NCDRC : no relationship of the consumer and service provider, iI the application for allotment was not considered,

5.       We have heard learned counsel for the parties and perused the record. The State Commission in para-5 of the impugned order has observed that the only argument raised by the learned counsel for the HUDA is that since the application submitted by the respondent/complainant was beyond the date fixed for submitting the application, the application was not considered for allotment and the accompanying bank draft was not encashed. Despite of noting this fact the State Commission has failed to appreciate that if the application for allotment sent by the complainant was not considered, no relationship of the consumer and service provider came into being as such the Consumer Fora had no jurisdiction to intervene in the matter. Therefore, under the circumstances, we are of the opinion that the impugned orders of the Fora below are without jurisdiction and liable to be set aside.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 3166 OF 2016

(Against the Order dated 18/12/2015 in Appeal No. 725/2015 of the State Commission Haryana)

HARYANA URBAN DEVELOPMENT AUTHORITY
Versus
JASWANT SINGH

Dated : 17 Apr 2017 

NCDRC ; Defective goods / services _Determination of pecuniary jurisdiction

7.       In the order dated 07.10.2016, passed by the three-member bench of this Commission in “Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd.” (supra), it is mentioned, that the following issue was, interalia, referred in FA No. 166/2016 and allied matters by a single-member bench of this Commission to the larger bench:-

“(i)     In a situation, where the possession of a housing unit has already been delivered to the complainants and may be, sale deeds etc. also executed, but some deficiencies are pointed out in the construction/ development of the property, whether the pecuniary jurisdiction is to be determined, taking the value of such property as a whole, OR the extent of deficiency alleged is to be considered for the purpose of determining such pecuniary jurisdiction.”

8.       The three-member bench of this Commission observed as follows on the above issue:-

“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore.”

9.       In the operative portion of the order it was stated as follows:-

“It is the value of the goods or services, as the case may be, and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction.”

10.     It is manifestly clear from the order passed by this Commission in “Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd.” (supra), that the value of the flat was to be taken into consideration for determining the pecuniary jurisdiction in the matter in hand.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 472 OF 2016

(Against the Order dated 03/03/2016 in Complaint No. 45/2016 of the State Commission Haryana)

SANJAY SAINI
Versus
M/S. SPAZE TOWER PVT. LTD.

NCDRC _consumer has to establish commercial space booked for earning livelihood

1. NCDRC in CC/123/2015  titled as RAVI KUMAR v/s  M/S. S.S. CONBUILD PVT. LTD on  Dated : 10 Apr 2017 said as under:

  3.Section 2(1)(d) of the Consumer Protection Act, to the extent it is relevant, provides that the term ‘consumer’ does not include a person who buys goods or hires or avails services for a commercial purpose, the only exception being the purchase of goods or hiring services by a person exclusively for the purpose of earning his livelihood by means of self-employment.  Therefore, since the premises in question admittedly, is a commercial premises, it being a shop on the first floor of a shopping centre, the complainant cannot be said to be a consumer UNLESS HE IS ABLE TO ESTABLISH that he had agreed to purchase the said premises for the purpose of earning his livelihood by means of self-employment therein.

2. NCDRC in CC/246/2013 titled as Mrs. PRITI ARORA, v/s M/s ARN INFRASTRUCTURE INDIA PVT. LTD, on Dated: 06 Apr 2017 said as under:

8.   Admittedly, the complainant had entered into multiple MOUs for booking commercial spaces in the commercial project.  Therefore, it cannot be disputed that complainant has hired / availed of services of the opposite party for commercial purpose.  Therefore, unless it is established that case of the complainant falls within the ambit of the Explanation to Section 2 (1) (d) of the Act in view of Exception carved out in the definition of consumer, complainant is excluded from the definition of consumer.

Mere submission of an application for allotment, which does not result either in allotment or registration and consequent inclusion in the awaiting list for such an allotment, does not confer upon him the status of a consumer

As far as a person who applies for allotment of a plot/flat is concerned, he will not be a consumer within the meaning of Section 2(1) (d) of the Act, if neither any allotment is made to him nor he is registered for and awaiting such an allotment. Such a person cannot be said to have hired or availed the services of the concerned development authority in connection with housing. Mere submission of an application for allotment, which does not result either in allotment or registration and consequent inclusion in the awaiting list for such an allotment, does not confer upon him the status of a consumer as defined under Section 2(1) (d) of the said Act.

National Consumer Disputes Redressal
Delhi Development Authority vs Shri Parveen Kumar & Ors.
on 29 January, 2015

REVISION

PETITION NO.3649 OF 2014 (From the order dated 18-03-2014 in FA No.556 of 2012 of the Punjab State Consumer Disputes RedressalCommission at Chandigarh)

Judgment reserved on 07-01-2015

 Judgment pronounced on 29.01.2015

complainant is not expected to wait for the delivery of possession of plot for indefinite period

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 499 OF 2017

(Against the Order dated 21/11/2016 in Appeal No. 135/2016 of the State Commission Punjab)

1. PUNJABURBAN PLANNING AND DEVELOPMENT AUTHORITY THROUGH ITS ESTATE OFFICER, BHAGU RAOD, NOW BDA, BHATINDA PUNJAB	...........Petitioner(s)
Versus
1. DARSHANA DEVI W/O. HARBANSH LAL BANSAL, R/O. HOUSE NO. 19118, STREET NO. 3, BIBIWALA ROAD, BHATINDA PUNJAB	...........Respondent(s)

Dated : 28 Mar 201
7


7.         In order to appreciate the learned counsel for the petitioner, it would be useful to have a look on clauses 12, 21 & 22  of the Letter of Intent for allotment dated 26.02.2013 which are reproduced as under:

12. Possession of plot shall be handed over to the allottee after completion of development works at site or 18 months from the date of issue of allotment letter whichever is earlier.

21.           In case terms and conditions of the letter of intent, as detailed above are acceptable, allottee is required to send his / her acceptance by registered post along with a demand draft of 15% price of the plot within 30 days of issue of Letter of intent ( excluding date of issue) subject to the conditions.

22.            In case of refusal to accept the offer, such refusal in writing through a registered post should be received within 30 days from the date of issue of Letter of Intent, 10% amount of earnest money shall be forfeited.  In the event, such refusal is received after a period of 30 days from the issue of Letter of Intent, entire earnest money deposited shall be forfeited.”

8.         No doubt, clause 12 of Letter of Intent do provide that the possession of the plot shall be handed over to the allottee after the completion of the development work at the site or within 18 months from the date of issue of allotment letter, whichever is earlier.  It is also true that neither the development work has been completed as yet nor any allotment letter has been issued in favour of the complainant who deposited the demanded 15% of the consideration amount in furtherance of Letter of Intent.  The question is does this mean that by providing the stipulation in clause 12, 21 & 22 of Letter of Intent, the opposite party can delay the delivery of possession of subject plot to the complainant for indefinite period?  Our answer to the question if a firm ‘No’.  Admittedly, by giving a lure of allotment of plot to the complainant, the petitioner opposite party has received 25% of the agreed consideration amount from the complainant way back in April 2013.  Till date no allotment letter has been issued in favour of the complainant.  On our query, learned counsel for the complainant stated that development work at the site is not yet complete. From this it is evident that petitioner has obtained 25% of the consideration amount about four years back and till date the petitioner is not in a position to deliver possession of the plot to the complainant.  The complainant is not expected to wait for the delivery of possession of plot for indefinite period.  The aforesaid conduct of the opposite party in itself amounts to unfair trade practice by which they are utilizing the money belonging to the gullible consumers without making a serious effort to ensure that the promised possession of the plot is delivered within a reasonable period.   The stipulation to the effect that possession shall be delivered within 18 months of the issue of allotment letter gives a clear indication that impression was given to the consumers that possession of the plot would be delivered within a reasonable period i.e. 2-2 ½ years, which implied promise has not been fulfilled by the opposite party.  Therefore, we do not find any reason to differ with concurrent finding of the Fora below that petitioner opposite party is guilty of deficiency in service bordering unfair trade practice.

Supreme Court : A party cannot claim anything more than what is covered by the terms of contract

Hon’ble Supreme Court has interalia held in the matter of Rajasthan State Industrial Development & Investment Corporation V. Diamond & Gem Development Corpn Ltd. (2013) 5 SCC 470,  as under:

“A party cannot claim anything more than what is covered by the terms of contract for the reason that contract is a transaction between the two parties and has been entered into with open eyes and understanding the nature of contract.  Thus, contract being a creature of an agreement between two or more parties has to be interpreted giving literal meanings unless, there is some ambiguity therein.  The contract is to be interpreted giving the actual meaning to the words contained in the contract and it is not permissible for the Court to make a new contract, however reasonable, if the parties have not made it themselves.  It is to be interpreted in such a way that its terms may not be varied.  The contract has to be interpreted without any outside aid. The terms of contract have to be construed strictly without altering the nature of the contract, as it may affect the interest of either of the parties adversely.  ( Vide United India Insurance Co. Ltd. V. harchand Rai Chandan Lal (2004) 8 SCC 644; AIR 2004 SC 4794) and Polymat India ( P) Ltd. Vs. National Insurance Co. Ltd. [ (2005) 9 SCC 174; Air 2005 SC 286].”