For the Appellant                 Mr. Shakti Chand Jaidwal, Advocate

For the Respondent              Mr. Chandan Kumar, Advocate for R-7 & 8

                                        Ex parte R-1 to 6

ORDER

1.      This First Appeal filed under Section 19 of the Consumer Protection Act 1986 (in short, the “Act”) assails order dated 20.12.2019 in Consumer Complaint No.979 of 2018 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short, “the State Commission”) dismissing the complaint as not maintainable on the ground that the Appellant herein was not a “consumer” under the provisions of section 2(1)(d) of the Act.

2.      We have heard the learned counsel for both the parties and perused the records carefully. 

3.      The relevant facts of the case, in brief, are that the Appellant, who is a retired Indian Navy personnel had booked in the year 2011 a shop in the Mandi Gobindgarb Shopping Complex Mall of the Respondent a shop for ₹21 Lakhs and also 4 acres of agricultural land in Nagpur and two residential plots in Talwara Housing Complex.  The Complainant/Appellant submits that when he found the project had not started, he sought refund but was persuaded in 2014-2015 to book a flat in the Respondent’s housing complex in Jhungiyan village, Tehsil Kharar, Sector 125, Mohali and was allotted flat B-1 on 25.08.2015 admeasuring 1530 sq.ft. on the ground floor, Block-B, Tower 20.   A Sale Agreement was signed on 25.08.2015 in respect of this flat as per which construction was promised within one year, failing which the amount was to be refunded with interest @ 13%.  In July 2016, the Appellant learnt that construction of Tower 20 was unlikely to commence soon and therefore, he accepted the offer of the Respondent on 26.07.2016 to accept allotment of flat No.A-3 in Tower 5 which also admeasured 1530 sq. ft.  As the construction of this tower was also found to be very slow, the Appellant contends that he sought a refund and was issued three cheques dated 23.11.2016 for ₹12,79,819/-, 10.11.2016 for ₹12,79,819/- and 14.12.2016 for ₹12,70,300/- respectively, totalling to ₹38,29,928/-.  However, these post-dated cheques were dishonoured by the Bank due to ‘insufficient funds’ in the account of the Respondent.  He, thereafter, served a Legal Notice for payment of his dues in 15 days which was not complied with by the Respondents.  Therefore, he filed two cases under the Negotiable Instruments Act, 1881 before the Chief Metropolitan Magistrate, Tis Hazari Courts, New Delhi.  The same was followed by the filing of Consumer Complaint No.979 of 2018 before the State Commission praying for the handing over of the flat booked by him on an ‘as is basis’ or to refund the money deposited by him with interest along with litigation costs and compensation for mental agony and harassment.  Vide order dated 20.11.2019, the State Commission dismissed the Complaint holding that the Appellant/Complainant was not a ‘consumer’ under the purview of section 2(1)(d) of the Act.  This order is impugned before this Commission by way of this Appeal.

4.      I have heard the learned Counsel for the parties and perused the records.

5.      It is the contention of the Appellant that the complaint had been erroneously dismissed against him since Respondents No.1 to 6 failed to appear before the State Commission.  Appellant contended that he was in need of a residential unit for residing and a shop for his livelihood and had, therefore, booked the flat and shop.  He placed reliance on the judgement of this Commission in Karamjeet Kaur versus Nature Heights Infra Limited dated 20.12.2018 in Consumer Complaint 465-466 of 2018.  It was also contended that in terms of the order of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, it had been held that a person who had surplus funds could invest for gain in projects and would be treated as a ‘consumer’.  It was argued that the State Commission’s reliance on the judgement of this Commission in Jagmohan Chhabra & Anr. Vs. DLF Universal Ltd. IV (2007) CPJ 199 (NC) did not apply to the instant case.  It was, therefore, prayed that the impugned order be set aside and the Respondent be directed to deliver position of flat No.A-3 in Tower-5 and to pay the difference of cost above the sum of ₹39,50,000/- paid by the Appellant along with ₹5 Lakhs for mental agony and harassment along with ₹2 Lakhs as litigation costs.  In the alternative, it was prayed to refund the sum of ₹38,29,938/- with interest @ 13% from the respective dates of deposit till realization.

6.      Per contra, it was argued on behalf of Respondents No.7 and 8 who appeared before the State Commission that the Appellant was not an investor who had booked the flat for residential purpose.  The Appellant was stated to be an investor who had invested ₹35 Lakhs in various projects of the Respondent and was, therefore, not a “consumer” under the Act.  It was contended on behalf of the Respondents that the Appellant had sought to invest his money which he had admittedly obtained after his retirement from service with a view to make certain profits on his investment.  Therefore, it was contended that the State Commission had rightly held that the Appellant was not a consumer under the Consumer Protection Act, 1986 and had accordingly held the complaint to be not maintainable and, therefore, dismissed the same.

7.      The issue which falls for consideration is whether the Appellant qualifies to be a “consumer” under the Consumer Protection Act and whether the State Commission was correct in holding his complaint to be not maintainable.

8.      From the material on the record, it is evident that the Complainant/Appellant had written to the Respondent on 17.12.2014 stating that he had invested in Nature Heights Project since he had funds to spare for 18 to 24 months in order to obtain returns of three times in the project at Mandi Gobindgarb and that he had been assured that he could sell any plot or shop at any time when he was in need of funds.  It was, therefore, contended that now that he was in need of funds and the cost of the shop and the plot in Tawara Housing Complex had appreciated, the same may be refunded to him.

9.      The judgment of Karamjeet Kaur (supra) and the State Commission Punjab is distinguishable from the facts of this case since the issue of the Complainant of being a “consumer” under the Act was not involved in that matter.  It is evident from the foregoing that the Appellant had parked his funds in the projects of the Respondent purely from the point of view of their appreciation in real estate projects post his retirement and that he was an investor in the projects.  It is evident that he has chosen to move from project to project solely with this intention and not with that of occupying the same for residential purpose.  His contention that he was an Electro Homeopath in need of a shop for the purpose of self-employment is not supported by any document to indicate either that he is qualified to be such professional or whether he has been earning his livelihood through this basis.  Therefore, the contention that the commercial shop was required for the purpose of self-employment also does not get any support. 

10.    The finding of the State Commission that the Appellant was not a “consumer” under the purview of Section 2(1)(d) of the Consumer Protection Act 1986 cannot, therefore, be found fault with.  As per the evidence on record and the submissions of both the parties, we are not persuaded to interfere with the impugned order.  The impugned order is, therefore, affirmed.  The First Appeal is dismissed.  There shall be         no order as to costs.

11.    Pending IAs, if any, stand disposed of with this order.