Magrath Property Developer vs A.S. Veeranna

THIS revision petition has been filed by petitioner against order dated 9.3.2011 passed by State Commission in Appeal No. 1259 of 2010 - M/s. Magrath Property Developers v. A.S. Veeranna, by which while dismissing appeal, order of District Forum allowing complaint was upheld.

BRIEF facts of the case are that complainant/respondent booked flat No. 523 in the project floated by the opposite party/petitioner and total cost of construction was Rs. 50,31,250/ -. On 8.8.2005, complainant paid Rs. 5,35,937/ - and balance amount was agreed to be paid in instalments and opposite party promised to deliver possession within 36 months. Opposite party failed to obtain occupancy certificate and deliver possession though complainant had paid Rs. 74,60,834/ - and still willing to pay remaining amount. Alleging deficiency on the part of opposite party, complainant filed complaint before District Forum. Opposite party No. 1 resisted complainant and submitted that complainant purchased six apartments in the said project and had already sold five apartments. Complainant''s intention was to get more profit and complainant does not fall within the purview of ''consumer''. It was further stated that complainant was defaulter in making payment of EMI. Occupancy certificate was delivered by B.B.M.P. and was issued on 1.8.2009. It was further submitted that complainant was asked to arrange balance payment and registration charges which he did not pay, hence, there was no deficiency and prayed for dismissal of complaint. Opposite party No. 2 did not appear and was proceeded ex -parte. Learned District Forum after hearing both the parties allowed complaint and directed opposite parties to pay jointly and severally Rs. 8,86,347/ - as interest and further directed to pay compensation of Rs. 1.00 lakh and Rs. 10,000/ - as cost. Appeal filed by opposite party was dismissed by Learned State Commission vide impugned order against which this revision petition has been filed. None appeared for respondent even after service and he was proceeded ex -parte.

HEARD Learned Counsel for petitioner and perused record.

LEARNED Counsel for petitioner submitted that as complainant booked six flats, out of which five were sold by him on profit, complainant did not fall within the purview of ''consumer'' even then Learned District Forum committed error in allowing complaint and Learned State Commission further committed error in dismissing appeal, hence, revision petition be allowed and impugned order be set aside. Complainant has, nowhere, mentioned in the complaint about purchase of six flats but opposite party in its written statement pleaded that complainant purchased six apartments out of which five have already been sold. Opposite party has also placed on record agreement for purchase of flats. Not only this, complainant while filing reply to Memo of Appeal, admitted that he booked six apartments but has made most of payment towards the same. It was further explained by him that on account of booking of six apartments at a stretch, there was likelihood for delay in payment of instalments.

THUS , it becomes clear that admittedly complainant booked six flats out of which five have already been sold by him.

LEARNED District Forum observed as under: - - "Even if he has purchased 5 other properties and sold, that is not material because we are concerned with his intention relating to this property. Hence, just because, he has sold other property, it cannot be inferred that he intends to sell this property also. There is no other material to hold that the intention of the complainant was to resale this property. In the absence of such material, the contention of the opposite parties that he is not a ''consumer'' is not acceptable. Hence, this point is held in favour of the complainant."

Learned State Commission in para 10 of the order observed as under: - - "Of course, OP/appellant has contended that complainant is not a ''consumer''. This contention has no basis. Complainant entered into an agreement with the opposite party for the purpose of purchase of flat of his choice. Even if he has purchased another five or six flats in the said block it is his choice, he may be having good number of family members, to accommodate them, he might have chosen to purchase the flats, OP collected the huge amount for each flats. If the OP felt that the complainant is booking the said flat and purchasing the said flat for commercial purpose or for resale to gain more profit nothing prevented them to stop the booking of the flat. They would have intimated the complainant that they will book one flat for one family or for one person, it is not done."

There is nothing on record that complainant booked six flats to accommodate all his family members and Learned State Commission without any basis assumed that flats were booked for his family members. Had it been so, he would not have sold five flats and generated profit. But, it is admitted fact that complainant booked six flats, so, he does not fall within the purview of ''consumer'' in the light of judgment passed by me in First Appeal No. 1219 of 2014 -Indrajit Dutta v. Samriddhi Developers Pvt. Ltd. & Ors. and judgment of coordinate bench of this Commission in Consumer Complaint No. 159 of 2012 - Anit Dutt v. Business Park Town Planners Ltd. (B.P.T.P.) and First Appeal Nos. 365, 366, 367, 464, 465 & 472 of 2006 - DLF Limited & Ors. v. Abdul Azim & Ors.

ONCE complainant does not fall within the purview of ''consumer'', Learned District Forum committed error in allowing complaint and Learned State Commission further committed error in dismissing appeal and complaint was liable to be dismissed.

CONSEQUENTLY , revision petition filed by the petitioner is allowed and impugned order dated 9.3.2011 passed by Learned State Commission in Appeal No. 1259 of 2010 - M/s. Magrath Property Developers v. A.S. Veeranna; and order of District Forum dated 24.2.2010 passed in Consumer Complaint No. 1068 of 2009 - A.S. Veerana v. M/s. Magrath Property Developers & Anr., are set aside and complaint stands dismissed with no order as to costs.