NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 929 OF 2015

Transcription

1 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 929 OF LOGIX BLOSSOM GREENS BUYERS' WELFARE ASSOCIATION Through Its Secretary, Mr. Maneesh Arora CBC, SF 25, Ansals Fortune Arcade, Sector 18, Noida Versus 1. M/S. LOGIX INFRATECH PVT. LTD. & 3 ORS. Having ITs Corporate and Communicate Office at Logix Park, A 4 & 5, Sector 16, Noida M/s. Logix Soft Tel Pvt. Ltd., 85, Ground Floor, World Trade Centre, Barakhamba Lane, New Delhi Mr. Shakti Nath Director, M/s. Logix Infratech Pvt. Ltd., Logix Park, A4 & 5, Sector 16, Noida Mr. Vikram Nath Director, M/s. Logix Ingratech Pvt. Ltd., having its office at Logix Park, A 4 & 5, Sector 16, Noida Complainant(s)...Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER For the Complainant : For the Opp.Party : Mr. Sahil Sethi, Advocate Dated : 19 Feb 2016 ORDER Present consumer complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short, Act ) by Complainant Association. It is stated that, Complainant is a registered trust w.e.f. 27 th August, 2014, primarily formed for the benefit of apartment buyers of a Group Housing Project, Blossom Greens situated at plot bearing no.gh 01, Sector 143, Noida. Mr. Maneesh Arora, Secretary of Complainant, is authorized to sign, verify and institute the present complaint on behalf of the complainants, by virtue of authorization issued in his favour by members of the complainant, who are represented in the present complaint. 2. The present complaint has been filed on behalf of 54 members of the complainant, detail of which has been provided in Annexure A. The members of the complainant association who are parties to these proceedings, are Consumers within the meaning of Section 2(d) of the Act. They have availed the services of Opposite Parties (O.Ps.) for constructing/developing residential

2 apartments. 3. Around July, O.P. No.1 announced the above Group Housing Complex and total number of apartments and villas to be built in the project were to be 2315 and 105 respectively. At the time of booking of the apartments. O.P. No.1 promised to deliver possession of apartments within 18 months. 57 members of the complainant Association have cumulatively paid approximately Rs.23 crores to O.P. No.1. It is alleged, that O.P. No.1 has no reasonable justification for the inordinate delay in construction of the project. Therefore, alleging deficiency in service as well as unfair trade practice on the part of O.Ps, complainant has made following prayers; i) Direct the Respondents severally and jointly to handover actual physical possession of respective apartments to members of the complainant association, complete in all respects, alongwith all common facilities promised at the time of booking, and execute all the necessary and required documents in respect of the said apartments in favour of the respective members, within the time frame provided to the Complainant Association in November, ii) Direct the Respondents severally and jointly to pay compensation in the form of simple interest to members of the Complainant association, at the rate of 18% per annum with effect from 24 months from the date of the booking till the date actual physical possession is delivered to the respective members, complete in all respects, alongwith all common facilities and all the necessary and required documents in respect of the said apartments are executed in favour of respective members. iii) Direct the Respondents to make the following disclosures to members of the Complainant association; a. rights and the title to the land and the building in which the apartments have been or proposed to be constructed; b. all encumbrances, if any, on such land or building, and any right, title, interest or claim of any person in or, over such land or building; c. the plans and specifications approved by or submitted for approval to the local authority of the towers in the project of which such apartments forms part; d. detail of all common areas and facilities as per the approved layout plan or building plan; and per commitments made in the sales brochure; e. the nature of fixtures, fittings, and amenities, which have been or proposed to be provided; and as per commitments made in the sales brochure; f. the details of the design and specifications of works or and standards of the material which have been or are proposed to be used in the construction of the building, together with the details of all structural, architectural drawings, layout plans, no objection certificate from fire Department, external and internal services plan of electricity, sewage, drainage and water supply system etc. g. all outgoings, including ground rent, municipal or other local taxes, water and electricity charges, revenue assessments, maintenance and other charges, interest on any mortgage or other encumbrance, if any, in respect of such land, building and apartments; iv) Direct the Respondents severally and jointly to provide validation for conformity to Seismic Zone 5 regulations from an IIT, for structures in the project. v) Direct the Respondents severally and jointly to provide adequate car parking spaces to members of the Complainant

3 association in accordance with sanctioned plan. vi) Direct the Respondents severally and jointly to bear the increase in stamp duty from the date of possession in the Agreement to the actual possession of the respective apartments. vii) Direct the Respondents severally and jointly to bear the increase the service tax with effect from 1 st June, viii) Direct the Respondents severally and jointly to pay a sum of Rs.5,00,000/ (Rupees Five Lakhs only) to each member of the Complainant association, who is party to these proceedings, towards compensation for unfair trade practices and deficiency in service by the Respondents. ix) Direct the Respondents severally and jointly to pay a sum of Rs.5,00,000/ (Rupees Five Lakhs only) to each member of the Complainant association, who is party to these proceedings, towards damages for the physical and mental torture, agony, discomfort and undue hardship caused to them, as a result of the above acts/omissions on the part of the Respondents. x) Direct the Respondents severally and jointly to pay a sum of Rs.10,00,000/ (Rupees Ten Lakhs only) to the Complainant association, as a whole, towards costs. 4. We have heard the ld. counsel for complainant and perused the entire record. 5. It is submitted by learned counsel, that complaint filed on behalf of association is maintainable. In support, learned counsel has relied upon a decision of this Commission in Lotus Panache Welfare Association Vs. M/s. Granite Gate Properties Pvt. Ltd. and others, Consumer Case No.120 of 2015 decided on 28 th August, It is also contended that complainant is a Charitable Trust and its object are to protect the right and interest of the purchasers/members in Logix Blossom Green, GH 1, Sector 143, Noida (UP) and as such it is Consumer. 7. Admittedly, the Complainant Association is a trust. As per Trust Deed dated , it is

4 having only six members as trustee. Main objects of this trust are; a. To protect the interest of the members of the Association by representing before the appropriate authority/judicial bodies. d. To assure and have regular interaction with the builder with regard to usage of common area of the campus of the project. e. Verify the deviation in the project from the approved plan and impact on the rights of the members. f. Awareness program to the public at large/other purchasers, creating awareness about the protect and their rights. g. Coordination with the Builders, Government department and other Authorities to protect the right and interest of the purchasers/members Logix Blossom Greens, GH 1, Sector 143, Noida (UP). h. Collect the update of the project and circulate amongst its members and other purchaser. k. To coordinate with Banks/housing finance institutions to ensure sanction of housing loan to members of the association. 8. The short question which arise for consideration is, whether Complainant which is a Charitable Trust is a Consumer as per provisions of the Act? 9. This Commission in Pratibha Pratisthan Trust Vs. The Allahabad Bank, Juhu, IV (2007) CPJ 33 NC, observed; 39. On behalf of the opposite parties, it has been pointed out that the complaint filed by the Trust is not maintainable, and, in any case, the complaints are not filed by all the Trustees. 40. In our view, this submission is required to be accepted because, under the Consumer Protection Act, 1986, complaint can be filed by a consumer. Under Section 2(1)(d) consumer is defined to mean any person who buys goods or hires or avails of any services for consideration. The word person is also defined under Section 2(1)(m), which includes (i) a firm, whether registered or not; (ii) a Hindu Undivided Family; (iii) a Co operative society; and (iv) every other association of persons whether registered under the Societies Registration Act, 1860 or not. 41. Further, in support, the learned counsel for the opp.party Bank has rightly pointed out an observation from DJ Hayton, Hayton & Marshall Commentary and Cases on The Law of Trusts and Equitable Remedies, wherein it has been observed that A trust, unlike a company, has no legal personality; thus, it cannot own property for entering into contracts, sue or are sued. It is the trustees who own the trust property, enter into contracts, sued or are sued. A trustee as such has no distinct legal personality in his representative capacity separate from himself in his personal capacity. 42. Considering the aforesaid definition of the word person, a public trust is not person which can be considered to be a consumer entitled to file complaint before the consumer forum. The reasons are:

5 (i) trust is not included in the definition of the word person. The Legislature included cooperative society under the definition person but not public trust ; (ii) secondly, trust is not a legal entity. 43. Hence, the complainant, Pratibha Pratishthan Trust, which is registered under the Bombay Public Trust Act, 1950, cannot be considered to be person which can file a complaint under the Consumer Protection Act, Further, the Bombay Public Trust Act, 1950, defines the trustee as a person in whom either alone or in association with other persons, the trust property is vested and includes the Manager. 45. For this, it is to be stated that all the trustees are not made party complainants. Though the Opposite Party No.4 was the Chairman of the Trust, he is not made a party (i.e. one of the Complainants) on the alleged ground that he had submitted his resignation as a trustee on health grounds. Rest of the trustees are made as Opposite Parties No.5, 6 and 7 on the alleged ground that they were not available at the relevant time. 46. Hence, we hold that the complaints filed by the Trust are not maintainable for the reasons that the Trust is not person entitled to file complaint under the Consumer Protection Act, 1986; and, also that both the complaints are filed by Trust without making the all the Trustees as Complainants. Hence, these complaints are not required to be entertained. 10. Thus, in view of the above settled position of law, since Complainant Associaton is a charitable trust, it does not fall within the definition of consumer. Therefore, relying upon the decision of Pratibha Pratisthan Trust (Supra), we hold that the consumer complaint filed by Complainant Association is not maintainable. In any case, present consumer complaint has not been filed on behalf of all the Trustees. 11. Accordingly, the present complaint is not maintainable and same stand dismissed in limine. 12. No order as to costs....j V.B. GUPTA PRESIDING MEMBER... PREM NARAIN MEMBER