Madhu Sharma Vs. Haryana Urban Development Authority Through Its Chairman/Estate Officer, Faridabad (Haryana) - Court Judgment

SooperKanoon Citationsooperkanoon.com/1146055
CourtNational Consumer Disputes Redressal Commission NCDRC
Decided OnMay-24-2013
Case NumberRevision Petition No. 1105 of 2012
JudgeV.B. GUPTA, PRESIDING MEMBER & THE HONOURABLE MRS. REKHA GUPTA, MEMBER
AppellantMadhu Sharma
RespondentHaryana Urban Development Authority Through Its Chairman/Estate Officer, Faridabad (Haryana)
Excerpt:
consumer protection act, 1986 - section: 21 (b); poor lady was denied kiosk booth 창€“ as per the demand of respondent the complainant deposited a sum of rs.1,33,500/- respondent further demanded rs.65,926/- the district forum passed orders against the complainant 창€“ the state commission opined that complainant purchased the booth in open auction thus the consumer fora have no jurisdiction 창€“ court held, the complaint lodged does not fall within the provisions of consumer protection act. (paras 1, 2, 4) cases referred: 1.ut chandigarh administration and anr. vs. amarjeet singh and ors. (2009) 4 scc 660 comparative citation: 2013 (3) cpr 211 rekha gupta, member revision petition no.1105 of 2012 has been filed against the order dated 5.12.2011, passed by haryana state consumer disputes redressal commission, panchkula (short, œstate commission?) in first appeal no.2025 of 2004. the brief facts as given in the complaint by petitioner/complainant are that the respondent/opposite party as per the auction of 29.1.1991, allotted her by sale a commercial kiosk bearing no.45 in sector 15-a-ii at faridabad against the price of rs.99,300/- measuring 6-9 x 12-1½?. the petitioner as per terms and conditions on several occasions, deposited the sum of rs.1,33,500/- against the price of rs.99,300/-. as per letter dated 17.3.1997, and the account statement dated 13.3.1997, the respondent had demanded a payment of rs.65,926/- from the petitioner, whereas this demand of rs.65,926/- of the respondent is illegal, arbitrary and against the terms and conditions of the said allotment letter. the respondent illegally and arbitrarily charged interest against the terms and conditions of the allotment letter. the respondent in spite of the payment of more than 25% of the price has failed to deliver possession of the said kiosk to the petitioner against the terms and conditions of allotment letter. respondent - huda has taken the following preliminary objections in its written statement:- the kiosk in question was purchased in auction and as per terms and conditions, the present case does not come within the ambit of the provisions of the consumer protection act, 1986. similar observations were made in national disputes redressal commission in f.a.o. no.80 of 1992 titled œramesh chand vs. huda?. as such, the present petition/complaint is not maintainable before the district forum. since the petitioner has not availed of the remedy of filing an appeal before the administrator, huda, faridabad exercising the power of chief administration, huda and as such, the present petition is liable to be dismissed. the jurisdiction of the district forum is barred under section 50 of the huda act to entertain and try the present complaint. the present complaint relates to immoveable property and as such, does not come within the definition of goods under the œsales of goods act? and as such, the complaint desires dismissal on this score alone. the site in question being immovable property and a commercial site and as such, the present complaint cannot be launched under the provisions of the consumer protection act, 1986. the present complaint is not maintainable as the site in question was purchased in auction. the petition deserves to be dismissed as the complainant has contravened the terms and conditions of allotment by not depositing the amount due neither within the stipulated period nor till today. further, that the petitioner has failed to adhere to the terms and conditions of allotment and has not deposited the amount due from and payable by her in respect of the kiosk in question and an amount of rs.65,926/- was due from the petitioner and she was duly informed by the answering respondent vide memo no.568 dated 17.3.1997 but she failed to do so. even, the copy of the statement of account was sent to her. she was again requested to deposit the amount due vide office memo no.1068 dated 26.5.1997. she was also intimated that in case of non-deposit of the amount due, resumption proceedings will be started. it was admitted they had raised a demand of rs.65,926/-. interest has been charged as per the terms and conditions of allotment. as a matter of fact, as per terms and conditions of allotment, the amount of remaining 75%, i.e., after depositing 25% price of the kiosk, was either payable in lump sum within 60 days from the date of allotment or in installments alongwith interest at the rate of 10% per annum. it was also mentioned on the last page of the allotment letter that in case of delayed payment, 10% per annum interest was chargeable. it was clearly mentioned in the letter of allotment that after the deposit of 25% of the price of the kiosk, as per clause 5 of the letter of allotment, the petitioner was at liberty to take possession of the kiosk in question. district consumer disputes redressal forum, faridabad (for short, œdistrict forum?) vide their order dated 29.6.2009 came to the following conclusions; œfrom the perusal of the pleadings of the parties, evidence adduced by both the parties and after hearing the arguments of the parties, the forum is of the opinion that the dispute is in between the parties is regarding statement of account. the second issue is regarding handing over and taking over the possession of the kiosk in question. the complainant has claimed that she has deposited the draft of rs.25,000/- with the respondent, which has not been reflected in her account. the complainant has also claimed that the account has not been prepared in accordance with the terms and conditions of the letter of allotment. the forum in these circumstances, is of the opinion that the respondent has failed to give complete details of account by making a bifurcation of the same. this is a big negligence on the part of the respondent. the forum has also made up an opinion that it was fault on the part of the complainant that she has not applied for the possession of the kiosk in question after depositing of the amount to the extent of 25% of the total sale price. to satisfy the grouse of the complainant following order is passed :- the respondent is ordered to supply the complete statement of account of the complainant regarding this kiosk in question to the complainant, after considering that the complainant has not applied for possession of the kiosk after 25% deposit of the sale price. however, there is no order as to costs in the peculiar circumstances of the case. it is also ordered that in case there remains some dispute regarding statement of account of the parties, then either party can file execution petition under section 27 of consumer protection act for the compliance of this order of the forum.? not satisfied with the order of district forum, the petitioner filed an appeal before the state commission. the state commission vide their order dated 5.12.2011, concluded that ; œundisputedly, the complainants had purchased the booth in question in an open auction held by the opposite party being the highest bidder on as and where is basis and no assurance was given by the opposite party as service provider. thus, the present case is covered by amarjeetsinghs case (supra), wherein it has been made clear that any grievance of the purchaser/lessee, who purchases the site in an open auction, cannot be termed the œconsumer dispute? and the consumer fora have no jurisdiction to entertain and decide any complaint.? hence, this revision petition. the main ground of the revision petition are as follows ; the order of the state commission holding that the case of the petitioner does not fall within the provisions of consumer protection act is wrong. the state commission has wrongly held that the consumer forum have no jurisdiction to entertain and decide the complaint. state commission wrongly held that the booth purchased by the petitioner in open auction facing a booth (kiosk) and as such, the dispute between the parties would not fall within the purview of consumer dispute. the state commission and the district forum under the c.p. act did not appreciate the fact that the petitioner for the purpose of her own use for herself employment purchased the booth (kiosk) in sector 15 a-ii, faridabad. the respondent instead of delivering the possession of the booth refunded the amount of rs.1,09,687/-since, the petitioner is a poor lady and as such, the amount was accepted by her under protest without prejudice to her right to take delivery of the possession. we have heard authorized representative of the petitioner and have also gone through the record carefully. it is also an indisputed fact admitted by the petitioner in the revision petition that the respondent had refunded the amount of rs.1,09,687/- and the petitioner has accepted the same. once she has accepted the money, she ceases to be a œconsumer? even if for argument sake she was earlier. the state commission had in a very well-reasoned order come to the conclusion that the petitioner had purchased the kiosk in question in an open auction held by the respondent. thus, the present case was covered by œut chandigarh administration and anr. vs. amarjeet singh and ors. (2009) 4 scc 660?, wherein, it has been made clear that any grievance of the purchaser/lessee, who purchases the site in an open auction cannot be termed the œconsumer dispute? and the consumer fora have no jurisdiction to entertain and decide any complaint. hence, the petitioners appeal to the extent of seeking prayer for compensation of rs.3 lakhs was dismissed without touching the relief already allowed by the district forum. in the revision petition, petitioner has for the first time pleaded that said kiosk was purchased for the purpose of her own use for self-employment. such a plea has not been made in her complaint before the district forum and as such, cannot be entertained now. in the above circumstances, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under section 21 (b) of act. since, state commission has given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petition is hereby, dismissed with cost of rs.5,000/- (rupees five thousand only). petitioner is directed to deposit the cost by way of demand draft in the name of consumer welfare fund as per rule 10a of consumer protection rules, 1987, within four weeks from today. in case, petitioner fails to deposit the said cost within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization. list on 23.8.2013 for compliance.
Judgment:

Rekha Gupta, Member

Revision Petition No.1105 of 2012 has been filed against the order dated 5.12.2011, passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (short, œState Commission?) in First Appeal No.2025 of 2004.

The brief facts as given in the complaint by petitioner/complainant are that the respondent/opposite party as per the auction of 29.1.1991, allotted her by sale a commercial Kiosk bearing No.45 in Sector 15-A-II at Faridabad against the price of Rs.99,300/- measuring 6-9 x 12-1½?. The petitioner as per terms and conditions on several occasions, deposited the sum of Rs.1,33,500/- against the price of Rs.99,300/-.

As per letter dated 17.3.1997, and the Account Statement dated 13.3.1997, the respondent had demanded a payment of Rs.65,926/- from the petitioner, whereas this demand of Rs.65,926/- of the respondent is illegal, arbitrary and against the terms and conditions of the said allotment letter. The respondent illegally and arbitrarily charged interest against the terms and conditions of the allotment letter.

The respondent in spite of the payment of more than 25% of the price has failed to deliver possession of the said Kiosk to the petitioner against the terms and conditions of allotment letter.

Respondent - HUDA has taken the following preliminary objections in its written statement:-

The Kiosk in question was purchased in auction and as per terms and conditions, the present case does not come within the ambit of the provisions of the Consumer Protection Act, 1986. Similar observations were made in National Disputes Redressal Commission in F.A.O. No.80 of 1992 titled œRamesh Chand Vs. HUDA?. As such, the present petition/complaint is not maintainable before the District Forum.

Since the petitioner has not availed of the remedy of filing an appeal before the Administrator, HUDA, Faridabad exercising the power of Chief Administration, HUDA and as such, the present petition is liable to be dismissed.

The jurisdiction of the District Forum is barred under Section 50 of the HUDA Act to entertain and try the present complaint.

The present complaint relates to immoveable property and as such, does not come within the definition of Goods under the œSales of Goods Act? and as such, the complaint desires dismissal on this score alone.

The site in question being immovable property and a commercial site and as such, the present complaint cannot be launched under the provisions of the Consumer Protection Act, 1986.

The present complaint is not maintainable as the site in question was purchased in auction.

The petition deserves to be dismissed as the complainant has contravened the terms and conditions of allotment by not depositing the amount due neither within the stipulated period nor till today.

Further, that the petitioner has failed to adhere to the terms and conditions of allotment and has not deposited the amount due from and payable by her in respect of the Kiosk in question and an amount of Rs.65,926/- was due from the petitioner and she was duly informed by the answering respondent vide Memo No.568 dated 17.3.1997 but she failed to do so. Even, the copy of the statement of account was sent to her. She was again requested to deposit the amount due vide office Memo No.1068 dated 26.5.1997. She was also intimated that in case of non-deposit of the amount due, resumption proceedings will be started. It was admitted they had raised a demand of Rs.65,926/-.

Interest has been charged as per the terms and conditions of allotment. As a matter of fact, as per terms and conditions of allotment, the amount of remaining 75%, i.e., after depositing 25% price of the Kiosk, was either payable in lump sum within 60 days from the date of allotment or in installments alongwith interest at the rate of 10% per annum. It was also mentioned on the last page of the allotment letter that in case of delayed payment, 10% per annum interest was chargeable.

It was clearly mentioned in the letter of allotment that after the deposit of 25% of the price of the Kiosk, as per clause 5 of the letter of allotment, the petitioner was at liberty to take possession of the Kiosk in question.

District Consumer Disputes Redressal Forum, Faridabad (for short, œDistrict Forum?) vide their order dated 29.6.2009 came to the following conclusions;

œFrom the perusal of the pleadings of the parties, evidence adduced by both the parties and after hearing the arguments of the parties, the Forum is of the opinion that the dispute is in between the parties is regarding statement of account. The second issue is regarding handing over and taking over the possession of the Kiosk in question. The complainant has claimed that she has deposited the draft of Rs.25,000/- with the respondent, which has not been reflected in her account. The complainant has also claimed that the account has not been prepared in accordance with the terms and conditions of the letter of allotment. The Forum in these circumstances, is of the opinion that the respondent has failed to give complete details of account by making a bifurcation of the same. This is a big negligence on the part of the respondent. The Forum has also made up an opinion that it was fault on the part of the complainant that she has not applied for the possession of the Kiosk in question after depositing of the amount to the extent of 25% of the total sale price. To satisfy the grouse of the complainant following order is passed :-

The respondent is ordered to supply the complete statement of account of the complainant regarding this Kiosk in question to the complainant, after considering that the complainant has not applied for possession of the Kiosk after 25% deposit of the sale price. However, there is no order as to costs in the peculiar circumstances of the case. It is also ordered that in case there remains some dispute regarding statement of account of the parties, then either party can file Execution petition under section 27 of Consumer Protection Act for the compliance of this order of the Forum.?

Not satisfied with the order of District Forum, the petitioner filed an appeal before the State Commission. The State Commission vide their order dated 5.12.2011, concluded that ;

œUndisputedly, the complainants had purchased the booth in question in an Open Auction held by the opposite party being the highest bidder on as and where is basis and no assurance was given by the opposite party as service provider. Thus, the present case is covered by AmarjeetSinghs case (supra), wherein it has been made clear that any grievance of the purchaser/lessee, who purchases the site in an open auction, cannot be termed the œConsumer Dispute? and the Consumer Fora have no jurisdiction to entertain and decide any complaint.?

Hence, this revision petition.

The main ground of the revision petition are as follows ;

The order of the State Commission holding that the case of the petitioner does not fall within the provisions of Consumer Protection Act is wrong. The State Commission has wrongly held that the Consumer Forum have no jurisdiction to entertain and decide the complaint. State Commission wrongly held that the Booth purchased by the petitioner in open auction facing a Booth (Kiosk) and as such, the dispute between the parties would not fall within the purview of consumer dispute. The State Commission and the District Forum under the C.P. Act did not appreciate the fact that the petitioner for the purpose of her own use for herself employment purchased the Booth (Kiosk) in Sector 15 A-II, Faridabad.

The respondent instead of delivering the possession of the Booth refunded the amount of Rs.1,09,687/-Since, the petitioner is a poor lady and as such, the amount was accepted by her under protest without prejudice to her right to take delivery of the possession.

We have heard Authorized Representative of the petitioner and have also gone through the record carefully.

It is also an indisputed fact admitted by the petitioner in the revision petition that the respondent had refunded the amount of Rs.1,09,687/- and the petitioner has accepted the same. Once she has accepted the money, she ceases to be a œConsumer? even if for argument sake she was earlier.

The State Commission had in a very well-reasoned order come to the conclusion that the petitioner had purchased the Kiosk in question in an open auction held by the respondent. Thus, the present case was covered by œUT Chandigarh Administration and Anr. Vs. Amarjeet Singh and Ors. (2009) 4 SCC 660?, wherein, it has been made clear that any grievance of the purchaser/lessee, who purchases the site in an open auction cannot be termed the œConsumer Dispute? and the Consumer Fora have no jurisdiction to entertain and decide any complaint. Hence, the petitioners appeal to the extent of seeking prayer for compensation of Rs.3 lakhs was dismissed without touching the relief already allowed by the District Forum.

In the revision petition, petitioner has for the first time pleaded that said Kiosk was purchased for the purpose of her own use for self-employment. Such a plea has not been made in her complaint before the District Forum and as such, cannot be entertained now.

In the above circumstances, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, State Commission has given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petition is hereby, dismissed with cost of Rs.5,000/- (Rupees Five Thousand only).

Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Welfare Fund as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization.

List on 23.8.2013 for compliance.