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