Order by:

Smt.Aparana Kundi, Member.

1.       This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2021 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14^th March, 2022.

2.       The  complainant  has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that  the Opposite Party intent to construct one complex during the first quarter of 2012 under the name and style of ‘Indian International Habitat Centre’ (said complex at NH-1, Adjacent to Hardy’s World Amusement Park, Village: Quadian, Jalandhar Byepass, Ludhiana for which the Opposite Party circulated broachers, pamphlets etc. inviting the interesting parties to purchase the units offered by the Opposite Party in the said complex.  The complainant who was dealing in real estate business and wanted to set up his office at Ludhiana for earning the livelihood. As the complainant was already in real estate business, therefore, the Opposite Party allured the complainant to buy one unit in the said complex and  the complainant moved an application for allotment of furnished office, bearing temporary office No.B-509C/A, measuring 100 square feet at fifth floor having rate (per sq.ft) of Rs.5000/- vide application form dated 29.02.2012. Said application was duly accepted by the Opposite Party and said furnished office was allotted to the complainant and the Opposite Party entered into one Memorandum of Understanding (MOU)  dated 05.03.2014 whereby all the terms and conditions were settled between the parties. As per the MOU, Opposite Party agreed to pay the monthly return of Rs.5000/- in respect of the unit to the complainant w.e.f. April, 2012 till the date of offer of possession of the said unit after deducting TDS or any other statutory charges.  The complainant in acceptance of said MOU, paid sum of Rs.5 lakhs and thereby the Opposite Party entered into Unit Buyer agreement dated 2^nd day of April, 2012. In compliance of the said MOU, the Opposite Party was regularly paying Rs.4500/- (i.e. Rs.5000/- after deducting TDS) by way of cheque to the complainant, but lateron the Opposite Party  without mentioning any due cause, illegally and arbitrarily stopped paying the said amount of Rs.4500/-. They  made requests several times to the Opposite Party to complete the said complex or to pay the monthly assured return as settled, but to no affect and hence,  the complainant is suffering from harassment, mental tension and as such, there is deficiency in service on the part of the Opposite Party.  Vide instant complaint, the complainant has sought the following reliefs.

a)       The Opposite Party may be directed to return the amount of Rs.5 lakhs alongwith interest  paid by the complainant to the Opposite Party for the said unit alongwith pending monthly assured return which comes to Rs.1,26,000/- and compensation of Rs.5 lakhs   due to mental tension and harassment caused by the complainant and Rs.22,000/- as litigation expenses and also to pay any other relief to which this District Consumer Commission may deem fit be also granted.

3.       Opposite Party  appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that the present complaint is liable to be dismissed at the outset as the complainant herein is not a consumer as defined under the Consumer Protection Act, 1986 (as amended upto date). The project which the complainant had purchased in Ludhiana is a commercial complex by the name of Gold Souk Grande and as per settled law when the booking of a commercial/ business space by the complainant is for a commercial purpose within the meaning of section 2(1)(d) of the Consumer Protection Act, the complainant is not a consumer under the Consumer Protection Act (as amended upto date) and therefore, the present complaint is liable to be dismissed in limine. The complainant claims that said Unit was purchased for the self livelihood, but he has failed to produce any document or certificate to prove his assertion.  In para No.3 and 4 of the complaint, the complainant has categorically admitted that he is involved in the business of Real Estate. It is difficult to understand how a person who admits to be in the business of real estate can also claim to be purchasing a commercial unit to set up his office for the purpose of self livelihood. It is further submitted that mere mentioning of the words self livelihood is not enough to warrant the jurisdiction of  Consumer Courts and he must prove the same.  However, no detail has been provided regarding what kind of a business he intends to use the said unit for either.  The complainant has also not submitted any proof that he does not hold any other property under his name. In the absence of any proof it is submitted that the complainant is an investor who is fraudulently seeking the protection of the Consumer courts in order to save the court fees. It is settled law that the Consumer Foras (now Commission)  is not meant for recovery of money. Since the complainant has solely asked for recovery of money, he is better off filing the case in Civil Court who can give a much more reliable verdict. As such, the complainant does not fall within the ambit of consumer under the Consumer Protection Act. On merits, the Opposite Party took up almost the same and similar pleas as taken up by them in the preliminary objections and hence, there is no deficiency in service on the part of the Opposite Party.  Hence, the complaint may be dismissed with costs.  

4.       In order to  prove  his  case, the complainant has tendered into  evidence his affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C5 and closed the evidence on behalf of the complainant.

5.       On the other hand,  after filing the written version, none has come present on behalf of the Opposite Party and hence, we have heard the ld.counsel for the complainant and also  gone through the documents placed  on record.

6.       The case of the complainant is that he was dealing in real estate business and wanted to set up his office at Ludhiana for earning the livelihood and since he was already in real estate business, therefore, the Opposite Party allured the complainant to buy one unit in the said complex and  the complainant moved an application for allotment of furnished office, bearing temporary office No.B-509C/A, measuring 100 square feet at fifth floor having rate (per sq.ft) of Rs.5000/- vide application form dated 29.02.2012. Said application was duly accepted by the Opposite Party and said furnished office was allotted to the complainant and the Opposite Party entered into one Memorandum of Understanding (MOU)  dated 05.03.2014 whereby all the terms and conditions were settled between the parties. As per the MOU, Opposite Party agreed to pay the monthly return of Rs.5000/- in respect of the unit to the complainant w.e.f. April, 2012 till the date of offer of possession of the said unit after deducting TDS or any other statutory charges.  The complainant in acceptance of said MOU, paid sum of Rs.5 lakhs and thereby the Opposite Party entered into Unit Buyer agreement dated 2^nd day of April, 2012. In compliance of the said MOU, the Opposite Party was regularly paying Rs.4500/- (i.e. Rs.5000/- after deducting TDS) by way of cheque to the complainant, but lateron the Opposite Party  without mentioning any due cause, illegally and arbitrarily stopped paying the said amount of Rs.4500/-. The  complainant made requests several times to the Opposite Party to complete the said complex or to pay the monthly assured return as settled, but to no affect. On the other hand, the defence of the Opposite Party is that complainant herein is not a consumer as defined under the Consumer Protection Act, 1986 (as amended upto date). The project which the complainant had purchased in Ludhiana is a commercial complex by the name of Gold Souk Grande and as per settled law when the booking of a commercial/ business space by the complainant is for a commercial purpose within the meaning of section 2(1)(d) of the Consumer Protection Act, the complainant is not a consumer under the Consumer Protection Act (as amended upto date) and therefore, the present complaint is liable to be dismissed in limine. The complainant claims that said Unit was purchased for the self livelihood, but he has failed to produce any document or certificate to prove his assertion.  In para No.3 and 4 of the complaint, the complainant has categorically admitted that he is involved in the business of Real Estate. It is difficult to understand how a person who admits to be in the business of real estate can also claim to be purchasing a commercial unit to set up his office for the purpose of self livelihood. It is further submitted that mere mentioning of the words self livelihood is not enough to warrant the jurisdiction of  Consumer Courts and he must prove the same.  However, no detail has been provided regarding what kind of a business he intends to use the said unit for either.  The complainant has also not submitted any proof that he does not hold any other property under his name. In the absence of any proof it is submitted that the complainant is an investor who is fraudulently seeking the protection of the Consumer courts in order to save the court fees. It is settled law that the Consumer Foras (now Commission)  is not meant for recovery of money. Since the complainant has solely asked for recovery of money, he is better off filing the case in front of a Civil Court who can give a much more reliable verdict. As such, the complainant does not fall within the ambit of consumer under the Consumer Protection Act. Keeping in view the facts and circumstances and averment made by the complainant himself, we do agree with the version of the Opposite Party.  It is not disputed that the    project which the complainant had purchased in Ludhiana is a commercial complex by the name of Gold Souk Grande and as per settled law when the booking of a commercial/ business space by the complainant is for a commercial purpose within the meaning of section 2(1)(d) of the Consumer Protection Act, the complainant can not be termed as consumer  under the Consumer Protection Act (as amended upto date). However, though  the complainant claims that said Unit was purchased for the self livelihood, but he has failed to produce any document or certificate to prove his assertion.  Not only this, in para No.3 and 4 of the complaint, the complainant has categorically admitted that he is involved in the business of Real Estate. A person who receives “monthly rent” of the building/ shop from another person, cannot claim that  one is using the same for earning his livelihood ‘exclusively’ by way of self employment. Therefore, the complainant who is receiving monthly rent  from Opposite Parties on the basis of contract, can not claim that he is using the shop for earning his livelihood ‘exclusively’ by way of self employment. Hence, he is not a consumer. It is the case of the complainant that as per the agreement between the parties, he was receiving the rent of Rs.5000/- per month  from the Opposite Party in lieu of the  commercial unit in question till its completion. But we are of the view that receiving rent  in lieu of the commercial unit does not fall within the ambit of ‘earning livelihood by way of self employment’. In the present complaint, the essential element of  earning livelihood ‘exclusively’ by way of self employment is missing and we hold that  the complainant does not come within the definition of consumer under the Consumer Protection Act (as amended upto date).   

7.       In view of the aforesaid facts and circumstances of the case, the instant complaint stands dismissed. All pending applications are disposed off accordingly. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost by District Consumer Disputes Redressal Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.

8.       Reason for delay in deciding the complaint.

This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14^th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible.

Announced in Open Commission at Camp Court, Ludhiana.