GAURAV VIJH S/O. MR. T.N. VIJH vs MANISH CHAWLA & ORS.

This appeal has been filed under section 19 read with section 21(a)(ii) of the consumer Protection Act, 1986 against the impugned order dated 19.05.2016, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in consumer complaint No. 417/2016, filed by the present appellant, vide which, the said complaint was ordered to be dismissed.

The appellant/complainant stated in the consumer complaint filed before the State Commission that OP-1&2 / respondents No. 1 & 2, Manish Chawla and Ankush Mehra respectively were running a company in the name of M/s. Chawla Reality Private Limited and were investing money as agents on behalf of clients. The said OP 1 & 2, acting in connivance with a Real Estate company called Supertech Limited had prompted him to invest his funds with that company. The complainant stated that out of fiduciary trust, he gave them a sum of 6 lakh vide cheque No. 127107 dated 23.07.2013, and he was assured that his money was invested for a few months only and promised to return the same by January 2014. Further, on their persuasion, he made a further payment of 5,84,546/- vide cheque No. 127115 dated 09.12.2013. He made it clear to the OPs that the money was being given for a short period only. The complainant alleged that the OP-1 & 2 had misappropriated the said money and parked the same with OP-3 real estate Company without his authorisation. The case of the complainant is that he never booked any flat with OP-3 and hence, his money had been misappropriated by the OPs by fraudulent means.

The complainant filed the consumer complaint in question, seeking direction to the OPs to pay a sum of 45,37,779/- alongwith further interest @24%. The State Commission vide impugned order dated 19.05.2016 dismissed the said complaint, observing as follows:-

"........... Firstly, there is no Builder Buyer''s agreement between the parties either signed or unsigned. In the absence of the same, no relationship of consumer is created.

Secondly, the gist of the complaint is that OPs have cheated him, misappropriated the amount, committed breach of trust. Infact, he filed the complaint with SHO PS- Cannaught Place and copy of this is placed at Page-23, for offence u/s 409/120-B/34 IPC. Such matter cannot be gone into in summary proceedings under Consumer Protection Act.

The complaint is dismissed in limini."

During hearing before me, the Ld. Counsel for the appellant/complainant reiterated the version given in the complaint, stating that he never booked any flat or property with the OP-3 builder, rather he had given the said amount for investment purposes only. The OP should, therefore, be directed to return his money alongwith interest as demanded through the consumer complaint. When asked about the details of any specific investment scheme etc., in which the complainant had invested the said funds, the learned counsel simply stated that the complainant had given money to OP-1 & 2 for investment purpose only.

An examination of the material on record and a perusal of the impugned order indicates that there is no agreement of any kind executed between the complainant and any of the OPs. It is also not clear as to under what scheme or purpose, the said money was given by the complainant to OP-1 & 2. In case his intention was to invest his funds in some scheme, it was his duty to ask for the details of such scheme before parting with the funds. The complainant is stated to have already filed a complaint with the Police under section 409/120B/34IPC for alleged breach of trust on the part of the OPs. The complainant is very well within his rights to file a civil suit also against the OPs for the recovery of the said money.

In so far as the applicability of the Consumer Protection Act, 1986 is concerned, the complainant has to be covered under the definition of ''Consumer'' as contained in section 2(d)(i) & (ii) of the said Act, under which a person who buys any goods or hires or avails of any service from the OP, can be considered to be a consumer. The definition of ''consumer'' has also been given in the said act as follows:-

""consumer" means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ''hires or avails of 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 but does not include a person who avails of such services for any commercial purposes;"

A plain reading of the above section and the facts and circumstances on record shows that the complainant has not been able to show specifically as to what service he had hired or availed of from the OPs. His own contention is that he never booked any property with OP-3 and OP-4 builders. He has also not been able to prove as to for what purpose or scheme, he handed over the said money to the OPs. It is evident, therefore, that the provisions of Consumer Protection Act, 1986 are not applicable in the present case. It is held, therefore, that the consumer complaint has been rightly ordered to be dismissed by the State Commission vide impugned order. The present appeal is, therefore, ordered to be dismissed in limini and the impugned order is upheld. There shall be no order as to costs.