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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Prem Narain, Presiding Member
BNAL Prefabs Pvt. Ltd. —Appellant
versus
Puma Realtors Pvt. Ltd. and Anr. —Respondents
First Appeal No.437 of 2014
(Against the Order dated 17/06/2014 in Complaint No. 39/2014 of the State Commission Chandigarh)
Decided on 19.11.2018
For the Appellant:Mr. Rohit Sharma, Mr. Gauravjeet Narwan, Mr. Mohit Aneja and Mr. Anshul Chowdhary, Advocates
For the Respondent No.1:Mr. Gagan Gupta, Advocate
For the Respondent No.2: Deleted
IMPORTANT POINT
When there is a material irregularity in the orders of the lower fora, the same can be challenged in appellate jurisdiction and the matters can be remanded for fresh disposal.
Headnote:Consumer Protection Act, 1986—Section 21—First Appeal—The appellant applied for residential plot in the project namely IREO HAMLET of the respondents in Sector 98, SAS Nagar, Mohali, for the personal use of Shri Anuj Gupta, Director of the Appellant Company, and for the use of his family members and total cost of the plot was Rs.75,98,250/-—Though substantial amounts are paid , the construction was not started and hence, complaint for refund , interest costs etc., was filed—Complaint was resisted mainly on the ground that the complainant is not a consumer and hence the complaint is dismissed—Appeal filed was also dismissed on the same ground—Hence, the present appeal—Heard the counsels, perused the record and on considering the Supreme Court Judgment, it is held that the Complainant is a consumer within the definition of “consumer “ as per the act and hence the appeals are allowed and the separate orders dated 17.06.2014 passed by the State Commission in CC No.39 of 2014 and CC No.38 of 2014 are set aside and the matters are remanded to the State Commission for restoring the consumer complaints at their original numbers and to decide the same on merits treating the complainant as a consumer—Parties to appear before the State Commission on 07.01.2019.
Result: Appeals are allowed remanding the matters back to Consumer Forum.
First appeal No.437 of 2014 has been filed by the appellant complainant BNAL Prefabs Pvt. Ltd. against the order dated 17.6.2014 passed in consumer complaint No.39/2014. Similarly, FA No.440 of 2014 has been filed by the appellant/complainant Khandelia Mercantile against the order dated 17.6.2014 passed by the State Consumer Disputes Redressal Commission, UT Chandigarh (in short ‘the State Commission’) in consumer complaint No.38/2014. As the issues involved in both the appeals are the same, these appeals are being decided together. The FA No.437 of 2014 will be the appeal being examined and analysed for decision.
2. Brief facts of the case are that the appellant applied for residential plot in the project namely IREO HAMLET of the respondents in Sector 98, SAS Nagar, Mohali, for the personal use of Shri Anuj Gupta, Director of the Appellant Company, and for the use of his family members and total cost of the plot was Rs. 75,98,250/-. On 22.04.2011, initially the appellant deposited a sum of Rs.6,50,000/- vide cheque No.149093 dated 20.4.2011 drawn on HDC Bank Ltd., Chandigarh and on 22.4.2011, the appellant filed the application form which was duly signed by Shri Anuj Gupta in the capacity of a Director of appellant company. A perusal of the application form shows that the same was a standard format document which was prepared by the respondents and only the individual particulars of the appellant had to be filled in the blank spaces. The respondents provisionally allotted residential plot bearing No.271 measuring 307.77 sq. yd. on 29.4.2011 in favour of the appellant by issuing a provisional allotment letter dated 29.4.2011. The allotment letter very categorically provided that the allotment was subject to the acceptance of all terms and conditions set out in the Plot buyer’s Agreement which would be separately mailed to the appellant in due course of time. On 28.3.2014, aggrieved by the actions of the respondents in not developing the plot, the appellant filed a consumer complaint under Section 17 of the Consumer Protection Act 1986 before the State Commission praying for a direction to the respondents to refund the amount of Rs.37,59,131/-, along with interest @24% per annum, from the respective dates of deposits, till realization and to pay compensation to the tune of Rs.5 lakhs for mental agony and physical harassment and for cost of litigation to the tune of Rs.1 lakh. The State Commission vide its impugned order dated 17.6.2014 dismissed the complaint filed by the appellant holding that the appellant was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act.
3. In both the complaint cases, the State Commission has given the finding that the complainant is a private limited company, and therefore, not a consumer. Challenging this finding of the State Commission, these present appeals have been filed.
4. Heard the learned counsel for the appellant as well as for the respondents. Learned counsel for the appellant stated that FA No.437 of 2014 would be taken as lead case. He submitted that the appellant booked a plot for residence of Director of the Company in Sector 98, SAS Nagar, Mohali on 22.4.2011. The total cost of the plot was Rs.75,98,250/- and from 2011 till 2013 the appellant had paid Rs.37,59,131/-. Learned counsel argued that the State Commission has only examined the issue whether the complainant was a consumer or not. All other points in the complaint have not been answered by the State Commission. In the complaint, it was stated that the plot was booked for making the house for the Director of the Company Mr.Anuj Gupta. The State Commission has observed that the name of Mr. Anuj Gupta does not appear in the Memorandum of Association or Article of Association of the company and therefore, the complainant has not come with clean hands. It has further been observed that the complainant being a private limited company is not a consumer under Section 2(1)(d) of the Consumer Prot
