SANJAY GOEL vs M/S. COUNTRY COLONISERS PRIVATE LIMITED

One Gurmeet Singh booked a residential plot with the opposite party in a project which the said OP was to develop in Sector 85 and 99 of Mohali. Sh. Gurmeet Singh entered into an arrangement dated 1.10.2011 with the opposite party where under the possession of the plot was to be delivered to him on or before 30.3.2014, including the grace period of six months. The aforesaid allotment was purchased by the complainant from Sh. Gurmeet Singh on 18.2.2012. The sale consideration for the aforesaid plot was agreed at Rs.12771000/- between the original allottee and the opposite party. The grievance of the complainant is that despite he having already paid Rs.11282533/-, the opposite party has failed to honour its contractual obligation of delivering possession by 30.9.2014. The complainant is therefore before this Commission seeking refund of the amount paid by him along with compensation etc.

The complaint has been resisted by the opposite party on several grounds.

IA No.7802 of 2016 was filed by the opposite party seeking permission to file additional documents. When the aforesaid application, after filing reply, came up for consideration on 9.11.2016, the learned counsel for the complainant stated that the documents annexed with the application may be considered subject to imposition of cost upon the opposite party for delaying the matter and the reply to the application filed by him along with photographs may also be considered along with the documents being filed by the opposite party. The application was allowed subject to payment of Rs.20,000/- as cost, which was duly paid to the complainant.

In para 5 of the IA No.7802 of 2016, it was alleged that the complainant had also booked an apartment bearing No.501 in Tower-Cosmos in the project of the opposite party known as ''Wave Garden'' in SAS Nagar in Sector 85 and 99 of Mohali and the aforesaid flat allotted to him on 11.5.2012 was sold by the complainant to one Harpreet Walia vide an irrevocable agreement to sell dated 31.7.2015 and related documents.

It is also alleged in para 6 of IA No.7802 of 2016 that the complainant had also purchased another apartment in resale bearing No.503 in Tower Geranium in the aforesaid project, namely, ''Wave Garden'' in sector 85 and 99 of Mohali. A buyers agreement dated 17.9.2014 was executed between the parties with respect to the aforesaid flat and later the said flat was sold by the complainant to one Mr. Sandeep Sandhu vide sale agreement dated 17.11.2015. The opposite party has further alleged that the aforesaid transactions show that the complainant is a speculative investor who has purchased several properties from the opposite party only for monetary and commercial gain and therefore he cannot be said to be a consumer as defined in section 2(1)(d) of the Consumer Protection Act.

I have perused the reply filed by the complainant to the aforesaid application. Neither of the aforesaid purchases and sale has been disputed in the reply filed by the complainant though he has sought to justify the sales made by him.

Though in the written version, the opposite party did not take the plea that the complainant was not a consumer as defined in section 2(1)(d) of the Consumer Protection Act, the said plea having been expressly taken in IA No.7802 of 2016 which was allowed with the consent of the complainant without the complainant insisting upon the amendment of the written version before the said transactions could be considered by this Commission, I am inclined to consider the plea taken by the opposite party in this regard.

As noted earlier, the plot purchased by the complainant from Shri Gurmeet Singh was to be developed by the opposite party in the project which it was developing in Sector 85 and 99 of Mohali. The plot subject matter of this complaint was purchased by the complainant from Sh. Gurmeet Singh in February 2012. The possession of the said plot could be delivered to him by 30.9.2014. But soon after the said purchase from Gurmeet Singh, he booked a residential flat in the same project in November 2012. The aforesaid purchase of a residential flat in the same project in November 2012 is an indicator that the complainant had not purchased the plot in question for his bonafide residence but he made it for speculative purposes by selling the same at a later date. The learned counsel for the complainant states that the aforesaid flat was sold by the complainant at loss on account of his being in financial difficulty. The reply to IA No.7802 of 2016, however, does not show what was the compelling financial difficulties of the complainant which made him sell the aforesaid flat on 31.7.2015 and what he did with the sale proceeds received by him on such sale. The complainant even before selling the aforesaid flat in July 2015 had already booked another flat with the opposite party in the same project in Sept. 2014. The said flat was as noted earlier sold by him on 17.11.2015. Again he has not explained in his reply to IA No.7802 of 2016 as to what he did with the sale proceeds received from the sale of the aforesaid flat. What is more important is that in the reply filed by him, the complainant did not explain why two more bookings were made by him.

This complaint was instituted on 18.5.2015. Neither of the booking of residential flats in the project, namely, ''Wave Garden'' was disclosed by the complainant to this Commission while filing this complaint. This, in my opinion, was a deliberate concealment of material fact so that the complaint is not dismissed on the ground that the complainant is not a consumer as defined in section 2(1)(d) of the Consumer Protection Act. Moreover, even after selling the aforesaid two flats, the complainant did not volunteer to disclose such transactions to this Commission. The aforesaid sale and purchase of two residential flats in the same project, came to the knowledge of this Commission only from IA No.7802 of 2016 filed by the opposite party. The complainant, therefore, cannot be said to be a bonafide consumer coming to a court or forum with clean hands. He concealed material facts not only while filing the complaint but also at a later stage when he sold the flats booked by him in the project, namely, ''Wave Garden'' in Sector 85 and 99 of Mohali.

A person approaching a court or forum for the redressal of his grievance needs to disclose all the material facts irrespective of whether the said facts are favourable or they are unfavourable to him. A person withholding the material fact from the court or forum approached by him cannot be said to have come with clean hands and, therefore, is disentitled to any relief from the said court/forum on this count alone.

The learned counsel for the complainant relies upon the decision of this Commission in Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate - CC No.137 of 2010, CC No.145 of 2010 and CC No.146 of 2010 decided on 12.2.2015. The aforesaid decision of this Commission is clearly distinguishable on facts, since the complainant in the aforesaid matters had given a valid and justified explanation for booking three residential flats in the same project, whereas the complainant before this Commission has withheld material facts and also disposed of the flats which he had booked with the OP in a project, namely, ''Wave Garden'' in Sector 85 and 99 of Mohali.

For the reasons stated hereinabove, I have no hesitation in holding that the complainant is not said to be a consumer as defined in section 2(1)(d) of the Consumer Protection Act, since the facts and circumstances of the case clearly indicate that the plot in question was purchased by him for speculative purposes of making gain by selling the same at later date. The complaint is therefore dismissed with no order as to costs. It is however, made clear that the dismissal of the complaint will not come in the way of the complainant approaching a court or forum other than a consumer forum for the redressal of his grievances.