PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
All these appeals arise out of the similar order of the State Commission involving similar question of law; hence, decided by common order.
2. FA No.1079 of 2014, FA No. 1080 of 2014 and FA No. 1081 of 2014 have been filed by the appellant against the order dated 29.08.2014 passed by the State Consumer Disputes Redressal Commission, West Bengal (in short, ‘the State Commission’) in Misc. Application being No. 155/2014 in CC/46/2013, Misc. Application being No. 156/2014 in CC/47/2013 and Misc. Application being No. 158/2014 in CC/48/2013 by which, while allowing miscellaneous applications complainants were dismissed as not maintainable.
3. Brief facts of the case are that complainant/appellant entered into buyers agreement with OPs/respondents for purchasing one row house in each complaint for consideration of Rs.40,01,000/- and OP provisionally allotted row house No. B-02/18, B-04/04 and B-04/05 to the complainant. Complainant paid about 70% of the sale consideration amount to the OP, but OP demanded some more amount on various grounds, though, construction work had not been in progress as promised by OP. Alleging deficiency on the part of OP, complainant filed 3 separate complaints against OP with direction to deliver possession of the units and award damages and interest. OP moved separate miscellaneous applications in all the cases and submitted that complainant had booked three row houses in the project of OP and invested huge amount for earning profit on resale; so, complainant does not fall within purview of consumer and complaints are not maintainable which may be dismissed. Learned State Commission after hearing both the parties while allowing application dismissed complaints as not maintainable against which, these appeals have been filed.
4. Learned Counsel for the Respondent no. 1 & 2 apprised that there is no post of Respondent no. 3.
5. Heard learned Counsel for the parties finally at admission stage and perused record.
6. Learned Counsel for the appellant submitted that inspite of proof of the fact that complainant obtained three separate loans along with each son from the Bank and row house was booked for each of his son, learned State commission committed error in dismissing complaints; hence, appeals be allowed and impugned order be set aside and matter may be remanded back to the learned State Commission for deciding complaints on merits. On the other hand, learned Counsel for the respondents submitted that order passed by learned State Commission are in accordance with law; hence, revision petitions be dismissed.
7. It is not disputed that complainant booked three units in his own name with OP. It is also not disputed that in each membership application form, complainant nominated Suresh Kumar Aggarwal as his nominee. It is also not disputed that complainant has nowhere pleaded in the complaint that he booked unit of row house for his sons. In such circumstances, it cannot be presumed that complainant booked units for settling his three sons in separate units. Merely because complainant obtained loan from ICICI Bank for each unit along with his different sons, it cannot be presumed that complainant booked units for his sons. Had loan been obtained by each of his son separately for making payment to the OP, it might have been inferred that complainant being father booked units in his name, though; they were for his three sons. Complainant has made nominee to his son Suresh Kumar Aggarwal in all the three units. Had he made different son nominee in each unit it could have been presumed that units were booked for different sons. In the absence of any cogent evidence on record, learned State Commission has not committed any error in observing that complainant booked more than one unit for commercial purpose.
8. Learned Counsel for the petitioner has drawn my attention towards judgment of this Commission in 2013 (4) CPR 24 (NC) – Anit Dutt Vs. Business Park Town Planners Ltd. (BPTP) on which learned State Commission has also placed reliance in which order dismissing complaint was upheld as there was no iota of evidence to show that consideration was paid by any other member of the family and on the contrary, letter clearly revealed that plots were purchased for re-selling the same. No doubt, in the case in hand complainant had obtained three separate loans along with his different son in each loan application, but as units were booked in complainant’s name and different sons were not made nominee in each form and only one son was made nominee for all units and there was no pleading in the complaints that units were booked for settling each son, it can very well be observed that complainant booked three units in his own name for commercial purpose and in such circumstances, he does not fall within purview of consumer.
9. In the light of above discussion, I do not find any illegality in the impugned orders and all appeals are liable to be dismissed.
10. Consequently appeals filed by the appellants are dismissed with no order as to costs. |
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