CHANDRESH KUMAR vs SKIPPER INDIA LTD.

BRIEFLY the facts are that respondent No. 1 made wide publicity of sale of plots in the chema known as ''Kip or Villa Farms'' located on Surgaon Ohna Road, about 10 KM from Surgaon. Respondent No. 2 is the Managing Director of respondent No. 1. The complainants made an application for purchase of a plot measuring 1.03 acres @ 5.90 lacs per acre in the scheme, and they were allotted a plot marked as E-7 in the scheme. They paid a total sum of Rs. 2,66,438/- to the respondent by mean of account payees cheques/bank drafts or detailed below : - The respondents encashed the cheques/drafts and issued receipts to the complainants.

THE complainants it is further averred, contacted the respondents various times to transfer the said plot and got the sale-deed registered in their name. In March, 1990 the respondents intimated to the complainants vide letter dated 3.3.90 (exhibit 5) that they would got the sale-deed registered in their name in the end of March'' 90. Inspite of the complainants request the plot was not transferred in their name. Later the respondents informed them that the registration of the sale-deed would be affected in their name by 10.5.90 but it was not done. THEy again contested the respondents on 8.6.90 and 11.6.90, who assured them that the sale-deed would be got registered in the first week of July ''90. Seeing that they were delaying the execution of the sale-deed without any reason the complainants wrote a letter dated 20.6.90 requesting them to refund the amount of rupees 2,66,438/- (exhibit ''C'') together with interest @ 18% p.a. immediately. THE respondents replied their letter vide letter dated 18.7.90. (exhibit-7) and informed them that they were ready to offer another plot of one acre provided they further deposited Rs. 1,33,762/-. The complainant requested the respondents to show the plot but they did not show the plot to them or their attorney. Sh. Virender Kumar, their attorney, wrote a registered letter dated 3.8.90 (exhibit 8) to the respondents stating that he came to know from Mr. Goyal of their office, that they had unilaterly changed the plot X-7 to E-7A. Thereafter the respondents had offered them another plot stating that it would be shown to them by Sh. M. Srivastava. He had been telephoning to Sh. Srivastava and even saw him but no response came from him.

It is then pleaded that the complainant''s attorney Sh. Virender Kumar visited Ohna and made enquiry about the plots. He was informed that no land stood in the name of the respondents in the revenue records. The complainants attorney vide letter dated 17.9.90 (exhibit 10) informed the respondents that he had visited Ohna and found that the mutation could not be effected in the name of the complainants as no land stood in the name of the respondents. He, therefore, requested the respondents that before getting the sale-deed registered in the name of the complainants. They should got the land transferred in the revenue papers in their (respondents) name. Thereafter the complainants attorney visited the office of the respondent many times but the land was not got transferred in the name of the complainant. Ultimately the respondents wrote to the complainant vide letter dated 1.11.90 that they would be able to transfer the land in their name after 6 weeks. It is alleged that the respondents failed to transfer the land in favour of the complainants and therefore they were entitled to the refund of Rs. 2,66,438/- with interest @24% p.a.

THE complaint was contested by the respondents. THEy pleaded that the complainants do not fall within the definition of the word ''consumer'' as defined in the Consumer Protection Act, 1986 and, therefore the Commission had no jurisdiction to try the case. On merits it was stated that the complainants applied for purchase of 1.03 acres of land and that they had paid a sum of Rs. 2,66,438/- towards the part payment. THE complainants, it is pleaded, failed to fulfil their part of the agreement as they did not pay the balance amount and the registration charges. THErefore, the land could not be transferred in their name. The first question that arises for determination is, whether this Commission has the jurisdiction to try the complaint. It has been contended by the learned Counsel for the respondents that the Commission has no jurisdiction to try the complaint as the complainants do not fall within the definition of the word consumer as defined in the Act. We have duly considered the argument but regret our inability to accept the same. The definition of the word consumer as given in the Act under Section 2(1)(d)(ii) is as follows : - (i) Consumer means any person when - xxx xxx xxx (ii) hires any services for a consideration which has been paid or promised or partly paid and promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person."

From the above definition it is evident that if any person hires services for a consideration partly paid and partly promised, he becomes a consumer. The word ''service'' has been defined in section 2(1)(o) reads as follows :- "Service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking financing, insurance, transport, processing, supply of electrical or other energy board or lodging or both entertainment, amusement or the purveying news or other information, but does not include the rendering of any services free of charge or under a contract of personal service. The definition of the word ''service'' is not exhaustive but illustrative. Any kind of service rendered or to be rendered by a person to another may amount to service. In the present case the respondents had mentioned in the brochure (attached with exhibit-1), that they would give developed plots to the purchasers. The plots for farm houses were being developed by the respondents keeping in view the leisure. The purchasers would be provided with the facilities of a clinic, jogging trail, health club, swimming pool, playground, symposium and mini golf club. All the efforts have been put by professionals and that the purchasers would not like to leave the farm houses. The reads in the area would be well-planned and accident free. They had also given the plan of the area in the brochure. The complainant, in view of the aforesaid assurances had applied for the plot. It is evident from the above discussion that the respondents undertook to transfer not merely the plot of land to the complainants but they had also undertaken to develop the area and provide certain facilities, there. If all the facilities had not been offered to the complainant they would not have felt interested to purchase the plot at that high price. It has been held in U.P. Avas Evam Vikas Parishad v. Garima Shukla, I (1991) CPJ 1 (NC) that the Housing and Development Board was engaged in serving the public in the matter of providing housing by acquisition of land, developing of sites, construction of houses thereon and allotment of plots/houses to the public. The Board was clearly engaged in rendering service in consideration to the public and therefore those who were allotted plots/houses from the Board were clearly consumers falling within the definition in Section 2(1)(d)(ii) of the Act. It is further observed that under Section 2(1)(o) of the Act the definition of the term ''service'' is very comprehensive, it means service of any description including banking, financing, transport, supply of electrical or other energy, entertainment etc. It is further observed that this leaves no ground for doubt that the type of service which the Board rendered to the public for consideration was covered by Section 2(1)(o). The above observation are fully applicable to the present case. We are, therefore, of the view that the complainant is a consumer and the Commission has got the jurisdiction to try the complaint.

IT is next contended by the learned Counsel for the respondents that the present complaint does not fall within the definition of the word ''complaint''. We have duly considered the arguments but do not find any substance in it. The complaint inter-alia means the allegations in writing made by a complainant that the services mentioned in the complaint suffered from deficiencies in any respect. The word ''deficiency'' has also been defined in Section 2(1)(g). IT says that deficiency means any fault, imperfaction, short-coming or inadequacy, in the quantity, nature and manner of performance which has been undertaken to be performs by a person in pursuance of a contract or otherwise in relation to any service. From a reading of the above said definition it is clear that if a person undertake to do any service and it is not performed by him at all that will also amount to deficiency. The word ''fault'' has been defined in the Shorter Oxford Dictionary 1988 Edition, as ''default neglect''. The meaning of word ''default has been given in the same Dictionary as ''failure to act''. Thus it is evident that failure to act also comes within the definition of the word ''deficiency''. The complainant in addition to the allegations in the complaint has filed the brochure alongwith the complaint and the correspondence between the parties. Taking into consideration the allegations in the complaint and the documents, we are of the opinion that the present claim falls within the definition of the word ''complaint''. The next question that arises for determination is whether the complainant was ready on willing to perform his part of the agreement. The allegations in the complaint and the correspondence between the parties have been referred to above. The complainant time and again requested the respondents to transfer the plot to them but they on one pretext or the other did not do so. In the letter dated 6.9.90 they informed the complainant to act the registration done within 15 days from the date of issue of the letter and remit the balance payment on the delivery of registered document. In the letter dated 1.11.90 (exhibit-11) the respondent wrote to the complainants that they should get the land registered after six weeks from the date of the letter. From the aforesaid letters and the other letters between the parties it is evident that the complainants were ready and willing to perform their part of the agreement and the breach of the agreement was committed by the respondents. In the circumstances the complainants are entitled to the refund of the amount as claimed by them. The next question that arises for determination is whether the time was the essence of the contract. Normally in the transactions of immovable properties time is not considered to be the essence of the contract. In the recent case it is true that the agreement provided that the time shall be the essence of the contract. However, it is the respondents who committed the breach of the agreement. They had been postponing the date for transferring the plot. They are also unable to show that they had any title in the land. In the aforesaid circumstances it is to be inferred that the respondents never wanted that the time would be the essence contract. We are therefore, of the opinion that the time was not the essence of the contract.

THE Counsel for the complainants has further argued that in Section 12 of the Act it is stated that a complaint in relating to any service may be filed with the District Forum by the consumer to whom such services has been provided. He submits that unless service is rendered by a person no complaint can be filed against him. According to him in the present case no service has been rendered by the respondents and therefore so complaint could be filed against them. We have given our thoughtful consideration to the argument but do not find any substance therein. It is well settled that all the sections of an enactment are to be read harmoniously. We have already referred to the definitions of the words ''complaint'', ''consumer'', ''defect'' and ''service'' in the judgment. After taking into consideration the said Sections, we have held that the word ''deficiency'' includes default in rendering service. If Section 12 is read in conjunction with the aforesaid Sections it cannot be held, that if in pursuance of an agreement to provide service a person fails to provide that, a complaint cannot be filed against him under the Act. THErefore the contention of the learned Counsel is rejected.

THE last question that arises for determination is whether the complainant is entitled to interest and if so at what rate. THE respondents have used the money of the complainants for a long time, and the letter were deprived of its use. THErefore, in our view the complainant is entitled to interest by way of damages on the amount deposited by them. It is common knowledge that the rate of interest has gone very high. Even the banks have started paying interest @ 13% p.a. on fixed deposit. THErefore, we are of the view that the complainant is entitled to interest @ 16% p.a. and not @ 18% as claimed by them in their letters written to the respondent. THE learned Counsel for the respondents drew out attention to Clause 5 of the agreement wherein it is provided that incase of absence deletion of the farm land due to reasons within or beyond the control of the builders no claim monetary or otherwise would be accpeted. Nothing has been brought to our notice that the scheme for the farm land has been deleted from the plans nor such a plea has been taken in the written statement. THEre are no documents to show that the scheme has been abandoned. In the circumstances the said clause is not applicable to the present case. Before putting with the judgment another argument of the learned Counsel for the respondent, which has not been taken in the written statement, may be noticed. It is, that the complainant has filed an application for winding up of the respondent company in the High Court and therefore, the present complaint is not maintainable. In support of his argument he has referred to I (1991) CPJ 332 (NC). We do not agree with this submission of the learned Counsel as well. It is true that the complainant has filed an application for winding up but that is not a remedy for recovery of the amount. The remedy for winding up is available under Section 439 of the Companies Act not only to a creditor but to various other persons. The relief claimed in winding up proceedings is different than that which is claimed in a complaint. Thus there are different type of proceedings. Consequently, the present complaint cannot be dismissed on this ground. The case referred to by the learned Counsel for the respondents is distinguishable. In that case a writ had been filed by the complainant before the High Court claiming some reliefs which had been claimed before the National Commission. Thus the observations made in that case are of no help to the Counsel for the respondents. For the aforesaid reasons we accept the complaint and direct 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 shall also pay costs of this petition to the complainant which we assess at Rs. 3,000/-. The amount be paid within three months of the date of the order. Complaint accepted.