AI Structured Summary
Not yet generated for this judgment
Judgment
This Revision Petition has been filed under section 21(b) of the Consumer Protection Act, 1986 by the Petitioner against the order dated 16.10.2015 passed by the State Consumer Disputes Redressal Commission, Goa, Panaji (herein referred to as the “State Commission”) in First Appeal No.49/2015.
Case of the Complainants is that they purchased two storeyed villas C-11 and C-12, having built up area of 127.76 sq. mtrs. each, for a sum of Rs.40 lakhs each, vide two separate registered sale deeds both dated 06.04.2011, in the project “Serenity at Verca.” They also purchased flat D-6 admeasuring 125.41 sq. mtrs., for a sum of Rs.45 lakhs, in the said project. Opposite Party No.1 also charged Rs.3 lakhs towards electricity charges of the staircase block, including replacement of fuse bulbs and other fixtures, water charges, lifts, generator and other maintenance expenses. Opposite Party No.1 also issued bills dated 15.07.2011 for Rs.13,869.50, Rs.13,505.50 and Rs.48,969/- respectively. The Complainants asked Opposite Party No.1 for breakup/details of the said bills. On being assured of breakup of the demands, the Complainants made the payments. As no response was received from Opposite Party No.1, Complainant No.2 sent email dated 25.09.2011 to the authorized representative of Opposite Party No.1 seeking clarification of the bills amount already paid by the Complainants. In December, 2011, the Complainants personally visited the office of Opposite Parties Nos.3 & 4 and the Director of Opposite Party No.1. Opposite Party No.3 abused and assaulted Complainant No.2, for which an FIR was also lodged by the Complainants. Electricity meter of the Complainants for all three units were in the name of Opposite Party No.2. The Complainants made repeated requests to the Opposite Parties for change of the electricity meter, which was not done. Complainants sent legal notice dated 26.03.2012 seeking refund of the amount deposited by them, which was not replied by the Opposite Parties nor refund was made. The Opposite Parties began to treat the residential complex as commercial complex and started giving the units on rent to strangers without the consent of the unit owners. Alleging deficiency in service on the part of the Opposite Parties, the Complainants filed Consumer Complaint with the District Forum with the following prayer: -
“a. Direction to the Opposite Parties to pay to the Complainants the said amounts of 2,07,259/- (Rupees Two Lakhs Seven Thousand Two Hundred and Fifty Nine Only) mentioned by the Opposite Parties in the said three bills each dated 15th July 2011, 31st October 2011 and 31st December 2011 in respect of the said Villa Nos. C-11, C-12 and D6 each.
b. Direction to the Opposite Parties to pay to the Complainants interest on the said amounts of 2,07,259/- (Rupees Two Lakhs Seven Thousand Two Hundred and Fifty Nine Only) at the rate of 18% per annum calculated from 31st December 2011 till the date of disposal of the present complaint.
c. Direction to the Opposite Parties to pay to the Complainants interest on the said amounts of 2,07,259/- (Rupees Two Lakhs Seven Thousand Two Hundred and Fifty Nine Only) at the rate of 18% per annum calculated from the date of disposal of the present complaint till actual realization.
d. Direction to the Opposite Parties to pay to the Complainants an amount of Rs.2,00,000/- (Rupees Two Lakhs Only) towards damages on account of mental torture and harassment caused to the Complainants by the Opposite Parties.
e. Direction to the Opposite Parties to pay to the Complainants interest on the said amount of Rs.2,00,000/- (Rupees Two Lakhs Only) at the rate of 18% per annum calculated from 31st December 2011 till the date of disposal of the present complaint.
f. Direction to the Opposite Parties to pay to the Complainants interest on the said amounts of Rs.2,00,000/- (Rupees Two Lakhs Only) at the rate of 18% per annum calculated from the date of disposal of the present complaint till actual realization.
g. Direction to the Opposite Parties to provide to the Complainants all the necessary details and break up of the amounts mentioned by the Opposite Parties in the said three bills each dated 15th July 2011, 31st October 2011 and 31st December 2011 in respect of the said Villa Nos. C-11, C-12 and D6 each.
h. Direction to the Opposite Parties to form a Co- Operative Housing Society with the occupants of the various units at SERENITY AT VARCA within a period of 2 months from the date of disposal of the present complaint, and hand over the maintenance of the complex SERENITY AT VARCA to the said Co-Operative Housing Society.
i. Direction to the Opposite Parties to change the names/addressee of the said electricity meters from that of Total Securities Pvt. Ltd to those of the Complainants, and to issue the requisite No Objection Certificate.
j. Costs.
k. Any other relief deemed fit and proper in the circumstances of the present complaint.”
The Complaint was contested by the Opposite Parties by filing common written statement. It was stated that in terms of clause 5 of the sale deed, the Complainants were required to pay Rs.1,00,000/- each for formation of the Association. The Opposite Parties charged maintenance charges for the entire complex from all purchasers including the Complainants, as per area of the premises. The Complainants were not living in the units and the units were locked. The Complainants purchased the said units for commercial purpose. The Opposite Parties were paying the electricity bill and house tax for the units of the Complainants. The Opposite Parties also furnished the bills paid by them alongwith details of maintenance charges. The Opposite Parties never refused to give NOC for transfer of electricity meter. The Complainants were required to follow the procedure for transfer of electricity meter for which NOC was not required from the Opposite Parties. The Consumer Complaint was filed for harassing the Opposite Parties.
The District Forum after hearing the arguments of learned Counsel for the Parties and perusing the record, vide order dated 29.06.2015, partly allowed the Complaint with the following order:-
“The complaint is partly allowed.
a) the opposite parties are directed to within thirty days from the receipt of this order return the said amounts of Rs.2,07,259.00 collected by the Opposite Parties from the complainants on the said bills dated 15-07-2011, 31.10.2011 and 31.12.2011, after deducting from the said sum the amount paid as "house tax" and the amounts paid towards the three individual electricity meters of the three units purchased by the complainants.
b) The Opposite Parties shall pay interest at 9% p.a. on the amount arrived at in the prayer a) from the date of payment to the opposite parties till the date of actual return of the amounts to the complainants.
c) The Opposite Parties are jointly and severally directed to pay from the account of the Opposite Parties an amount of Rs.50,000.00 towards mental torture and harassment caused to the Complainants.
d) The Opposite Parties are also directed to provide to the Complainants all the necessary details and break-up of the amounts mentioned in all the nine bills dated 15-7-2011, 31-10-2011 and 31-12-2011 and the relevant bills and every subsequent bills to be issued by the opposite parties in respect of the said Villa Nos.C-11, C-12 and D-6 each.
e) The Opposite Parties are also directed to form a Co-operative Housing Society with the occupants of the various units at Serenity at Varca within a period of sixty days from receipt of the order and hand over the maintenance of the complex Serenity at Varca to the said Co-operative Housing Society.
f) The Opposite Parties are further directed to co-operate with the Complainants and shall sign all the documents and forms that are required to change the names of the Total Securities Pvt. Ltd., to the names of the respective Complainant's in the records of the Electricity Department so as to effectively change the electric meter from Total Securities Pvt. Ltd., to the name of the respective Complainant/s.
g) pay a sum of Rs.10,000.00 towards costs.”
Aggrieved by the order of the District Forum, Opposite Parties filed First Appeal No.49 of 2015 with the State Commission. The State Commission, vide impugned order dated 16.10.2015, allowed the Appeal and set aside the order of the District Forum and dismissed the Complaint as not maintainable, with the following order:-
“23. The complaint, therefore, deserves to be dismissed with liberty to the complainants to invoke the jurisdiction of the Civil Court or of any other forum, as advised, and for that the complainants would be free to take benefit of Section 14 of the Limitation Act as held by the Apex Court in Laxmi Engineering Works, II 1995 CPJ 1.
For reasons aforesaid, the appeal is allowed and the impugned order is set aside and the complaint is dismissed with liberty as aforesaid.”
Aggrieved by the impugned order of the State Commission dated 16.10.2015, the Petitioners/Complainants have filed the instant Revision Petition.
Heard the Learned Counsel for the Parties and carefully perused the record. Learned for the Petitioners/Complainants submitted that the State Commission erred in concluding that the Complaint was not maintainable as the Complainants were not “Consumers.” The State Commission wrongly relied on the judgment dated 26.09.2014 passed by the State Commission in Sanjay M. Volvoikar’s case, FA/31/14. Aforesaid case was not applicable to the facts of the instant case as in that case the Complainant admitted that they were running the business of transport and took the loan for repair of two trucks. In the present case, the Complainant expressly stated that the premises in question were purchased for their “personal use and enjoyment.” The Complainants purchased the units in question for residential purpose only. The Opposite Parties did not lead any evidence to prove that the Complainants purchased the units for commercial purpose. The State Commission failed to appreciate the facts in the correct perspective. The State Commission also wrongly relied on the judgment of Jag Mohan Chhabra’s case. In that case the Complainant sought Rs.62,08,000/- on account of loss of rentals. Facts of that case were also not applicable to the facts of the instant case. Learned Counsel submitted that the State Commission failed to exercise the Appellate jurisdiction and wrongly allowed the Appeal of the Opposite Parties and dismissed the Complaint as not maintainable. The impugned order of the State Commission is liable to be set aside and the Revision Petition deserves to be allowed.
Learned Counsel for the Respondents/Opposite Parties submitted that as the Complainants purchased the units in question for investment purpose, they were not “Consumers” under Section 2 (1) (d) of the Consumer Protection Act, 1986. The burden was on the Complainants to prove that they purchased three units for residential purpose. As the Complainants failed to prove that they were “Consumers” the State Commission rightly allowed the Appeal filed by the Opposite Parties and dismissed the Complaint as not maintainable. Learned Counsel submitted that the Complainants are not ‘Consumers’ as they booked the units with a view to earn profit. The State Commission was justified in allowing the Appeal filed by the Opposite Parties and rightly dismissed the Complaint as not maintainable as the Complainants were not “Consumers.”
The Opposite Parties insisted that onus of proof was on the Complainants. This contention of the Respondents is unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of proof that the Complainant was dealing in real estate was on the Opposite Party. The Opposite Party failed to discharge the onus of proof by filing any documentary/oral evidence to establish that the Complainants purchased the units in question for commercial purpose or they were dealing in real estate. In view of the judgment of Hon’ble Supreme Court in Kavita Ahuja (supra), we are of the considered view that the Complainants are ‘Consumers’ as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.
In view of the above, the impugned order passed by the State Commission is set aside and First Appeal No.49/2015 is restored to its original number with direction to the State Commission to decide the Appeal on merits after granting opportunity to both Parties to adduce evidence.