Consumer Case; M/s. TDI Infrastructure Limited Vs. Vinod Kumar Kuchhal [D.S.C.D.R.C., 16-10-2015]

Consumer Protection Act, 1986 booking of shop /flat РWhether a person booking two units is a consumer and whether he can file case in Consumer Court РHeld, A person who books more than one unit is not a consumer, rather he is investor and he can not come to Consumer Courts.

# Consumer Case


DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

Before :- Justice Veena Birbal, President, Salma Noor, Member, O.P. Gupta, Member (Judicial).

October, 16 2015

First Appeal Nos. 85 and 976 of 2014

M/s . TDI Infrastructure Limited – Petitioner

Versus

Vinod Kumar Kuchhal – Respondent

For the Petitioner :- Hirak Sinha and Chanchal Kumar De, Advocates.

ORDER

O.P. Gupta, Member(Judicial) – By this common order we shall be deciding two appeals bearing No. FA-85/14 titled as TDI Infrastructure Limited v . VinodKumar Kuchhal and No. FA-976/14 titled as TDI Infrastructure Limited v . Vinod Kumar Kuchhal.

2. The former appeal arises out of complaint case No. 403/11 which was decided on 21.11.13. The later appeal arises from complaint case No.401/11 which was decided on 19.8.14. The reason being that in both the appeals same question arises as to whether a person booking two units is a consumer and whether he can file case in Consumer Court. In the complaint which gives arise to former appeal, the case of the complainant/respondent was that he had booked a shop with the OP/appellant and had paid L 5,50,000/- vide receipt 2. dated 18.1.2007. OP allotted shop No. FF-103 measuring approximately 800 sq. ft. which was in the Commercial Plaza named AS- TDI , Park Street situated at Sonepat, Haryana. The construction was to be completed within one year and possession given within one year. The shop was allotted verbally @ L 3,750/- per sq. ft. and OP promised to demand further instalments after execution of all papers containing terms and conditions as per payment schedule. Complainant requested OP for papers of allotment which OP failed to provide. The complainant asked for cancellation of booking and refund of amount. Notice dated 28.7.10 was served which was replied and OP stated their project would be completed within a short span. Project was not completed even after 4 years i.e. upto 10.4.11.

3. OP filed a reply raising preliminary objections that complainant had suppressed and concealed the material fact. The booking was done through Sahyog Properties who is a necessary party. The complainant made investment to gain profit but due to global economy shut down, defaulted in making payment as per schedule. There was no deficiency on the part of the OP.

4. Both the parties filed their evidence by affidavit. After going through the material on record, the Ld. District Forum found that booking of shop was not disputed, the booking was done in 2007 and construction was not completed till 2010. So the OP was extremely negligent. The OP was directed to refund L 5,50,000/- (booking amount) along with interest @9% from the date of booking till date of payment. Further compensation of L 1,00,000/- was also awarded.

5. In the later complaint the complainant/respondent pleaded that he booked a shop and paid L 4,50,000/- vide receipt dated 18.1.07. Shop No.GF-60 measuring approximately 800 sq. ft. was promised to be allotted in the Commercial Plaza named AS- TDI , Park Street, Sonepat, Haryana. Construction was promised to be completed within one year. Shop was allotted verbally @ L 4,750/- per sq. ft. and OP promised to demand further instalments after execution of all the papers containing terms and conditions as per payment schedule. OP failed to provide the same. The complainant asked for cancellation of booking and refund of amount. Notice dated 28.7.10 was served which was replied to the effect that the project would be completed within a short span. Project was not completed even after 4 years i.e. upto 10.4.11.

6. OP filed a reply raising preliminary objection that complainant had suppressed and concealed the material fact. Shop was booked through Sahyog Properties who is a necessary party. The complainant had made investment to gain some profit but due to global economy shut down, defaulted in making payment as per schedule. There was no deficiency on the part of the OP.

7. Both the parties failed their evidence by way of affidavit.

8. After going through the material on record, Ld. District Forum found that booking was undisputed, OP failed to execute papers and supply necessary documents. Rather OP raised further demand and was negligent in executing papers. So OP was directed to refund L 4,50,000/- (booking amount) along with interest @9% p.a. from the date of booking till the date of payment. Further compensation of L 1,00,000/- including litigation costs was awarded.

9. Being aggrieved by order of the District Forum, the OP has filed present appeal. In appeal the contention of the appellant is that the respondent expressed interest and registered himself for allotment of two commercial shops in the project of the appellant. Payment plan choosen by the respondent was construction linked payment plan. The respondent had made the booking at the time when real estate market in India was booming. When due to sudden and major slump in real estate market especially in commercial commodities, the respondent realised that he would not be able to earn profit. Respondent chose not to make payment in accordance with the payment schedule. Respondent is not a consumer for the purpose of the

# Consumer Protection Act, 1986

but is a speculative investor. The appellant sent reminder dated 29.7.10, 3.9.10 and 2.12.10 with respect to outstanding instalments. In 2011 with real estate prices stabilizing, respondent awoke up. Still instead of making payment upto 50% along with interest of non payment at the earlier stage, filed a complaint before the District Consumer Forum. The respondent did not explain as to why he just paid the booking amount and that too in 2007 and thereafter, did not make payment of a single instalment. The District Forum did not deal with any of the submissions made.

10. The respondent has filed a reply disputing the averments made in the appeal. He prayed for rejection of the appeal, enhancement of interest from 9% to 21% or 9% interest compounded monthly. He also prayed for enhancement of compensation from L 1,00,000/- to L 3,00,000/- and awarding litigations charges of L 50,000/-.

11. The respondent has filed additional arguments on 29.7.15. He relied upon decision dated 8.6.15 delivered by National Commission in consumer complaint No. 427/14 titled as Satish Kumar Pandey & Ors. v . Unitech Ltd. We have gone through the same, heard oral arguments advanced on behalf of both the parties.

12. The respondent heavily relied upon observations made in para 15 of the judgment of the National Commission in Satish Kumar Pandey – Supra. In the said para the plea of the OP that in some of the complaints, the complainant planned to shift to the flat s booked by them only after their retirement meaning thereby they did not need a flat for their personal residence and they were to let out the flat on taking possession. The purchase by such person was commercial and they were not consumer within the meaning of section 2 (i)(d) of the Consumer Protection Act. Reference was made to the decision of the National Commission in Kavita Ahuja v . Shipra Estates Ltd. in CC LNo.137/2010 decided on 12.2.2015 and decision of Hon’ble Supreme Court in

# Laxmi Engineering Wroks v. P. S .G. Industrial Institute (1995) 3 SCC 583

13. After noticing the above judgments, the National Commission observed that if a person is residing, say, in a Government accommodation and, therefore, does not immediately need to occupy a residential flat and, hence let it out in the interregnum till he retires and has to vacate the Government accommodation, it cannot be said that the residential accommodation acquired by him for commercial purpose. The objective behind acquiring accommodation is to live it, though on a future date. Mere postponement of the date on which the purchaser has to shift to the residential accommodation does not convert the purpose for which accommodation is acquired, to a commercial purpose. Hence the plea of the OP was rejected.

14. On the other hand, the Counsel for the appellant submitted that in the case relied by respondent, the complainant of said case had not booked more than one unit. Rather the said case was confined to single unit use of which was deferred till the date of retirement. So the same is not applicable to the case in hand.

15. The Counsel for the appellant relied upon decision of National Commission in CC No.143/2013 titled as Ved Kumari & Anothers v . M/s. Omaxe Buildhome Pvt. Ltd. decided on 5.3.14. In para 2 of the judgment it has been noticed that the complainant had booked four more flats. The complainant booked those flats for taking care of his family in future. The property consisted of two rooms only and he was married subsequently. Their family could increase. He wanted a three room flat. He explained that his family would feel confortable in flat in Sector 93 B, Noida and four other flats yet to be allotted. The National Commission was not impressed by the arguments. The national Commission relied upon its previous decision in

# Chilkuri Adarsh v. ESS ESs VEE Construction, Vol. III (2012) CPJ 315

in which it was held that complaint filed by a person where agreement was for construction of two showrooms related to commercial purpose, is not maintainable in Consumer Forums. It was held that even when a consumer had booked more than one unit of residential premises, it amounted to booking of such premises for investment/commercial purpose. Similar view was taken by National Commission in case of

# Jagmohan Chabra and Ors. v . DLF Universal Ltd., IV (2007) CPJ 199

which was upheld by Hon’ble Supreme Court in Civil Appeal No.730-731 of 2008 dismissed on 29.9.08.

16. In the above case National Commission further relied upon its decision in Ms. Saavi Gupta & Ors. v . Omaxe Azorim Developers Pvt. Ltd. in CC No.208 of 2012 decided on 1.10.12 and decision in consumer case No.307 to 309/2012 titled as Moran Plantation Pvt. Ltd. v . Ambience Private Ltd. decided on 2.9.13.

17. The Counsel for the appellant also relied upon decision of the National Commission in CC No.207/2013 titled as Smt. Madhu Saigal & Ors. v. M/s. Omaxe Buildhome Pvt. Ltd. decided on 20.3.14. Exactly same question as to whether complainants are entitled to invest in more than one apartment was raised and the same was answered in the negative.

18. In the case of Saavi Gupta, reliance was placed on decision of Hon’ble Supreme Court in

# Bihar School Examination Board v. Suresh Prasad Sinha Vol.IV (2009) CPJ 34

In that case it was held that service availers who avail any service for any commercial purpose is not a consumer. Reference was also made to decision of the National Commission in

# Rajasthan State Industrial Development and Investment Corporation v . Diksha Enterprises (2010) III CPJ 333 (NC)

and also National Commission judgment in RP 1129/12 titled as Harnam Singh v . Shalimar Estate Pvt. Ltd. and Ors. Decided on 29.5.2012.

19. We have given our anxious consideration to the rival arguments and find that precedents are to be used cautiously. They can help a party only when the facts are identical. In this regard reliance can be placed on the decision of High Court of Delhi in

# Tata Iron And Steel Co. Ltd. v. Jhalani Tools (India) Ltd. (2009) 156 DLT 311.

In para 21 it was observed that what is of essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides and not what logically follows from it. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. Reference was made to decision of Hon’ble Supreme Court in

# Padmasundara Rao (Dead) & Ors. v . State of Tamil Nadu & Ors., (2002) 2 SLT 483

where it was held that there is always a peril in treating the words of judgment as through they are words in a legislative enactment and it is to be remembered that judicial utterance are made in setting up of the facts of a particular case. In

# Rafiq v. State, 1980 SCC (Crl) 946

it was observed that the ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases.

20. In

# Hamid Ahmed v. Asad Mueed & Ors., 2000 (162) DLT 520

again the High Court of Delhi took the same view. In para 21 it was held that case in only an authority for what it actually decide and not what logically followed from it. In this case reference was made to decision of Hon’ble Supreme Court in

# Bharat Petroleum Corporation Ltd. and Anr. v. N.R. Vairamani and Anr. AIR 2004 SC 4778

in which it was held that a decision can not be relied upon without considering the factual situation. Court should not place reliance on decision without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid’ s theorems nor as provisions of the statute and that too taken out of their context. Reference was also made to decision of Hon’ble Supreme Court in

# P. S . Rao v. State II JT 2002 (3) SCI

Ambica Quarry Works v . State of Gujarat and Ors.

and

# Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd., VII (2002) SLT 322

21. Viewed in the light of aforesaid decision regarding precedential value, we find the case relied upon by the respondent is not applicable. In that case there was no question as to what would be the effect of having more than one unit. The question was altogether different as to whether a person who books flat for his need for future is a consumer or not.

22. As compared to it, the decision relied upon by the appellant are on all the four corners of the case in hand. It has been held time and again that a person who books more than one unit is not a consumer, rather he is investor and he can not come to Consumer Courts.

23. In view of the above discussions both the appeals succeed and are accepted. The impugned judgment, are set aside and the complaints filed by the respondent are dismissed.

24. Before parting with the record of the case, we may point out that in Appeal No.85/14, the respondent has been able to recover the amount in execution of the impugned order. He can not retain the said benefits. So he is directed to refund the amount recovered by him within 30 days of this order failing which he will further pay interest @9% p.a. from the date of recovery by him till the date of refund by him.

25. The complainant/respondent would be at liberty to take recourse to other remedies available to him as per law.

26. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum.

27. FDR, if any, be released in favour of appellant as per rule.

Both appeals accepted.

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