(Delivered on 08/02/2022)
PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL MEMBER.
1. Appellant- Vatika Vihar Infraventures Private Limited has preferred the present appeal feeling aggrieved by the order dated 14/07/2016 passed by the learned District Consumer Commission, Nagpur in Consumer Complaint No. CC/14/445 whereby the learned District Consumer Commission, Nagpur partly allowed the complaint. (Appellant shall hereinafter be referred as O.P and respondent as complainant for the sake of convenience)
2. Short facts leading to filing of the present appeal may be narrated as under,
Complainant – Vasudeo Shripat Chauhan is a resident of Wardha road, Nagpur. O.P.- Vatika Vihar Infraventures Private Limited was a land developer and had started a project of construction of resort at Kanha Kisli Wildlife Sanctuary, at Tahsil Baihar, Distt. Balaghat (M.P.) named as Vatika Vihar Green Eden Resorts. The O.P. had also published brochure giving advertisement about the project and inviting prospective investors to invest in the project. The complainant along with his friends attended the meeting wherein the Directors of the company made tall promises of allotment of cottages to the buyers on ownership basis. The complainant was also promised free stay of 7 days and 8 nights in the allotted cottages. The complainants were also told that the cottage would be rented to visitors to the sanctuary and owner of the cottage would get 60% of the rental amount every year. Complainants were also promised that they will get accident insurance of Rs. 5,00,000/- and life time membership of Vatika Super Shoppe and other facilities. The complainant therefore, paid an amount of Rs. 50,000/- as booking amount vide receipt dated 20/12/2010 and also made down payment of Rs. 2,00,000/- by cheque on 09/05/2011 and Rs. 1,50,000/- by cheque on 18/05/2011. Complainant thus paid total amount of Rs. 4,00,000/- to the O.P. The complainant was also informed that the possession of the cottage would be given within 24 months but after receiving the amount of Rs. 4,00,000/- no progress was made and no cottage was allotted to the complainant nor the complainant was informed by the O.P. regarding the progress. The complainant then issued a letter to the O.P.on 16/09/201 asking for refund but no refund was granted and so the complainant filed the Consumer Complaint alleging deficiency in service by the O.P.- Vatika Vihar Infraventures Private Limited.
3. O.P. appeared in the matter and filed written version on record denying all the allegations made in the complaint. At the outset the O.P. has taken a plea that the complainant cannot be termed as a Consumer. The O.P. has further contended that the complaint was not tenable as the transaction was of commercial nature since the complainant was to get 60% of amount by way of profit. The O.P. has also contended that the learned District Consumer Commission, Nagpur had no territorial jurisdiction to try the complaint as the construction of cottage by the O.P. was taking place at Kanha Kisli, Tahsil Baihar, Distt. Balaghat (M.P.) and the transaction had taken place outside the jurisdiction of the learned District Consumer Commission, Nagpur. The O.P. has also contended that the present complaint was barred by limitation. For the forgoing reasons the O.P. has contended that the complaint filed by the complainant was not tenable in law and deserves to be dismissed with cost.
4. The learned District Consumer Commission, Nagpur thereafter went through the evidence affidavit as well documents filed by both the parties on record. The learned District Consumer Commission, Nagpur also went through the written notes of argument filed by the complainant as well as O.P. The learned District Consumer Commission, Nagpur appreciated the evidence led by the complainant and partly allowed the complaint by passing an order dated 14/07/2016 directing the O.P. to pay an amount of Rs. 4,00,000/- to the complainant along with interest at the rate of 9% and compensation of Rs. 15,000/- towards deficiency in service and Rs. 5,000/- towards cost of litigation. Against this order dated 14/07/2016 passed by the learned District Consumer Commission, Nagpur the present appellant/O.P. has come up in appeal.
5. We have heard Mrs. S.K. Pounikar, learned advocate for the appellant/O.P. and Mr. Shouche, learned advocate for the respondent/complainant. Mrs. S.K. Pounikar, learned advocate for the appellant has challenged the judgment and order passed by the learned District Consumer Commission, Nagpur on several grounds, we will deal with some one by one.
6. At the outset Mrs. S.K. Pounikar, learned advocate for the appellant has submitted that the present complaint was itself not tenable in law as the respondent /complainant- Mr. Vasudeo Chauhan have booked the property namely cottage of the O.P. for sake of earning profit and so the same was purchased for commercial purpose but this fact was not taken into consideration by the learned District Consumer Commission, Nagpur. In this connection Mrs. S.K. Pounikar, learned advocate for the appellant has drawn our attention to the copy of the agreement entered into with the complainant and more particularly Clause No. 8 of the agreement which reads that the cottage holder will get 40% income from the cottage and company will get 60% income. In the light of the clause No. 8 of the agreement it is submitted that the complainant had booked cottage merely to earn profit. Mrs. S.K. Pounikar, learned advocate for the appellant has submitted that the learned District Consumer Commission, Nagpur had not considered the stand taken by the appellant /O.P. in the written statement and also did not consider the same during the course of argument. Mrs. S.K. Pounikar, learned advocate for the appellant has submitted that the complainant had nowhere mentioned in his Consumer Complaint that the cottage was being purchased for residential use by the complainant and so only inference which can be drawn was that the same was purchased for commercial purpose.
7. Mr. Shouche, learned advocate for the respondent/complainant has strongly rebutted these contentions and has submitted that there was no error in findings given by the learned District Consumer Commission, Nagpur. Mr. Shouche, learned advocate for the respondent has pointed out that the respondent was actually a retired government servant and had attended the meeting convened by the appellant and its Directors with a view to encourage the respondents who were new entrepreneurs and also to supplement meager pension which was being received by him after retirement. Mr. Shouche, learned advocate for the respondent has also submitted that as per the terms and conditions of the agreement entered with the appellant it was clear that the appellants who were the directors were to look after the commercial management of the resort and the owner of the cottage namely the respondent or prospective purchasers were to get only 40% of profits which came to Rs. 20,000/- to 25,000/- per month but appellant did not abide by the terms and conditions. Mr. Shouche, learned advocate for the respondent has submitted that the respondent got attracted by the brochure published by the appellant and had entered into an agreement only with a view to supplement his own income and there was no question of earning any profits at all. According to Mr. Shouche, learned advocate for the respondent it was appellant himself who was to manage the resort with a view to make large scale profits and respondent /complainant was to get only a meager amount by way of profit to support his own income. It is submitted by Mr. Shouche, learned advocate for the respondent that the investment made for improving livelihood security does not fall within the mischief of the term ‘commercial purpose’. On this aspect Mr. Shouche, learned advocate for the respondent has also heavily relied upon one judgment of the Hon’ble National Commission in the case of Punjab Agriculture University Vs. Unit Trust of India, reported in I(2012)CPJ 166 (NC). Further Mr. Shouche, learned advocate for the respondent had also placed reliance upon other judgments in the case of 1) Aliens Developers (P) Ltd. Vs. Krati Rungta, reported in IV(2015) CPJ699(NC), 2) Sanjay Jhanwar Vs. Vatika Limited, reported in III (2013) CPJ 52 and 3) Bunga Daniel Babu Vs. Sri Vasudeva Constructions and other, reported in 2017(5) Mh.L.J,57.
8. We have gone through the judgment of Hon’ble National Commission in the case of Punjab Agriculture University Vs. Unit Trust of India, reported in I(2012)CPJ 166 (NC). In this case it has been clearly observed by the Hon’ble National Commission that the investment were made for improving ‘livelihood security’ of their employees who would be left with better financial security, after retirement and so such investment shall not under any circumstances fall under the definition ‘Commercial’ purpose excluding complainant from definition of Consumer. We have also gone through the judgment of Hon’ble Supreme Court in the case of Bunga Daniel Babu Vs. Sri Vasudeva Constructions and other, reported in 2017(5) Mh.L.J,57. In that case the Hon’ble Supreme Court has elaborately dealt with definition of ‘Consumer’ under Section 2(1)(d) of the Consumer Protection Act, 1986 after the amendment of 1993. The Hon’ble Supreme Court has also dealt with several land mark judgments on this aspect. The Hon’ble Supreme Court has also dealt with the explanation to Section 2(1)(d) of the Consumer Protection Act, and has observed that the services availed exclusively for the purpose of earning livelihood by means of self employment will not come within the definition of Commercial Purpose. Here in the present case the respondent has contended specifically that he was a retired government servant and had entered into an agreement only to supplement his own income. As such we feel that merely because the respondent was going to get profit of 40% no inference can be drawn that the respondent was indulging in commercial activity or was not a Consumer. As such we are unable to accept this contention advanced by Mrs. S.K. Pounikar, learned advocate for the appellant that the respondent was not a Consumer as per the definition given under Section 2(1)(d) of the Consumer Protection Ac,1986 or that complaint was not maintainable on this count.
9. Next contention raised by Mrs. S.K. Pounikar, learned advocate for the appellant was that the learned District Consumer Commission, Nagpur had no territorial jurisdiction as the construction project of the resort named as Vatika Vihar Green Eden Resorts was situated at Kanha Kisli in District Balaghat (M.P.). In this connection Mr. Shouche, learned advocate for the respondent has vehemently submitted that though the resort was being constructed at District Balaghat (M.P.) but the contract with the respondent had taken place at Nagpur and the respondent was also resident of Nagpur. Bare perusal of the agreement entered with the appellant shows that the contract had taken place at Nagpur. As such we are unable to accept this contention made by the learned advocate for the appellant. Appellant has further taken a plea that though the transaction referred in the complaint took place on 20/12/2010 the complaint came to filed in the month of August -2014 and so was barred by limitation. However, we are of the view that since the appellant/O.P. failed to comply and also failed to reply to the communication issued by the complainant, there was a continuous cause of action and so the complaint was not barred by limitation.
10. In the light of aforesaid discussion we are unable to accept the contentions advanced by Mrs. S.K. Pounikar, learned advocate for the appellant that the learned District Consumer Commission, Nagpur has not properly appreciated the evidence and documents in the proper perspective. On the other hand, we are of the view that the learned District Consumer Commission, Nagpur has dealt with same and also given reasons which cannot be termed as erroneous or perverse. As such the appeal filed by the appellant is devoid of any substance and so we pass the following order;
ORDER
i. Appeal is hereby dismissed.
ii. No order as to costs.
iii. Copy of order be furnished to both the parties, free of cost.
