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C.S. Grewal v/s M/s. Taneja Developers & Infrastructures Ltd. & Others

    First Appeal No. 543 of 2016

    Decided On, 17 May 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appellant: Taranjit S. Grewal, Advocate. For the Respondents: Rudresh Jagdale, proxy counsel for Kanika Agnihotri, Advocate.

Judgment Text

Dr. B.C. Gupta, Member

This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 04.04.2016, passed by the Punjab State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in consumer complaint No. 05/2016, vide which, the said complaint was ordered to be dismissed on the ground that the appellant/complainant C.S. Grewal did not fall under the definition of ‘consumer’ u/s 2(1)(d) of the Act and hence, the consumer complaint was not maintainable. It was held by the State Commission that the complainant had only applied for an allotment of plot and his application had not matured into an ‘allotment’ and hence, he could not be called a ‘consumer’.

2. Briefly stated, the facts of the case are that the appellant/complainant C.S. Grewal submitted an application to the opposite party (OP), Taneja Developers and Infrastructures Limited for allotment of a residential plot, admeasuring 250 sq. yd. in Sector-110/111 Mohali, Punjab, in response to their advertisement and he deposited a sum of Rs.6,87,500/- with them and signed the advance registration form. The said payment was made by the complainant vide cheque no. 869863 dated 12.02.2008. It is stated in the consumer complaint that the complainant changed his residential address from Dwarka, New Delhi to Gurgaon, Haryana and gave intimation to the OP Builder through letters dated 12.09.2008 and 27.09.2008, but he did not get any reply from them. He sent an e-mail also to them on 27.03.2009, intimating the change in address. The complainant received first response from the OPs on 07.04.2011 through e-mail, vide which they demanded proof of the new address. The complainant replied to them immediately, saying that such proof had already been sent. Further, the complainant made repeated queries with the OP Builders to know about the status of the project, but according to him, there was no response from the OPs. The complainant then filed consumer complaint No. CC 513/2011 before the District Forum Mohali on 11.12.2011, which was allowed by the said Forum vide order dated 23.02.2011, according to which, a direction was given to the OP Builder to allot a plot of 250 sq. yd. to the complainant in any of their projects at Mohali. Being aggrieved against the order of the District Forum, the OP Builder challenged the same before the State Commission on the ground of pecuniary jurisdiction. Vide order dated 03.08.2015, the said appeal was allowed by the State Commission and the order passed by the District Forum was set aside with liberty to the complainant to file fresh complaint before the appropriate Forum. The complainant challenged the said order of the State Commission before this Commission by way of Revision Petition No. 2692/2015 but the said petition was dismissed vide order dated 02.11.2015. The complainant then filed a fresh complaint before the State Commission as complaint No. 5/2016 on the same cause of action, which has been dismissed vide impugned order by the State Commission on the ground that the complainant does not fall in the category of ‘consumer’. The present appeal has been filed, challenging the said order of the State Commission.

3. During proceedings in the first complaint No. 513/2011, a written statement was filed by the OP Developer before the District Forum, in which they stated that after consideration of the application of the complainant, they made offer of allotment of a residential plot in their project to the complainant, vide their letter dated 29.01.2009 and the registration amount of Rs.6,87,500/- deposited by them was adjusted as the booking amount for the said purpose. However, the complainant failed to remit a further sum of Rs.3,78,125/- to them as required vide their letter dated 29.01.2009. The allotment in his favour was cancelled vide letter dated 06.01.2011, because the complainant had failed to follow the payment schedule. The OPs also stated that as per instructions from the complainant, the change of correspondence address was affected in the records of the company and the cancellation letter dated 06.01.2011 was also sent at his new address in Gurgaon.

4. At the time of hearing before this Commission, the learned counsel for the appellant/complainant stated that the finding given by the State Commission in the impugned order was erroneous in the eyes of law, because the complainant did fall under the category of ‘consumer’, since the cheque of Rs.6,87,500/- deposited by him, was duly encashed by the OPs. The learned counsel has drawn attention to an order passed by this Commission in 'Harminder Kaur, Mandeep Kaur v. Haryana Urban Development Authority' [2013 (4) CPJ 144], in support of his arguments, saying that after the deposit of money with the OP, the complainant does come under the category of ‘consumer’. The State Commission had, therefore, wrongly placed reliance on the case, 'Punjab Urban Planning and Development Authority vs. Krishan Pal Chander [2010 (2) CLT 546]'. The learned counsel further stated that the letters sent by the OPs were directed to the wrong address of the complainant.

5. In reply, the learned counsel for the respondents/OP Builder stated that the allotment made in favour of the complainant had been cancelled for non-payment of further amount and a cancellation letter had been issued on 06.01.2011. The proof for change of address etc. had not been received by them.

6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

7. The facts and circumstances on record makes it very clear that the allotment of a plot was duly made by the OP Builder in favour of the appellant/complainant and as per their own version, the letter dated 29.01.2009 was sent to him. The OP Builder have stated categorically that due to non-payment of further amount on the part of the complainant, they cancelled the said allotment and sent the cancellation letter dated 06.01.2011 to him. They have also admitted in their written statement filed before the District Forum that they had carried out the change in address in their record, following instructions received from the complainant. It is crystal clear from these facts that the finding given by the State Commission that the application made by the complainant had not matured into allotment, is erroneous on the face of record. It appears that the State Commission has not gone into the facts of the case in detail and arrived at a wrong conclusion that the complainant did not fall under the category of ‘consumer’. The citation relied upon by the State Commission in 'Punjab Urban Planning and Development Authority vs. Krishan Pal Chander' (supra) is not applicable to the facts of the present case, because it is not a case of mere deposit of registration amount. Moreover, the learned counsel for the appellant/complainant has rightly referred to a decision of this Commission in 'Harminder Kaur, Mandeep Kaur v. Haryana Urba

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n Development Authority' (supra), in which, it has been held that after the deposit of earnest money alongwith application for allotment, a person does fall under the definition of ‘consumer’. The impugned order passed by the State Commission, therefore, suffers from a material error in the eyes of law, as it is contrary to the facts on record. 8. Based on the discussion above, the present appeal is allowed, the impugned order passed by the State Commission is set aside and the matter is remitted back to the State Commission with the directions that they should dispose of the consumer complaint filed before them in accordance with law, after affording an opportunity to both the parties to lead appropriate evidence in their favour. There shall be no order as to costs.