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STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, DELHI
Hon’ble Mr. Justice R.N. Mittal, President;
Sh. B.L. Anand, Member; Dr. (Mrs.) Avtar Pennathur, Member
M/S. S.A.S. FILMS—Complainant
versus
BHATIA SEHGAL CONSTRUCTION CORPORATION & ANR.—Respondents
Case No. C-135/91 — Decided on 16.12.1991
For the Complainant :Mr. P.N. Jewan & Mr. A.K. Pathak, Advocates.
For the Respondent:Mr. Sanjeev Khanna, Advocate.
A person who hires or avails of any services for a consideration is a 'consumer' as defined under the Consumer Protection Act, 1986.
Headnote:
CONSUMER PROTECTION ACT, 1986 - SECTION 2(1)(d)(ii), 2(1)(o) - HOUSING AND DEVELOPMENT BOARD - ALLOTMENT OF PLOTS/HOUSES - 'CONSUMER' - SERVICE - COMMERCIAL PURPOSE - DELAY IN DELIVERY OF POSSESSION - REFUND OF MONEY - DAMAGES.
Fact of the Case:
The complainant, a sole proprietorship concern, applied for allotment of an area in the basement of a commercial complex being constructed by the respondents, a partnership firm. The complainant paid 14 instalments of the total cost of the flat as per demand. However, the respondents failed to deliver possession of the flat despite repeated demands. The complainant filed a complaint before the District Consumer Disputes Redressal Forum seeking possession of the flat along with interest and damages.
Finding of the Court:
The District Consumer Disputes Redressal Forum held that the complainant was a 'consumer' as defined under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, as the respondents were rendering service to the complainant by building a multi-storeyed building. The Forum also held that the complainant was entitled to a refund of the money deposited by him along with interest and damages.
Issues: 1. Whether the complainant was a 'consumer' as defined under the Consumer Protection Act, 1986? 2. Whether the complainant was entitled to a refund of the money deposited by him along with interest and damages?
Ratio Decidendi: 1. The definition of 'consumer' under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, includes any person who hires or avails of any services for a consideration. In the present case, the complainant had hired the services of the respondents for the construction of a commercial complex and had paid a consideration for the same. Therefore, the complainant was a 'consumer' as defined under the Act. 2. The respondents had failed to deliver possession of the flat to the complainant despite repeated demands. The complainant was no longer interested in purchasing the area on account of the delay. Therefore, the complainant was entitled to a refund of the money deposited by him along with interest and damages.
Final Decision: The District Consumer Disputes Redressal Forum accepted the complaint and directed the respondents to pay Rs. 4,40,000/- to the complainant with interest @ 15% p.a. from the date of the complaint till the date of payment within a period of three months.
Mr. Justice R.N. Mittal, President—Briefly the case of the complainant is that it is a sole proprietor ship concern of Sh. P.L. Abbot. Respondent No. 1 is a partnership concern and respondent No. 2 is one of its partners. It is engaged in the construction of multi-storeyed complexes/buildings and selling the flats therein. In 1979, Respondent No. 1 proposed to construct a multi-storeyed Commercial Complex consisting of commercial flats, shops and basement, on plot No. 22 at Rajindra Place, Pusa Road, New Delhi known as Padma Tower No. 2 (hereinafter referred to as the Tower).. It invited applications through advertisement in newspapers and property brokers for sale of the flats etc. in the tower.
2. The complainant applied on 19.1.79 for allotment of an area of 500 sq. feet in the basement of the tower and deposited a sum of Rs. 10,875/- towards application money vide cheque dated 19.1.79 drawn on the Bank of India. It is alleged that at that time the respondent assured the complainant that the possession of the basement would be delivered to it within a period of three years. In pursuance of its application the respondents allotted a covered area of 550 sq. feet, which was accepted by the complainant. In terms of the contract the payment was to be made in 15 instalments at various stages of the construction. 15th instalment was of the 5% of the total cost of the flat and it was to be paid at the time of delivery of possession. The complainant made payment of 14 instalments as per demand of the respondent No. 1 from time to time as detailed below : —
Date Cheque No. Amount
22/01/79 69684 10875.00
22/01/79 69685 7250.00
08/03/79 20254 7250.00
18/07/79 20262 3625.00
23/01/80 20291 3987.60
08/07/81 99463 3263.00
20/01/81 99492 11599.50
31/12/81 99497 3988.00
09/03/82 98814 3987.50
05/05/82 98823 3987.50
17/06/82 98826 1787.00
29/07/82 98839 3850.00
23/08/82 98842 3850.00
20/08/82 0098847 0098847 3850.00
It is alleged that after receipt of almost whole of the amount the respondents did not hand over the possession of the flat to the complainant and diverted the funds so collected for their personal use and benefit.
3. Thereafter the respondents demanded money towards the electric charges, fire fighting charges, MCD charges, registration charges etc. in the year 1983-84 to 87-88 and the same were paid immediately by the complainant as detailed below : —
Date Cheque No. Amount
20/06/83 0176710 12100.00 Electricity charges
05/07/84 0176718 5000.00
12/06/85 0317601 5000.00
09/04/87 029179 6500.00
09/04/87 Cash 10.00 Fire Fighting
16/09/87 003486 30250.00 M.C.D.
13/05/88 005187 27500.00 D.D.A.
14/05/88 005195 6160.00 Registration Charges
4. The respondents, however, have not delivered possession of the area purchased by the complainant till date despite repeated demands. Consequently it is prayed that the respondents be directed to hand over the possession of the basement along with the interest @ 24% p.a. on Rs. 1,65,670/- amounting to Rs. 2,10,765/- and to pay Rs. 7.5 lacs on account of damages/compensation.
The complainant has been contested by the respondents. They have pleaded that the complainant is not a ‘consumer’ as defined in the Consumer Protection Act (hereinafter referred to as the Act). The complainant is M/s. A.S. Films which is a commercial organisation and the basement in disputes is for commercial use and therefore the present complaint is not maintainable. It is further pleaded that the complaint is relates the to immovable property and therefore it is not covered by the provisions of the Act. On merits it is pleaded by them that they never assured, that the construction would be completed and possession would be handed over within the period of three years. In the allotment letter it was stated if the building was delayed no claim would be preferred against it except that the money deposited by the complainant would be refunded. It is further pleaded that it take 10 to 12 years in completing a commercial building and therefore, t
