PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          This complaint has been filed by the complainant against OP on 2.7.2010.

2.      Brief facts of the case are that complainant’s predecessor Company known as M/s. Nav Auro Investment Pvt. Ltd. was registered under Indian Companies Act and from 30.6.2008, name of the Company has been changed to M/s. Auro Sugar Pvt. Ltd.  Complainant booked two residential units and three commercial units in the project of OP, as mentioned in paragraph 3 of the complaint.  Complainant deposited sum of Rs.59,20,645/- against residential unit No. D-802 and sum of Rs. 59,67,636/- against residential unit No. D-1502 and OP executed separate buyers’ agreements.  It was further alleged that complainant paid a sum of Rs. 1,09,47,248/- to OP against three commercial units for which, no buyers’ agreement was executed. Complainant received notice dated 9.12.2009 demanding Rs.41,40,729/- against each of the two residential units.  Complainant contacted OP and informed that complainant had already deposited with OP more than required.  It was further pleaded that complainant by reply dated 21.12.2009 asked OP to intimate in writing about new schedule of the project and complainant was assured by OP to handover possession by December 2010.  Complainant received cancellation letter dated 11.1.2010 in which it was mentioned that complainant failed to deposit money as per notice dated 9.12.2009.  It was further mentioned in the letter that amount of Rs. 28,15,042/- and 28,36,197/- deposited by complainant in respect of two residential units stands forfeited.  Complainant sent legal notice dated 15.2.2010 to OP. Complainant also filed suit for permanent injunction against OP in the Court of Civil Judge, New Delhi in which OP in written statement admitted aforesaid facts, but also stated that one of the residential apartment has already been transferred. Alleging deficiency on the part of OP, complainant filed complaint with a prayer to direct OP to refund Rs.2,28,35,529/- with 24% p.a. interest and to pay compensation of Rs. 5 crores.

3.      Perusal of order sheets of this case reveal that on 15.11.2010, Counsel for complainant apprised to the Commission that he restricts his claim only for refund of amount of residential units and give up claim for three commercial units in the complaint and he would be filing amended complaint. Order sheet dated 24.2.2011 reveals that complainant filed amended complaint and restricted claim to the extent of two residential units. Order sheet dated 17.3.2011 reveals that after going through resolution of complainant, Commission was satisfied that complaint was maintainable and issued notice to the OP.  OP appeared on 23.5.2011 and sought time for filing written statement and by same order sheet, parties were directed to file rejoinder and evidence by way of affidavit.

4.      In the amended complaint, complainant restricted its claim to the extent of two residential units and prayed for refund of Rs.1,18,88,281/- with 24% p.a. interest and compensation of Rs. 5 crores.  He added paragraph 3 in the amended complaint in which it was mentioned that commercial units were booked by complainant for its own use and occupation for his office and residential plots were booked for residence of its officials and were not booked for re-selling or using them for any commercial purposes.

5.      OP filed written statement and submitted that complainant approached OP for the purpose of investment in Real Estate.  OP admitted booking of two residential units and three commercial units by complainant and further submitted that payment for units was linked with construction.  In paragraph 4 of the written statement mentioned payment received by OP in respect of each unit.  It was further submitted that complainant defaulted in making payment in all the five units inspite of repeated notices and ultimately vide letter dated 11.1.2010, provisional allotment of two residential units was cancelled and Rs. 28,15,042/- and Rs.28,36,197/- pertaining to two residential units was forfeited  as per buyers’ agreement and remaining amount was offered to the complainant on 2.3.2010 through cheques before Civil Court, but complainant refused to accept.  It was further submitted that residential unit D-1502 has been sold to other party.  It was further submitted that complainant does not fall within purview of consumer as he invested in all five units for making profit and main object of complainant is to acquire and otherwise deal with property of all kinds, and in particular, land, buildings, etc.  It was further denied that Rs.1,09,47,428/- received by OP in respect of commercial units was to be adjusted towards residential apartments.  Denying any deficiency on their part, prayed for dismissal of complaint.

6.      Both parties filed evidence by way of affidavit.

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

8.      Learned Counsel for the complainant submitted that inspite of making excess payment after adjusting payment made towards commercial units, OP has committed deficiency in cancelling allotment and forfeiting amount; hence, complaint be allowed and amount may be refunded with interest along with compensation.  On the other hand, learned Counsel for the OP submitted that complainant does not fall within purview of consumer and as complainant failed to make payment inspite of repeated notice, OP has not committed any deficiency in cancelling allotment and forfeiting earnest money and remitting balance payment; hence, complaint be dismissed.

9.      The core question to be decided in this complaint is whether complainant falls within purview of consumer or not?

10.    Admittedly, complainant booked two residential units and three commercial units in OP’s project.  As per Memorandum of Association of erstwhile Company Nav Auro Investment Pvt. Ltd., Clause 7 of main object runs as under:

“To acquire, improve, manage, work, develop, exercise all rights in respect of leases and mortgages and to sell, dispose of, turn to account and otherwise deal with, property of all kinds, and in particular, land, buildings, etc.

Perusal of aforesaid main object reveals that complainant was engaged in acquiring, improving, managing  developing and dealing in property of all kinds, and in particular, land, buildings, etc.  Minutes of Board Meeting dated 25.10.2007 of complainant’s Company reveals that they invested and purchased residential property at the Palm Drive, i.e., project of OP.  Thus, it becomes clear that complainant in order to achieve its main object invested in purchasing residential units in the OP’s project. In the main complaint it has nowhere been pleaded that complainant booked all five units for the purpose of use for its office and use for residence of its officials.  Paragraph 3 of the amended complaint runs as under:

“That it is an admitted case of the parties that the complainant booked five units, two residential and three commercial with the respondent.  The units booked by the complainant were not for re-sale or for any commercial purposes. The commercial units were booked by the complainant for its own use and occupation for its office and was not in any way booked for re-selling or re-letting or for earning any rental income from them. The residential flats were booked for use by the complainant for the residence of its officials and in no way were booked for re-selling or using them for any commercial purposes such as for letting or for re-letting or for earning any rental income from them.

Learned Counsel for the complainant could not show any application for permission to amend the complaint and order passed by this Commission allowing amendment of the complaint in pursuance of which, aforesaid paragraph 3 had been incorporated in the amended complaint.  Merely because Counsel for the complainant apprised that he would be restricting his complaint only to the extent of the two residential flats and he would be filing amended complaint, it cannot be inferred that complainant at any time was permitted by this Commission to amend the complaint and incorporate aforesaid paragraph 3 in the amended complaint. If aforesaid paragraph 3 is not considered as part of pleading, we do not find any averment in the complaint that complainant booked aforesaid apartments and units for use of its office and residence for its officials and in such circumstances, looking to main objects of Memorandum of Association it can very well be observed that complainant booked all units for the purpose of investment for gain.

11.    Learned Counsel for complainant submitted that as this point has already been considered and decided by this Commission, again this point cannot be agitated and in support of his contention he has placed reliance on judgment of Hon’ble Apex Court in (1998) 5 SCC 590 – Hope Plantations Ltd. Vs. Taluk Land Board, Peermade & Anr., (2002) 7 SCC 447 – C.V. Rajendran & Anr. Vs. N.M. Muhammed Kunhi and  (2005) I SCC 787 – Bhanu KumarJain Vs. Archana Kumar & Anr. in which it was held that there is difference between principle of res adjudicata and estoppel.  We agree with the law laid down in aforesaid cases by Hon’ble Apex Court, but aforesaid cases are not applicable to the present case as in the case in hand, this Commission after hearing OP has nowhere held that complainant falls within purview of consumer and complaint is maintainable.  It appears that after restricting claim to the extent of two apartments, this Commission, prima facie found complaint maintainable and issued notice to OP and by admitting complaint for issuing notice, it cannot be inferred that this Commission decided that complainant falls within purview of consumer and complaint is maintainable and in such circumstances, this issue is yet to be decided whether complainant falls within purview of consumer or not?

12.    As already observed above, complainant invested its funds for acquiring apartments for the purpose of gain and in such circumstances, complainant does not fall within purview of consumer.  Even if it is presumed that complainant booked flat for residence for its officials, complainant does not fall within purview of consumer as held by this Commission in Consumer Case No. 307 of 2012 – M/s. Moran Plantation Pvt. Ltd. Vs. M/s. Ambience Pvt. Ltd. in which also Complainant Company booked apartment and object of Company was to acquire by purchase etc., land, building and to manage land, building and other properties in which it was held that complainant does not fall within purview of consumer.  This Commission in Consumer Complaint No. 250 of 2012 – Singhal Finstock (P) Ltd. Vs. Jaypee Infratech Ltd. & Ors. held that residential plots booked by complainant Company for residence of Directors does not fall within purview of consumer.

13.    In the light of aforesaid discussion, it becomes clear that complainant does not fall within purview of consumer and complaint is liable to be dismissed on this count.

14.    As far merits of the case is concerned, it is not disputed that complainant was to make payment of aforesaid apartments as per construction stage. It is not disputed that complainant made payment of only 35% of the sale consideration to OP.  Learned Counsel for the OP has drawn our attention towards  various demand notices dated 16.2.09, 18.3.09, 11.5.09, 7.8.09, 3.10.09 and 30.11.09 by which, balance amount was demanded from complainant pertaining to aforesaid apartments.  Learned Counsel for the complainant submitted that these letters were not received by him whereas learned Counsel for OP submitted that these letters were sent to the complainant which must have reached to the complainant which also have been referred in notice dated 9.12.2009 and receipt of this notice has been admitted by complainant in the complaint.  In such circumstances, it can be presumed that complainant received these letters and as complainant failed to make payment as per Buyers’ agreement, OP vide letter dated 11.1.2010 cancelled allotment and forfeited earnest money.  Learned Counsel for the complainant submitted that amount pertaining to commercial units was to be adjusted towards apartments, but learned Counsel for the complainant has not placed any document depicting acceptance of aforesaid proposal by OP and OP has specifically denied any such assurance in its written statement.  Complainant has also withdrawn his complaint to the extent of commercial units. In such circumstances, it cannot be presumed that OP agreed to adjust amount of commercial units towards sale consideration pertaining to aforesaid residential apartments and OP has not committed any deficiency in cancelling allotment on account of default in payment of due amount and in forfeiting earnest money as per terms and conditions of buyers’ agreement. This Commission in R.P. No. 1973 of 2014 – DLF Southern Towns Pvt. Ltd. Vs. Dipu C. Seminlal observed as under:

“11.    Admittedly, complainant neither made payment of any instalments nor sent duly signed agreement, though; it was to be remitted within 30 days from the receipt.   Inspite of repeated reminders, complainant has not made payment of any instalments and in such circumstances, OP had every right to forfeit earnest money on account of failure to comply terms and conditions of the allotment.  Learned Counsel for the petitioner has placed reliance on judgment of this Commission in Sahara India Commercial Corpn. Ltd. Vs. P. Gajendra Chary – III (2010) CPJ 190 (NC) in which it was observed as under:

“12.   Observations made by Hon’ble Supreme Court of India in H.U.D.A. vs. Kewal Krishan’s case (supra) would be applicable to the facts of the present case.  In the said case, the Supreme Court has held that the builder would be entitled to forfeit the amount paid by way of instalments in a case where the allotte defaults in making the payment of the remaining instalments.  That the builder would be fully justified in forfeiting the earnest money deposited by the allottee.  In the present case, petitioner having paid the sum of Rs.46,350/- failed to pay the remaining amount by way of instalments and asked for the refund of the amount already deposited.  As per Clause 8 of the terms and conditions of allotment, the petitioner was entitled to forfeit the amount”.

13.    In the light of aforesaid judgments, it becomes clear that as complainant has not paid any subsequent instalments and committed default in making payments of instalments and also committed default in returning back duly signed agreement, OP had every right to forfeit amount of earnest money deposited by complainant and learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal”.

15.    Hon’ble Apex Court in 2006 (12) SCALE 531 - Saurabh Prakash Vs. DLF Universal Ltd. held that DLF, therefore, cannot be said to be wrong in exercising its right to forfeit the earnest amount.  Same view was taken by Hon’ble Apex Court in 1996 (4) SCALE 327 – HUDA & Anr. Vs. Kewal Krishan Goel & Ors.

16.    In the light of above discussion, it becomes clear that complainant does not fall within purview of consumer and on merits, OP has not committed any deficiency in cancelling allotment on account of default in payment of instalments and has not committed any deficiency in forfeiting earnest money. Balance amount after deducting forfeited earnest money has already been remitted by OP to the complainant in pursuance to order dated 2.3.2012 of this Commission.

17.    Consequently, Complaint filed by complainant is dismissed with no order as to costs.