Dineshbhai H. Makwana vs Bhushan Umeshbhai Vyas

V.K. Jain, J

The complainant / appellant who is based in USA and is a US citizen filed two separate consumer complaints, alleging therein that he had booked two bungalows, bungalow No. 15 and Bungalow No. 16 with the respondent in a project namely 'Pushpak Hills Scheme'. This is also his case that as and when he came to India, he found that the other allottees had been given possession and were living in their respective bungalows allotted to them by the respondent. His allegation is that when he demanded possession of the bungalows booked by him, the respondent demanded more consideration, and therefore, he was compelled to make an additional payment of Rs.15.00 lacs to him. Since the possession of the allotted bungalow was not delivered to him, the complainant approached the concerned District Forum by way of two separate complaints, one in respect of bungalow No.15 and the other in respect of bungalow No.16.

The complaints were resisted by the respondent, who took a preliminary objection that the said complaints were barred by limitation. On merits, it was alleged that the complainant was a financer who had financed a loan of Rs.1.00 crore and that the allotment letters in respect of the bungalows were issued to him only by way of security of the amount taken as loan from him. It was also stated in the written version filed by the respondent that the bungalow in question had been allotted to their true purchaser on 15.12.2004 and possession was also given to them in the year 2005, which was very much in the knowledge of the complainant.

The State Commission having dismissed the consumer complaints, on the ground that the complainant was not a consumer within the meaning of Consumer Protection Act, he is before this Commission, by way of these appeals.

During the course of hearing, it transpired that the complainant / appellant had in fact booked three bungalows and not two bungalows. His case is that the bungalows subject matter of the consumer complaints instituted by him, were booked by him for his two sons. However, as rightly noted by the State Commission, the complainant did not even disclose the age of his sons for whom he had allegedly booked the said two bungalows. During the course of hearing, I asked the learned counsel for the complainant / appellant as to what was the age of the sons of the complainant at the time the bungalows were booked, whether they were citizen of India or USA and what were they doing at the time the bungalows were booked. The learned counsel for the appellant stated that both the sons of the complainant were grown up persons, both were US citizens and were gainfully employed in the USA at the time when the bungalows were booked.

The complaint does not disclose any particular reason for the sons of the complainant to leave the business / profession / service in which they were gainfully employed in USA and settle permanently in India. The complaint does not disclose what the sons of the complainant would have done to earn their livelihood, if they were to settle in India and live in the bungalows booked by him. In the absence of such details, it would be difficult to accept the averment that the bungalows in question were booked by the complainant for settling his sons in India, when the complainant did not even file the affidavits of his sons, to prove that despite being US citizens and being gainfully employed in USA, they wanted to permanently settle in India and live in the bungalows booked by the complainant. In these circumstances, it would be difficult to accept the case of the complainant that the bungalows were booked by him for settling his sons in India. This is more so considering that as many as three bungalows were booked by him.

The learned counsel for the respondent drew my attention to an MOU dated 21.3.2004, executed between the parties which clearly shows that the complainant / appellant had advanced a loan of Rs.1.00 crore which was to carry interest @ 1% per month. The aforesaid MOU leaves absolutely no doubt that the complainant was not a bonafide allottee of the bungalows in question. The MOU to the extent it is relevant reads as under:

"First Part (1) Mr. Bhushan U. Vyas On behalf of Pushpak Construction Private Limited having its office at 206, Samudra Annexe, Off. C.G. Road, Navrangpura, Ahmedabad. Hereinafter called 'First Party"

Second Party: (2) Mr. Dinesh Makwana Individual resident at 30, Arthur Pl., Stanford, CT 06906-1801, Hereinafter called "Second Party".

AND WHEREAS, the first party have purchased an immovable property bearing final plot No. 4P,5,6 of Town Planning Scheme No. 25, land of survey No.916/883 Moje Vejalpur, Taluka City in the registration District and sub-district of Ahmedabad, as a society called as a society called as (1) Adinath (Vejalpur) Co. Op. Housing Society Ltd., Registered under Co.op. Society Act, 1861 with the registrar No. G-20694 dated 28.10.2001 (2) Padmavati (Vejalpur) Co.op. Housing Society Ltd., registered under Co.op. Act, 1961 Registrar No. G-20687 dated 28.10.2002.

The developer and the society make a development agreement for develop scheme named 'Pushpak Hills" on above mentioned land, for that raising the fund for development of the mentioned scheme the second party is ready to give fund to First Party with the terms and conditions as follows:

Second Party will charge 1% interest on given fund

As security of the funds First Party is ready to allot two bungalows o 265 sq. yds. Land area and 330 sq. yds construction area (built up) each worth Rs.37,00,000/- (Rupees thirty seven lacs only) each in above mentioned scheme to Second party.

First Party is ready to pay 20% profit to second party after reduction of all taxes, interest and other expenses of this project called Pushpak Hills."

Since the respondent claims to have delivered possession of the allotted bungalows to their bonafide purchaser way back in the year 2005, I asked the learned counsel for the complainant / appellant as to when the complainant had last visited India after 2005. The learned counsel for the appellant stated that he had visited India several times and had also made additional payments to the respondent. Obviously, on visiting the bungalows allotted to him by the respondent, the complainant / appellant would have come to know that not only the construction of the allotted bungalows was complete, the possession also had been handed over to some other person. Therefore, he got a cause of action to institute the consumer complaints whenever he visited India for the first time after 2005. The complaints having been instituted in the year 2014 were clearly barred by limitation on the date they were instituted.

For the reasons stated hereinabove, the order passed by the State Commission does not call for any interference by this Commission in exercise of its appellate jurisdiction. The appeals being devoid of any merits are hereby dismissed.