At, National Consumer Disputes Redressal Commission NCDRC
By, THE HONOURABLE MR. JUSTICE V.K. JAIN
By, PRESIDING MEMBER
For the Appellant: Nemo. For the Respondent: J.K. Agrawal, Advocate.
The appellant late Shri Harinarayan Sharma owned plot No.D-69A in Bapunagar, Jaipur. He entered into an agreement with the respondent No.2 Dinesh Kumar Jain, whereunder Dinesh Kumar Jain was to construct residential flats on the aforesaid plot at his own cost. The flats proposed to be constructed by Dinesh Kumar Jain were to be shared between him and late Shri Harinarayan Sharma.
The complainant entered into an agreement with Sh. Dinesh Kumar Jain on 18.4.2014 for purchase of one of the flats proposed to be constructed by Shri Dinesh Kumar Jain for a consideration of Rs.88,50,000/- and made part payment of Rs.1327500/- to him. The construction of the flat having not been completed, he approached the State Commission by way of a consumer complaint impleading the builder Dinesh Kumar Jain as well as the land owner late Shri Harinarayan Sharma as the opposite parties in the complaint.
2. The complaint was resisted by the appellant who interalia stated in his written version that he had no knowledge of the agreement between the complainant and Shri Dinesh Kumar Jain. He also stated in his written version that no payment was received by him from the complainant and Shri Dinesh Kumar Jain had got his signature on the agreement between him and the complainant without explaining the contents of the document to him, taking advantage of his old age and his weak physical and mental condition.
3. The builder Shri Dinesh Kumar Jain did not come forward to contest the consumer complaint. The State Commission allowed the consumer complaint against both the opposite parties, i.e. the builder Shri Dinesh Kumar Jain as well as the appellant late Shri Harinarayan Sharma by directing them to refund of Rs.1327500/- to the complainant alongwith 9% interest and compensation quantified at Rs.25,000/-. Being aggrieved, the appellant approached this Commission by way of this appeal.
4. It is not in dispute that the plot on which construction was proposed to be raised by Shri Dinesh Kumar Jain was owned by the appellant. The agreement executed between the appellant and Shri Dinesh Kumar Jain clearly shows that it was solely for the builder Shri Dinesh Kumar Jain to construct a multistoried building on the plot of the appellant. The agreement also shows that the entire expenditure on the construction was to be incurred by the builder alone without any monetary contribution by the appellant. The agreement also shows that on receiving possession of the plot, the builder was to pay rent equivalent to rent of two houses to the appellant till the construction of the building was completed by him. The entire responsibility to get the property subdivided, approval of the plans and completion of the construction rested with the builder, without the appellant being in any manner responsible for the same. Both, the builder as well as the appellant could book the units following to their respective shares. A Power of Attorney was also executed by the appellant in favour of the developer. Thus, the appellant had absolutely no role to play in the construction of the building on the plot though the plot on which construction was planned belonged to him. Thus the said agreement was not a Joint Development Agreement.
5. A perusal of the Agreement to Sell executed with the complainant would show that it was executed between only two parties to the said agreement, the first being the developer Shri Dinesh Kumar Jain and the second party being the complainant Vijay Kumar Soni. There was no third party to the agreement. It was clearly stated in the agreement that the first party i.e. Shri Dinesh Kumar Jain would construct a multistoried residential complex on Plot No.D-69A owned by the appellant Shri Harinarayan Sharma and he wanted to sell to the complainant, front side of the third floor in the proposed building which he was competent to sell. Under the agreement, it was for Shri Dinesh Kumar Jain to start construction within three months of the execution of the agreement with the complainant. The entire sale consideration was to be paid by the complainant to Shri Dinesh Kumar Jain. No payment to the appellant was envisaged in the said agreement.
6. Thus, it is evident that not only the responsibility to construct the building on the plot of the appellant was of Shri Dinesh Kumar Jain the entire payment from the complainant was to be received by him alone.
7. It is an admitted position before me that no payment whatsoever was made by the complainant to the appellant Shri Harinarayan Sharma. As noted earlier, the Agreement to Sell with the complainant was executed only by Shri Dinesh Kumar Jain. Though the said agreement also bears signature of the appellant the said signature does not make him a party to the aforesaid agreement when it was clearly stated in the document that the agreement was executed between Shri Dinesh Kumar Jain as the first party and the complainant Vijay Kumar Soni as the second party. Obviously, the signature of the appellant would have been taken on the agreement on account of his being the owner of the land on which a building was proposed to be constructed by Shri Dinesh Kumar Jain, in order to ensure transfer of title in the land underneath the proposed flat, to the complainant, which could be done only by the appellant.
8. Since (i) there is no privity of contract between the complainant and the appellant (ii) no consideration has been received by the appellant from the complainant and (iii) obligation to construct a building in the said plot rested solely with Shri Dinesh Kumar Jain, the complainant, in my opinion, cannot be said to be a consumer of the complainant.
9. Even otherwise a consumer complaint can be instituted against the seller of the goods or the service provider as the case may be only if there is a defect or deficiency on the part of the seller of the goods or the service provided in the goods sold or the services rendered, as the case may be. Since the construction was to be made solely by Shri Dinesh Kumar Jain, there was no defect or deficiency on the part of the appellant in rendering services to the complainant, even if it is assumed for the sake of argument that the complainant was a consumer of both, Shri Dinesh Kumar Jain as well as the appellant Shri Harinarayan Sharma.
10. The learned counsel f
Please Login To View The Full Judgment!
or the appellant refers to the decision of the Hon’ble High Court of Delhi in Mrs. Jaya Bhandari & Ors. Vs. Malhan Builders & Ors. [(2010) 7 AD (Delhi) 683], decided on 25.8.2020. The aforesaid decision in my opinion, has absolutely no application to the present case when no defect or deficiency on the part of the appellant in rendering services to the complainant is even alleged. 11. For the reasons stated hereinabove, the appeal is allowed and the order of the State Commission, to the extent the said order is directed against the appellant, is set aside. However, the impugned order to the extent it is directed against Shri Dinesh Kumar Jain, is confirmed. The appeal stands disposed of.