HARMINDER KAUR vs HARYANA URBAN DEVELOPMENT AUTHORITY

BY this order we propose to dispose of above noted four revision petitions involving similar question of law and facts.

BRIEFLY put facts relevant for the disposal of these revision petitions are that the petitioners Harminder Kuar and Mandeep Kaur moved two applications each for allotment of plot in Sector 28, Panchkula, Haryana under the scheme floated by the OPs in the year 2006. Along with the application forms, the requisite earnest money was deposited. As per the scheme, the allotment was to be done by draw of lot. The draw of lot took place on 19.06.2006. Both the petitioners were not successful in the draw of lot. It is alleged that the OPs failed to refund the earnest money despite of several letters written to them. Ultimately, the earnest money was refunded without interest on 26.06.2008. The petitioners thus filed separate consumer complaints claiming that the failure of the OPs to pay interest on the earnest money retained for almost two years to be deficiency in service. The OPs/respondents admitted that the petitioners applied for the allotment of plots and deposited the earnest money. However, according to the OPs, they have not committed any deficiency in service because the cheques for refund after the draw of lot were sent to the petitioners at their address H.No. 255, Sector 35-A, Chandigarh by Registered A.D. Post but the cheques received back unclaimed. The OPs also raised a preliminary objection that the complainants have no locus standi to file the consumer complaints.

THE District Forum, Panchkula rejected the pleas of the OPs and allowed the complaints. The OPs were directed to pay the respective complainants interest @ 9% w.e.f. 20.09.2006 to 20.06.2008 when the refund was actually made.

SHRI Gurumukh Singh, A.R. of the petitioners has contended that the State Commission has fallen a grave error by holding that the petitioners are not the consumers as envisaged in the definition under Section 2 (1) (d) of the Consumer Protection Act, 1986. Expanding on the arguments of A.R. for the petitioners that the State Commission failed to appreciate that pursuant to the advertisement of the OPs, the petitioners had applied for allotment of plot and deposited earnest money along with their respective applications and therefore, it is clear case of hiring the service of the OPs and the petitioners squarely fall within the definition of ''consumer ''. Regarding the finding of the State Commission that there is no deficiency in service because the refund could not be made in time due to wrong address. It is argued that the aforesaid evidence is without any basis. Learned Shri Sudhir Bisla, Advocate for the OPs on the contrary has argued in support of the impugned order. Learned counsel argued that the State Commission has rightly relied upon the judgment of the National Commission in the matter of PunjabUrban Development Authority & Anr. Vs. Krishan Pal Chander, 2010 (CTJ) 415 (CP) and the judgment of the State Commission in the matter of Rourkela Development Authority Vs. Rourkela Consumers '' Front, 2009 CTJ 1166 (CP) (SCDRC to conclude that the complainants are not covered by the definition of consumer as provided in Section 2(1) (d) of the Consumer Protection Act.

THE first issue for determination in these revision petitions is whether or not the petitioners fall within the definition of ''consumer '' as defined under Section 2(1)(d) of the Consumer Protection Act?

FROM the pleadings of the parties, it is evident that the complaints in question have been filed claiming deficiency in service on the part of the OPs. The definition of consumer availing or hiring service is given in Section 2 (1) (d) (ii) of the Consumer Protection Act, which is reproduced thus:- "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; Explanation. - For the purposes of this clause, "commercial purpose " does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment; "

On reading of the above, it is clear that consumer is a person who hires or avails any service for consideration. In the instant case, admittedly pursuant to the scheme floated by the OPs, the petitioners applied for allotment of flats in Sector 28, Panchkula. They admittedly deposited earnest money along with the applications. The purpose of depositing earnest money was to ensure that the OPs would include the names of the petitioners in the draw of lot and if they were found successful, they would be allotted the plots otherwise their earnest money would be refunded to them within a reasonable period. Admittedly, the OPs accepted the earnest money, meaning thereby that they had agreed to provide aforesaid service to the petitioners for consideration, i.e. the earnest money deposited with them. Thus, in our considered view, the petitioners are squarely covered under the definition of the ''consumer '' as defined under Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 and the State Commission has committed a grave error holding that they are not the consumers. The above noted judgments relied upon by learned Shri Bisla are of no avail to the respondents as aforesaid judgments are based upon the distinct facts of those matters. In our view the State Commission has fallen in grave error by failing to appreciate that acceptance of the earnest money along with the applications for including the name of the complainant in the draw of lot amounts to agreeing to provide the service to the complainants.

THE State Commission has also held that there is no deficiency in service on the part of the OPs because the refund cheques were sent at the address of the complainants/petitioners but could not be delivered to them because of the wrong address. In our considered view, the aforesaid finding of the State Commission is without any basis. There is no evidence on record to show that the cheques of refund were actually dispatched to the respondents by registered A.D. post and were received back unclaimed. No doubt the OPs/respondents have placed on record photocopies of the refund orders dated 20.09.2006 but this alone is of no avail to the OPs unless it is shown those refund orders were actually delivered to the comlainants/petitioners in person or dispatched to them at the correct address mentioned in their respective applications. The OPs has failed to file a cogent evidence of dispatch of the refund orders. It is not bothered to place on record the so called unclaimed registered envelope, vide which the refund orders were sent. Vide proceedings dated 25.04.2013 we directed the Chief Administrator of the respondent authority to file specific affidavit after verification of facts. Pursuant to the said order, the OPs filed an affidavit of Sh. A.K. Singh, Chief Administrator, HUDA wherein it is claimed that the refund orders were prepared on 20.09.2006 and dispatched at the correct address of the complainants through registered A.D. post. Though, it is mentioned in the affidavit that postal receipts are attached but we do not find any postal receipts annexed with the affidavit. The OPs however has annexed to the affidavit the copy of the dispatch register entry dated 30.09.2006 whereby the refund orders are claimed to have been sent to the complainants. This entry only mention of the dispatch of the refund orders without mentioning the names and address of the person to whom refund orders were sent. In absence of aforesaid details, it is difficult to conclude that the refund orders were actually sent to the addresses of the complainants by registered A.D. post. Onus of proving the dispatch of refund order within reasonable time was on the OPs, which onus OPs have miserable failed to discharge. Therefore, we are of the opinion that the State Commission has committed a grave error in holding that the deposit amount could not be refunded due to wrong address.

IN view of the discussion above, we are of the opinion that the orders of the State Commission suffer from material infirmity. Accordingly the revision petitions are allowed and the impugned orders of the State Commission are set aside and the orders of the District Forum are restored. The revision petitions disposed of accordingly.