DCM LIMITED vs Major R D Gaind

RESPONDENT is a Hindu Undivided Family. The respondent, through its karta filed a consumer complaint in District Forum Kashmiri Gate, Delhi that the complainant booked a flat in the development project of ''DCM Techno Plaza" undertaken by the petitioner opposite party on payment of Rs.1,65,000/ - vide receipt dated 18.11.02 An allotment letter was issued in favour of the complainant. Pursuant to the said booking, an agreement to sale was entered into between the parties on 16.1.1997. As per the agreement, petitioner opposite party had agreed to deliver the possession of the flat within five years i.e. latest by 15.01.2002 and in the event of failure to do so, the opposite party was required to refund the booking amount alongwith 12% interest thereon. According to the complainant, the petitioner opposite party failed to complete the construction within the stipulated period of five years. Therefore, complainant vide notice dated 07.12.2002 called upon the petitioner opposite party to refund the booking amount together with interest. The opposite party, however, failed to comply with the demand notice. Ultimately, because of the stubborn attitude of the opposite party and also under the pressure of uncertainity and the harassment at the hand of the opposite party, the complainant transferred his booking to M/s Atlantic Commercial Company Limited at the behest of the opposite party. It is claimed by the complainant that M/s Atlantic Commercial Company Limited is owned by the opposite party company and the said two companies are interconnected by the commonness of directors. The complainant after surrendering his interest to M/s Atlantic Commercial Company Limited served notice to the opposite party to pay 12% interest on the deposited amount of Rs.1,65,000/ - in terms of clause 19 of the agreement between the parties but the opposite party failed to comply with the notice. Being aggrieved, the respondent filed a consumer complaint.

THE petitioner opposite party resisted the complaint. In the written statement petitioner admitted booking of the flat by the respondent complainant by depositing a sum of Rs.1,65,000/ -. The execution of agreement pertaining to subject flat was also admitted. The petitioner, however, denied the allegations regarding deficiency in service. So far as transfer of interest by the complainant to M/s Atlantic Commercial Company Limited is concerned, it was not denied.

LEARNED District Forum on consideration of the pleadings and the evidence allowed the complaint and directed the petitioner opposite party to pay to the complainant interest @ 12% p.a. on the amount of Rs.1,65,000/ - w.e.f. 16.01.1997 to 18.11.2002. Besides Rs.5,000/ - was awarded as compensation and Rs.3000/ - was awarded as cost of litigation.

BEING aggrieved of the order of the District Forum, the petitioner preferred an appeal. The State Commission vide the impugned order concurred with the findings of the District Forum and dismissed the appeal.

LEARNED Shri Gaurav Mitra, Advocate for the petitioner has contended that the impugned order is based upon incorrect appreciation of law and facts. It is argued that State Commission has failed to appreciate that, the respondent complainant entered into an agreement with M/s Atlantic Commercial Company Limited and transferred his interest in the subject flat to the said company in consideration of Rs.1,65,000/ - and wrote a letter to the petitioner informing about transfer of subject booking in favour of M/s Atlantic Commercial Company Limited and also gave a no objection for substitution of the name of the said company in its place. It is contended that in view of the said transaction, the complainant is left with no interest in the subject flat and as such he could not have maintained the consumer complaint. In support of this contention, learned counsel for the petitioner has drawn our attention to the copies of relevant receipt dated 18.11.2002, letter dated 18.11.2002 addressed to DCM Limited as also No Objection for substitution dated 18.11.2002, execution of which is not denied by the respondent complainant. It is contended that the State Commission has rejected this plea on the strength of judgement of United India Insurance Company Vs. Ajmer Singh General Mills, 1999 6 SCC 400 without appreciating that this is not the case of settlement between the parties but it is a case of transfer and assignment of interest by the respondent complainant in favour of third party.

THE respondent complainant on the contrary has argued in support of the impugned order. It is submitted on behalf of the complainant that foras below have rightly allowed the complaint in terms of agreement between the parties, which specifically provides that if the petitioner fail to fulfil his obligation to deliver possession within five years, the complainant shall be entitled to refund of the deposited amount of Rs.1,65,000/ - with 12% interest p.a. So far as transfer / assignment of interest in the subject flat is favour of M/s Atlantic Commercial Company Limited is concerned, it is argued that the complainant was coerced into entering into such transaction with the said company. As such, the State Commission has rightly applied the ratio of judgment of Hon''ble Supreme Court in Ajmer Singh General Mills .

ON perusal of record, we find that vide receipt dated 18.11.2002, the respondent complainant transferred its interest in the subject flat in favour of M/s Atlantic Commercial Company Limited and addressed a letter dated 18.11.2002 to M/s DCM Limited intimating them about said transfer and also gave no objection for substitution of the name of the transferee company against his allotment. From the aforesaid documents, it is clear that on 18.11.2002, the petitioner had transferred his interest in the subject flat in favour of M/s Atlantic Commercial Company Limited. Thus, after the transfer of interest, the complainant was left with no interest or right in the subject flat and as such, the relationship of consumer and service provider between the parties came to an end.

CONTENTION of the respondent complainant is that M/s Atlantic Commercial Company Limited is only a front company on behalf of DCM Ltd. and the complainant was coerced and harassed by the petitioner opposite party to enter into aforesaid transaction of transfer of his allotment in favour of M/s Atlantic Commercial Company Limited. Thus, the aforesaid transaction is not a voluntary transaction and in view of the judgment of the Supreme Court in Ajmer Singh General Mills , the foras below have rightly rejected the plea of the petitioner opposite party and dismissed the appeal.

IN order to succeed on this plea, the respondent is supposed to establish that M/s Atlantic Commercial Company Limited is sister concern or a front company on behalf of DCM Ltd. In this regard, the respondent complainant has failed to show us any cogent evidence which may establish that M/s Atlantic Commercial Company Limited is either a front company or sister concern or subsidiary of the petitioner. Respondent has failed to point out any evidence regarding commonness of directors in the petitioner company and the said company. Thus, in our view the proximity between the petitioner company and M/s Atlantic Commercial Company Limited is not established. That being the case, it can be safely inferred that on 18.11.2002, the respondent complainant by independent transaction had transferred his interest in the subject flat to M/s Atlantic Commercial Company Limited and with that transfer, the relationship of consumer and service provider between the parties came to an end. Therefore, the respondent complainant has no locus standi to maintain the consumer complaint. The foras below thus have ignored the above important aspect of the case and exceeded their jurisdiction in allowing the consumer complaint. The impugned orders, therefore, cannot be sustained and are liable to be set aside.

IN view of discussion above, we allow the revision petition, set aside the impugned order and dismiss the complaint. Parties to bear their own costs.