THE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, DELHI
Hon’ble Mr. Justice R.N. Mittal, President;
Sh. B.L. Anand, Member; Dr. (Mrs.) Avtar Pennathur, Member
CHANDRESH KUMAR—Complainant
versus
M/S. SKIPPER INDIA LTD. & OTHERS—Respondents
Case No. C-78/91 — Decided on 6.12.1991

A person who hires any services for a consideration which has been paid or promised, or partly paid and promised, or under any system of deferred payment is a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.

Headnote:

CONSUMER PROTECTION ACT, 1986 - SECTION 2(1)(D)(II), 2(1)(G), 2(1)(O) - HOUSING AND DEVELOPMENT BOARD - ALLOTMENT OF PLOTS/HOUSES - COMPLAINT - JURISDICTION - CONSUMER - SERVICE - DEFICIENCY - TIME ESSENCE OF CONTRACT - INTEREST - WINDING UP OF COMPANY - MAINTAINABILITY OF COMPLAINT - SUMMARY

Fact of the Case:

The complainants applied for the purchase of a plot in a scheme developed by the respondents. They paid a total sum of Rs. 2,66,438/- to the respondents by way of account payees cheques/bank drafts. The respondents encashed the cheques/drafts and issued receipts to the complainants. However, the respondents failed to transfer the plot to the complainants despite repeated requests. The complainants sent a letter to the respondents requesting them to refund the amount of Rs. 2,66,438/- along with interest @ 18% p.a. The respondents replied that they were ready to offer another plot of one acre provided the complainants further deposited Rs. 1,33,762/-. The complainants filed a complaint before the District Forum alleging deficiency in service on the part of the respondents.

Finding of the Court:

The District Forum held that the complainants were consumers within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, as they had hired the services of the respondents for a consideration. The Forum also held that the complaint fell within the definition of the word 'complaint' as defined in Section 2(1)(g) of the Act, as the allegations in the complaint and the correspondence between the parties showed that the services mentioned in the complaint suffered from deficiencies in respect of quantity, nature, and manner of performance. The Forum further held that the complainants were ready and willing to perform their part of the agreement, but the breach of the agreement was committed by the respondents. The Forum also held that time was not the essence of the contract in the present case, as the respondents had been postponing the date for transferring the plot and were unable to show that they had any title in the land. The Forum also held that the complainants were entitled to interest by way of damages on the amount deposited by them, at the rate of 16% p.a. from the dates the amounts were deposited by them till the date of payment.

Issues: 1. Whether the complainants were consumers within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986? 2. Whether the complaint fell within the definition of the word 'complaint' as defined in Section 2(1)(g) of the Act? 3. Whether the complainants were ready and willing to perform their part of the agreement? 4. Whether time was the essence of the contract in the present case? 5. Whether the complainants were entitled to interest by way of damages on the amount deposited by them?

Ratio Decidendi: 1. The definition of the word 'consumer' under Section 2(1)(d)(ii) of the Act includes any person who hires any services for a consideration which has been paid or promised, or partly paid and promised, or under any system of deferred payment. In the present case, the complainants had paid a sum of Rs. 2,66,438/- towards the part payment for the plot, and therefore, they were consumers within the meaning of the Act. 2. The definition of the word 'complaint' under Section 2(1)(g) of the Act means the allegations in writing made by a complainant that the services mentioned in the complaint suffered from deficiencies in any respect. In the present case, the allegations in the complaint and the correspondence between the parties showed that the services mentioned in the complaint suffered from deficiencies in respect of quantity, nature, and manner of performance. 3. The complainants had time and again requested the respondents to transfer the plot to them, but the respondents on one pretext or the other did not do so. The complainants were ready and willing to perform their part of the agreement, and the breach of the agreement was committed by the respondents. 4. Normally in the transactions of immovable properties time is not considered to be the essence of the contract. However, in the present case, the respondents had been postponing the date for transferring the plot and were unable to show that they had any title in the land. In the circumstances, it was to be inferred that the respondents never wanted that the time would be the essence contract. 5. The respondents had used the money of the complainants for a long time, and the letter were deprived of its use. Therefore, the complainants were entitled to interest by way of damages on the amount deposited by them.

Final Decision: The District Forum accepted the complaint and directed the respondents to pay the amount of Rs. 2,66,438/- with interest @ 16% p.a. from the dates the amounts were deposited by them till the date of payment. The respondents were also directed to pay costs of the petition to the complainant, which were assessed at Rs. 3,000/-.