq. yard plot No.99-EP-250 in the project Mohali Plots at Mohali Hills vide allotment letter dated 30.10.2013, copy of which is Annexure C-1, for a price of Rs.62,50,000/- and they are consumers as defined under the Consumer Protection Act. It has been contended that the complainants were issued letter dated 31.10.2014 (Annexure C-2) in respect of intimation of possession and a demand of Rs.56,15,542/- was made under various heads. The complainants have made a prayer that demand of Rs.1,12,360/- towards club membership is liable to be waived because they do not want any new club membership. It has been alleged that forcing the complainants to take membership of the club is an unfair trade practice.

2.             Notice of the complaint was given to the OP. OP instead of filing reply and evidence has filed an application for dismissal of the complaint alleging that the complainants have purchased two units with the OP for which two complaints have been filed and complainants are not consumers, hence, this complaint is not maintainable.

3.             The application has been opposed by the complainants on the ground that they had purchased the flat in Mohali hills in the year 2008 and from the year 2008 to 2013 they never applied for another plot/flat. It has been contended that subsequent plot purchased by the complainants in the year 2013 was necessitated by the divorce of their daughter who is presently living with them. It has been further contended that complainants are genuine customers and they applied for the second plot not with an intention to make a profit by selling it.

4.             We have gone through the material on record and heard the arguments addressed by the learned counsel for the parties on the application for dismissal of the complaint.

5.             The learned counsel for OP has placed reliance on judgments titled ‘Ved Kumari V. Omaxe Buildhome Pvt. Ltd.’ (NCDRC) 2014(2) C.P.J. (N.C.) 146, ‘Smt.Madhu Saigal & anr. vs. M/s Omaxe Buildhome Pvt. Ltd. & anr.’ Consumer Complaint No.270 of 2013 decided on 20.03.2014 by the Hon’ble National Commission, ‘Sunil Gupta vs. Today Homes & Infrastructure (Pvt.) Ltd.’ in Consumer Complaints No.5 of 2014 and No.6 of 2014 decided on 03.02.2014 by the Hon’ble National Commission, and has contended that complainants have filed one complaint No.94 of 2015 regarding residential unit No.J3-F-504 Tower No.J and also a consumer complaint No.56 of 2015 (present complaint) in respect of Plot No.99-EP-250 and as per law laid down by the Hon’ble National Commission when a consumer has booked more than one unit of residential premises, it amounts to booking of such premises for investment/commercial purpose. The learned counsel for OP has vehemently argued that complainants do not fall under the definition of “Consumer” as defined under Consumer Protection Act and they are investors and not consumers.

6.             On the other hand, the learned counsel for complainants  has  contended that complainants do not want to  sell  the plot but have to build a house for their daughter who is now divorced and living with them.  It has also been contended that after the purchase of the flat in the year 2008, an application for allotment of present plot was made in the year 2013 because due to estranged relation with her husband, the daughter of the complainants came to live with them. It has also been contended that later on daughter of the complainants had to take a divorce with mutual consent from her husband.

7.             We have given our thoughtful consideration to the rival contentions of the learned counsel for the parties. So far as residential Unit No.J3-F-504 Tower No.J which was purchased by the complainants in the year 2008 is concerned, we have separately held that complaint filed by the complainants is maintainable. However, the present complaint No.56 of 2015 relating to Plot No.99-EP-250 purchased by the complainants vide allotment letter dated 30.10.2013 stands on a different footing. Admittedly, the complainants had earlier purchased residential unit No.J3-F-504 Tower No.J in the year 2008 and on 30.10.2013 they purchased Plot No.99-EP-250 from the OP. In ‘Ved Kumari v. Omaxe Buildhome Pvt. Ltd.’ 2014(2) C.P.J. (N.C.) 146, the Hon’ble National Commission referred ‘Chilkuri Adarsh vs. ESS ESS VEE Constructions’ (2012) 3 CPJ 315, wherein it was held that when a consumer has booked more than one unit of residential premises, it amounts to booking of such premises for investment/commercial purpose. In the said judgment, reference was also made to ‘M/s Moran Plantation Pvt. Ltd. and ors. Vs. M/s Ambience Private Ltd.’ Consumer Case Nos.307 to 309 of 2012 decided on 02.09.2013, where the same view was taken. It was held that complaint was not maintainable and the complainants reserved the rights to approach the appropriate Civil Court to seek their remedy, if so advised. In ‘Sunil Gupta Vs. Today Homes & Infrastructure (Pvt.) Ltd.’ Consumer Complaints No.5 of 2014 and No.6 of 2014 decided on 03.02.2014 by the Hon’ble National Commission, where the complainant had booked two Villas, he was held to be not a consumer. Hence, Hon’ble National Commission reserved the right of the complainant to approach the appropriate Civil Court to seek its remedy, if so advised and the complaints were dismissed. Applying the law laid down by the Hon’ble National Commission, this complaint No.56 of 2015 filed by the complainants is not maintainable.

8.             As far as the contention of the complainants that subsequent plot was purchased by them in the year 2013 because of the divorce of their daughter who is presently living with them is concerned, it is significant that there is no such plea in the consumer complaint filed by the complainants. Furthermore if the purchase of the second plot was necessitated on account of divorce of the daughter of the complainants, the said plot could have been purchased by them in the name of their daughter and not in their own name. We feel that rulings of Hon’ble National Commission cited above are fully applicable to the facts of the present case. The complainants do not fall under the definition of ‘consumer’ as defined in Consumer Protection Act and they are investors. Accordingly, this complaint is not maintainable before this Forum.

9.             For the reasons recorded above, the application filed by OP is allowed and this consumer complaint is dismissed with liberty to the complainants to approach the appropriate Forum to seek redressal of their grievances, if so advised. Parties are left to bear their own costs.

10.           The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
27/07/2015	[Suresh Kumar Sardana]	[Surjeet Kaur]	[P. L. Ahuja]
as	Member	Member	President