w w w . L a w y e r S e r v i c e s . i n



M/s. Omaxe Limited, New Delhi & Another v/s Divya Karun & Another


Company & Directors' Information:- OMAXE LIMITED [Active] CIN = L74899HR1989PLC051918

Company & Directors' Information:- TO THE NEW PRIVATE LIMITED [Active] CIN = U72900DL2006PTC235208

Company & Directors' Information:- DIVYA AND CO PRIVATE LIMITED [Active] CIN = U74899DL1984PTC017271

Company & Directors' Information:- B L AND CO NEW DELHI PRIVATE LIMITED [Active] CIN = U74899DL1968PTC004910

Company & Directors' Information:- DIVYA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U45200GJ2012PTC068663

Company & Directors' Information:- NEW INDIA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U36999TN1940PTC001776

    Revision Petition No. 665 of 2020

    Decided On, 31 August 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. ANUP K THAKUR
    By, PRESIDING MEMBER

    For the Petitioners: Soumyajit Pani, Advocate. For the Respondents: ------



Judgment Text


1. This Revision Petition No.665 of 2020 seeks setting aside the impugned judgment and order dated 06.2.2020 of the State Consumer Disputes Redressal Commission, Jaipur, Rajasthan (State Commission hereafter) in Appeal No.625 of 2018. Vide this order, the State Commission, finding nothing wrong in the order dated 10.7.2018 of the District Forum, had dismissed the appeal. In turn, the District Consumer Disputes Redressal Forum, Jaipur (District Forum hereafter), after hearing the parties and on the basis of evidence, had partly accepted the Consumer Complaint No.230/2015 (Old Case No.41/2015) vide the following order:

“Therefore, the present petition filed by the petitioners is being partly accepted and it is ordered to opposite party to jointly and separately pay petitioners an amount of Rs.2,00,000/- (in words Rupees Two Lakh Only) with simple interest of 9% p.a. from date of filing this petition on 17.12.14. Alongwith this, petitioners are also entitled to get Rs.2500 (Rs. Two thousand five hundred) as compensation for mental harassment and Rs.2500/- (Rs.Two thousand five hundred) as legal cost. A period of one month is being granted for compliance of this order. In case of not(non) compliance of this order in granted period, petitioners will be entitled to get simple interest of 9% p.a. on compensation for mental harassment and legal cost amount from today, the date of this order.”

(Ad verbatim from record)

2. This revision petition has been filed with I.A. No.4819 of 2020, an application seeking condonation of delay in filing of this revision petition. For the reasons put forth in the application, delay is condoned and this revision is taken on record.

3. Heard the learned counsel for the petitioners.

4. Very briefly, the facts in this case are that respondent/complainant (complainant hereafter) had executed an allotment deed/agreement on 16.06.2007 for Rs.25,96,600/- consideration for a villa booked by them earlier. The amount was to be paid in installments. The complainant took possession of their Villa no.111 on 15.09.2010 after paying the full amount to the petitioners/OPs (OP hereafter). Subsequently, when the complainant sought ‘no dues certificate’ from the OP on 21.10.2013 for transfer of the villa in favour of Mr. Ramdulare, he was shown total receipts issued by the OP of Rs.26,93,931.77, with current dues as zero. When the complainant requested for documents related to the villa for transfer to Sh. Ramdulare, the OP sought payment of Rs.2,00,000/-. It was the case of the complainant that this payment was made by him under duress. The amount so collected was therefore illegal, a deficiency in service and an unfair trade practice. He therefore filed a consumer complaint with the District Forum which partly allowed the complaint vide order dated 10.7.2018 (supra). On appeal, the State Commission agreed with the reasoning of the District Forum, and finding no merit in the appeal, dismissed the same. Hence, this revision petition.

5. Learned counsel, appearing for the petitioner/OP, submitted that his main pleas were (i) that the District Forum had committed an error of jurisdiction in admitting and deciding the consumer complaint; and (ii) that the complainant, after having paid Rs.2 lakh without any protest, and after all consequential actions viz-a-viz transfer of documents and the property in the name of Sh. Ramdulare was over, was estopped from pursuing this matter before the consumer fora. Elaborating, counsel submitted that the jurisdictional issue had been raised before the District Forum as well as the State Commission. However, both had failed to consider it. He also argued that the complainant was not a consumer under section 2 (1) (d) of the Consumer Protection Act, 1986. The reason was that it was very clear from the record that the complainant had bought the villa for resale to earn profit and not for his residential purpose.

6. Having heard the counsel and carefully perused the record, I am inclined to agree with the concurrent orders of the State Commission and the District Forum.

7. I find that the District Forum has reasoned cogently, on the basis of submissions and evidence, that prior to the issue of no dues certificate dated 23.10.2013, Rs. 1,77,999.29 had been taken by the OP on account of ‘holding charges’. If so, there was no case for the OP to have sought payment of another Rs.2 lakh at the time the complainant had sought transfer of documents to Sh. Ramdulare, on account of holding charges. This was, on the face of it, incorrect. No fault can be found in the orders of the District Forum and the State Commission, on this ground.

8. Learned counsel for the OP has raised the issue of jurisdiction arguing that as the value of villa was over Rs. 26 lakh and as the pecuniary jurisdiction of the District Forum was limited to Rs.20 Lakh, this consumer complaint could not have been entertained by the District Forum. He submits that this issue had been raised before the District Forum as well as the the State Commission but was ignored. It is true that jurisdictional issue can be raised at any stage of any proceeding. It is not therefore incorrect for this issue to be raised before the National Commission in this RP. Proceeding further, it is clear, from a plain reading of the orders of the State Commission and the District Forum, that they have noted the issue of jurisdiction raised in their respective orders but have not given any explicit finding in the matter. From this, it is clear that the District Forum and the State Commission have, by inference, taken the value of the consumer complaint to be Rs.2 Lakh. The question therefore is: was this a gross error in law? Not so, in my considered view. The reason for this is that the entire transaction of over Rs.20 lakh was over and done with, with possession taken and transferred to Ramdulare by the original allotee/complainant. The consumer complaint, therefore, was not about the villa any more. Rather, the complaint was about the unfair trade practice of the OP in having demanded Rs.2 lakh at the time when the complainant was left with no option but to comply. This was so because he had to complete the transaction of sale and could not possibly have allowed the same to hinge on Rs 2 lakh. It is this that was the subject of the complaint, not the villa. Therefore, the jurisdictional error argued by the learned counsel does not sustain.

9. The second issue raised by the counsel was that having accepted payment of Rs.2 lakh, without protest, the complainant was estopped from approaching the consumer fora. This logic cannot sustain in the facts of the case. The imperative of completing the transaction of sale would preclude any protest from the complainant for a relatively small amount of Rs. 2 lakh. This would not mean that it had been made without protest and permit invoking of estoppel. The facts make it clear that it was under duress. Thus, the complainant’s right to approach the consumer forum for redressal was not barred by the principle of estoppel.

10. Third argument raised was that the complainant was not a consumer because it was clear that he had bought the villa only to sell and make a profit. This argument fails in two ways. One, sec 2(1)(d) of the CPA 1986 defines a consumer as a person who buys any goods or hires or avails of services for a consideration but does not include a person who obtains such goods for resale or for any commercial purpose or who avails of such servicers for any commercial purpose. The important provision is “for any commercial purpose”. Law in this regard has been laid down by the Hon’ble Apex Court, (1995) 3 SCC 583, in the case of Laxmi Engineering Works vs. P.S.G. Industrial Institute: it has been held that whether or not buying of a good or availing of a service is for a commercial purpose is a question of fact and has to decided in the facts and circumstances of the case. In the instant case, the complainant has made an averment that he was selling the villa for personal reasons. This does not make his purchase of the villa a purchase for commercial purpose. Two, commercial purpose would have to be established; OP would have to show that the complainant was in the business of sale and resale of property. No such averment however is on record or agued. A person can buy a flat and sell it for various reasons. Simply because he sold it does not prove anything. It could never be seriously contended that just because a person has bought a property, and had to sell it, for whatever reason, he would stand debarred from the consumer forum.

11. Finally, law on revisional powers has been clearly laid down by the Apex Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654, as under:

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some pr

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ima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b)of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”12. In view of the discussion above, this Revision Petition, after consideration, is dismissed at the stage of admission.
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