Delhi

StateCommission

CC/757/2016

MRS. SEEMA JAIN - Complainant(s)

Versus

M/S BPTP LTD. - Opp.Party(s)

08 Jan 2018

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :08.01.2018

Date of Decision :11.01.2018

Complaint No.757/2016

IN THE MATTER OF:

 

Mrs. Seema Jain,

W/o. Shri Ajay Jain,

618, Sector-14,

Faridabad-121007(Haryana).                                                                   ……Complainant

                                                                        Versus

Chairman & Managing Director,

M/s. BPTP Ltd.,

M-11, Middle Circle,

New Delhi-110001.                                                                                     …..Opposite Party

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                    Yes/No

2.      To be referred to the reporter or not?                                                                     Yes/No

 

Present:           Shri  Ajay Jain Husband of Smt. Seema Jain, complainant.

                        Smt. Mandakini Sharma, Counsel for the Opposite Party.

 

PER  : SHRI ANIL SRIVASTAVA, MEMBER

JUDGEMENT

          Short question for adjudication in the complaint filed by Smt. Seema Jain, w/o. Shri Ajay Jain, resident of Faridabad, for short complainant, under Section 17 of the Consumer Protection Act 1986 (the Act) is whether the allegation of the complainant to the effect that the M/s. BPTP, hereinafter referred to as OPs, have been deficient in rendering service to them in not handing over the possession of the edifice B-507, measuring 1120 sq. ft. within the time as agreed to and thus entered into unfair trade practice and if these allegations are well founded, whether this Commission can issue a direction when apparently the complainant does not appear to be a consumer within the meaning of Section 2 (1)(d)(ii) of the Act, she having booked more than one flat without explaining or expressing  her need for the purpose.

          Facts of the case necessary for the disposal of the complaint are these.

          The OPs had launched their Discovery Park Project at Faridabad, Haryana in Sector-80. On 28.02.2012 an agreement was executed between OPs and Mr. J. Mathew Abraham and Mr. Sachin Tyagi, the original allottees of the flat no.B-507, measuring 1120 sq ft @Rs.2750/- per sq ft, allotting the said edifice to the original allottees. The complainant paid the necessary consideration to the original allottees and as a consequence thereof the transfer and change of rights to purchase the flat were registered with the respondent company in the name of the complainant.

          The complainant thereafter started paying the installments in accordance with the flat buyer agreement. But it was noticed by the complainant that the process of construction of the flats has slowed down without any notable reason. She visited the site to find out the progress but they were utterly disappointed as the construction was no where with the pace as agreed to. As per the agreement, clause B-1 the possession of the property was to be handed over within 36 months from the date of sanctioning of the building place or from the date of agreement, whichever is later. The OPs could not adhere to the terms of the agreement. There is abnormal delay. Completion of the project is nowhere visible. Clause 10 of the agreement posits that in the event there exists factors beyond their control, the OP would not be accountable for the delay. The OP in that  case shall not be held responsible or liable for not performing any of its obligations or undertaking provided for in this agreement  if such performance is prevented due to `Force Majeure’.

          The complainant has alleged that the OP have also not highlighted factors or any tangible ground or reasons, preventing them from completing the project. Since the completion of the project was for from reality the complainant, having not been able to settle the matter with the OPs at her level, filed a complaint before this Commission praying for the relief as under:-

a)      Refund the amount of Rs.17,08,113.36 (Rs. Seventeen lakhs eight thousand one hundred and thirteen and paisa thirty six only) along with 18% interest per annum compounded quarterly on above amount from 21.01.2013 which is the date of signing buyer agreement and date of commitment of both parties to the project. Delay interst claimed is equal to the delay interest charged by respondent company in the unfortunate event of delay in payment of any installment by any customer.

 

b)      Pay a sum of Rs.10,00,000/- (Rs. Ten lakhs only) towards the physical strain and mental agony, torture, loss of comfort and undue hardships caused to the complainant and his family due to the modus operandi of the respondent company (compensation);

 

c)      Pay a sum of Rs.50,000/- (Rs. Fifty thousand only) towards cost of this litigation including fees, time spent and expenses (cost); and

 

d)      Any other relief in favour of the complainant as deemed fit and proper by the Hon’ble commission.

 

          The OPs were noticed and in response thereto they have filed their written statement stating that the complaint is wholly misconceived, erroneous, unjustified and untenable under the law. They have submitted that as per the agreement arrived at the matter should have been referred to arbitrator which having not been done the complaint is not maintainable.

          However during the pendency of the case the ld. Counsel for the OP very fairly prayed for and was allowed to withdraw her application regarding referring the matter to the arbitration, keeping in view the judgement of the Hon’ble NCDRC passed on 13.07.2017 in the burch matter of Aftab Singh Vs. Emaar MGF Land Limited & Anr. and other connected matters, holding,

“An Arbitration Clause in the agreement between the complainants and the builder cannot circumscribe the jurisdiction of a Consumer For a, notwithstanding the amendments made to Section 8 of the Arbitration Act.”

 

          Their next objection is that there exists no cause of action in the subject matter in favour of the complainant or against them as the construction is in full swing. We do not agree with this. . There exists sufficient cause of action in favour of the complainant and against the OP inasmuch as the complainant has deposited a substantial amount of the total sale consideration for the flat he had booked on the agreement that the physical possession of the flat would  be handed over within 36 months which did not happen. The Hon’ble NCDRC in the matter of Santa Banta Com.  Ltd. vs. Porsche Cars – I(2014) CPJ 516 (NC) have held that the cause of action are the bundle of essential facts necessary for plaintiff to prove and obtain a decree but does not comprise evidence necessary to prove such facts. Cause of action thus gives occasion for and forms the foundation of suit. The OP having fallen short of their commitment as per the agreement executed on 19.07.2007, cause of action has arisen in favour of the complainant and against the OPs. Hence the contention of the OP to this effect is rejected.

          The OPs have also alleged that the complainant is not a consumer and thus not entitled to raise a consumer dispute as according to them the transaction  done in this behalf is for commercial purpose. In fact alongwith the written statement  OPs have filed an application (Page 6 of the WS) praying for dismissal of the complaint on the ground that the complainant is not a consumer. The foundation of the application is that the complainant has applied for more than one unit and her case in that event would be hit by the provisions of Section 2 (1)(d)(ii) of the Act, nor her case would be covered by the explanation.

          Section 2(1)(d)(ii) and explanation posits as under:-

(d)     “Consumer means any person who,-

 

(i)      buy any goods 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; or

 

(ii)     [hires or avails of] any services 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 beneficiary of such services other than the person who [hires or avails of]  the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];

{Explanation- For the purpose of this clause, “commercial purpose” does not include use by person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment;}

 

          The details of the unit booked by the complainants are as under:-

S.No.	Name	Unit Number
1	Mrs. Seema Jain	B-507, Discovery Park, Faridabad
2	Mrs. Seema Jain	J-21/58 Parklands, Faridabad

 

          On a plain reading of the  said provisions it is clear that once a transaction is commercial or for earning profit after the purpose of investment, it is outside the scope of the Consumer Protection Act, 1986.

          This commission in case titled, Chilkuri Adarsh Vs. Ess Ess Vee Construction, III(2012) CPJ 315, has held, as under:-

“Arguments of the learned counsel have been considered. However, we are of the view that the complainant as presented cannot be maintained before a consumer for a like outs as the agreement was  for the construction of two showrooms, which obviously relate to commercial purpose and the complainant, therefore, will not come within the definition of a consumer as per Section 2(1)(d) of the Consumer Protection Act, 1986. This has been the consistent view of this Commission. It has held that even when a consumer has booked more than one unit of residential premises, it amounts to booking of such premises for investment/ commercial purpose. This Commission in the the case of Jag Mohan Chhabra & Anr. Vs. DLF Universal Ltd. IV (2007) CPJ 199 (NC) in a somewhat similar case had held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed of the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Hon’ble Supreme Court as Civil Appeal No.6030-5031 of 2008 filed before the Supreme Court stands dismissed vide the apex courts order dated 29.09.2008”.

 

          The ld. Counsel for the OP has also placed reliance on the judgement of Hon’ble NCDRC in the matter of Pavan Kohli vs. BPTP Ltd., & Anr C148/16 decided on 06.11.2017 holding as under:-

Even on merits, the booking of a 4^th plot despite having booked at least 3 plots, coupled with the sale transaction of 2 plots out of the 3 plots booked in BPTP Parklands is a clear indicator that the plot in question was booked by the complainant for speculative purposes of selling the same at a higher price. Therefore, he cannot said to be a genuine plot buyer and the obvious inference is that the services of the OP were availed by him for a commercial purpose.

 

          In yet another case the Hon’ble NCDRC in Ved Kuamri vs. Omaxe Buildhome Pvt. Ltd. II(2014) CPJ 146 (NC) has held as under:-

“Booking of more than one flat amounts to for commercial purpose. Flats booked are for investment and the contention that these are for taking care of his family in future cannot accepted. Complainants are investors and not consumers. Complaints are not maintainable”.

          The complainant appearing in person has however placed before us the judgement of Hon’ble NCDRC in the matter of Kavita Ahuja vs. Shipra Estate Ltd. & Jai Krishna & Ors CC 137/10 decided on 12.02.2015.

In any case, it is not appropriate to classify such acquisition as a commercial activity merely on the basis of the number of houses purchased by a person, unless it is show that he was engaged in the business of selling and purchasing of  houses on a regular basis. If, for instance, a persons has two three children in his family  and he purchased three houses one for each of them,  it would be difficult to say that the said houses were purchased by him  for a commercial purpose. His intention in such a case is not to make profit at a future date but is to provide  residential accommodation to his children on account of the love and affection he has for his children. To take another example, if a person has a house say in Delhi but he has business in other places as well and therefore, purchases one or more houses at other places where he has to live presently in connection with the business carried by him, it would be difficult to say that such acquisition is for commercial purpose. To give one more example, a person owning a house in a metropolitan city such as Delhi, or Mumbai, may acquire a house at a hill station or a place, which is less crowded and more peaceful than a metropolitan city, in my view, it cannot be said that such acquisition would be for commercial purpose. In yet another case, a person may be owning a house but the accommodation may not be sufficient for him and his family, if he acquires one or more additional houses, it cannot be said that he has acquired them for commercial purpose. Many more such examples can be given. Therefore, it cannot  be said that merely because of the complainant had agreed to purchase three flats in the same complex the said acquisition was for a commercial purpose.

 

          However the Hon’ble NCRC in the matter of Sanjay Goel vs. M/s. Country Colonisers Private Ltd. – CC 429/2015 – decided on 07.08.2017 – has distinguished the ratio in the case of Kavita Ahuja (supra) holding as under:-

The ld. Counsel for the complainant relies upon the decision of this Commission in Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate – CC NO.137 of 2010, CC No.145 of 2010 and CC No.146 of 2010 decide on 12.02.2015. The aforesaid decision of this Commission is clearly distinguishable on facts, since the complainant in the aforesaid matters had given a valid and justified explanation for booking three residential flats in the same project, whereas the complainant before this Commission has withheld material facts and also disposed of the flats which he had booked with the OP in a project, namely, `Wave Harden’ in Sector-85 and 99 of Mohali.

 

For all these reasons and discussion done, we are of the considered view that the complainant in the facts and circumstances of the case is an investor an thus not entitled to raise a consumer dispute and accordingly we allow the application of the OP and having done so we dismiss the complaint with no orders as to cost.

         

We order accordingly.

Since we order to dismiss the complaint on the ground that the complainant is not a consumer we do not deem it necessary to consider other points raised in the written statement.

          However, while dismissing the complaint  as not maintainable, we reserve the right of the complainant to approach the appropriate civil court to seek his remedy, if so advised. He may take advantage of the ruling of the Hon’ble Supreme Court I the case of Laxmi Engineering Works vs. PSG Industrial Institute (1995) 3 SCC 583 to seek exclusion of the time spent in prosecuting these complaints before this Commission.

          Copy of this order may be forwarded to the parties to the case are statutorily required.

          File be consigned to records.

(ANIL SRIVASTAVA)                                                            (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)