DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/272/2017
No. DF/ Central/ Date
Mohit Rampal
S/O Sh. Ashwani Rampal,
R/O Flat No. 9, Kewal Kunj Apartment,
Sector - 13, Rohini, Delhi-110085 .....COMPLAINANT
VERSUS
1. Airwil Business Park Pvt. Ltd.
Regd. Office at 1110, Main Bazar,
Paharganj, New Delhi - 110055
And Also at:
M-167, Vikaspuri, Near Syndicate Bank,
New Delhi-110 018
2. Chattar Singh
Authorized Signatory
M/s Airwil Business Park Pvt. Ltd.
S/o Net Ram Singh
R/o B-30, Sector-30, Gamma, Greater Noida,
Uttar Pradesh - 201306
3. Manoj Chaudhary,
Director
M/s Airwil Business Park Pvt. Ltd.
S/o Chattar Singh
R/o B-30, Sector-30, Gamma, Greater Noida,
Uttar Pradesh - 201306
4. Vikas Bhagat
Director
M/s Airwil Business Park Pvt. Ltd.
R/o G-102, Alaknanda Apartments,
Ram Puri, Ghaziabad, U.P. - 201007
5. Sanjay kumar
Director
M/s Airwil Business Park Pvt. Ltd.
S/o Chattar Singh
R/o B-30, Sector-30, Gamma-1, Greater Noida,
Uttar Pradesh-201306
6. Sameer Anil Sutar
Director
M/s Airwil Business Park Pvt. Ltd.
R/o A-2, Sector 19, Noida,
Gaugam Budh Nagar - 201301
7. Anil Ram Sutar
Director
M/s Airwil Business Park Pvt. Ltd.
R/o 304, Harsh Corner Complex,
Gazipur, Delhi-110096 …..OPPOSITE PARTIES
Quorum : Ms. Rekha Rani, President
Ms. Manju Bala Sharma, Member
ORDER
Ms. Rekha Rani, President
1. Instant complaint was filed by Sh. Mohit Rampal (in short complainant) under Section 12 of the Consumer Protection Act, 1986 as amended inter alia pleading therein that he booked a commercial shop in project of OP situated at Plot no. 10, Tech Zone IV, Greater Noida West (U.P.) - 201301 for a sum of Rs. 6,35,700/-. OPs assured to give possession of the unit by October 2017. Complainant visited the site in August 2016 and was shocked to know that there was no construction at the site. He has sought direction to the OPs to pay him a sum of Rs. 5,97,530/- with interest @ 24% per annum, compensation of Rs. 5,00,000/- for causing mental agony and Rs. 50,000/- as litigation expenses.
2. On receipt of notice, OP appeared and contested the claim vide their written statement. It is inter-alia pleaded therein that this forum has no territorial jurisdiction as the booked unit is at Greater Noida. It is also stated that the project in which complainant booked a shop is a commercial project and is not related to residence purpose and therefore complainant is not a consumer. It is further stated that in view of arbitration clause in Builder Buyer Agreement (Clause 49) this forum has no jurisdiction.
3. We have perused the case file. We have heard Sh. Leena Soni, counsel for complainant and Sh. Brajesh Jha, counsel for OP.
4. Complainant has placed on record copy of builder-buyer agreement dated 07.04.2014 wherein the address of the OP namely M/s Airwil Business Park Pvt. Ltd. is stated to be at 1110, Main Bazar, Paharganj, New Delhi-110055 which is within our territorial jurisdiction.
In Para 4 of the complaint it is pleaded that complainant visited office of the OP at 1110, Main Bazar, Paharganj, New Delhi where he was given the site plan and other details regarding their project. In Para 10 of the complainant it is pleaded that complainant visited the office of OP at 1110, Main Bazar, Paharganj, New Delhi where he signed the agreement.
In corresponding Para 4 of their reply, OP has not specifically denied that complainant had not visited their office at 1110, Main Bazar, Paharganj, New Delhi where the OP apprised him about payment, site plan and other details regarding their project. In corresponding Para 10 of their written statement, they have again not specifically denied that complainant signed the agreement at 1110, Main Bazar, Paharganj, New Delhi. It may be noted that in Para 45, Page 23 of the builder-buyer agreement, OP has given its address as 1110, Main Bazar, Paharganj, New Delhi for service of notice to it and in Para 49 it is written that courts at Delhi alone shall have jurisdiction to deal with matters concerning rights and obligations of the parties arising under the said agreement. In view thereof, this forum has territorial jurisdiction.
Objection of OP that in view of Arbitration Clause in Builder Buyer Agreement (clause 49) this Forum has no jurisdiction has already been decided in favour of the complainant vide our detailed order dated 26/02/2018.
5. Next objection taken by OP is that the complainant is not a consumer. In Para 2 of the complaint, complainant has stated that he wanted to invest money in property. In Paras 5 and 7 he pleaded that he booked a commercial shop. He also stated that he wanted to purchase office for his official work (Para 2 of complaint.)
6. OPs have raised an objection that complainant is not a consumer as the project in which he booked a shop is a commercial project which is not related to residential purpose and that the whole project is being constructed and developed
as commercial. In rejoinder complainant pleaded that the shop was booked for
earning his livelihood. In his complaint as well as his affidavit, complainant stated that he wanted to purchase “an office for official work”. He is blowing hot and cold in the same breath. The stand is not consistent. On one hand booking of space is stated to be for office to do official work and on the other hand it is stated that he booked a “commercial shop” for his personal use. It is also stated that ‘‘he wanted to invest some money in property.’’
7. Complainant stated in para 2 of the complaint that he ‘‘wanted to purchase an office for his official work.’’ Nowhere in the complaint he explained as to what kind of ‘‘official work’’ he wanted to do in the booked space. Delhi State Commission in Mumtaz Khan Vs. Cosmic Structures Ltd. in First Appeal No. 1558/2017 vide order dated 02.01.2018 observed :
‘’2. It is true that complainant has mentioned in para 2 that he intended to set up his own office in the booked space from which he could earn livelihood but merely alleging so is not enough. Complainant has not disclosed as to what activity he was to carry on in the booked space, what is his qualification.’’
8. In I.J. Mahani Vs M/s ARN Infrastructures India Ltd. in First Appeal No. 561/2016 before Delhi State Commission case of the complainant was that he booked office space with OP and OP agreed to give assured return at the rate of 12% per annum from the date of the booking. Hon’ble State Commission dismissed the complaint vide order dated 09.01.2017 and observed that :
2. “Even on merits I do not find any infirmity in the order of the district forum. District Forum has observed that complainant has not mentioned in the complaint that booking of the space was for the purpose of earning livelihood by means of self employment.
Self employment must have ingredient of putting in some physical labour to earn the livelihood. That is missing. District Forum has rightly concluded that booking is not covered under consumer protection Act.’’
In the instant case also complainant has nowhere alleged that he booked commercial shop for the purpose of earning livelihood by means of self employment.
9. In Vinay Gill Vs M/s Aadi Best Consortium Pvt. Ltd. Complaint Case No. No. 1932/2017 complainant booked a shop. Our State Commission vide order dated 19.12.2017 held :
‘‘On a plain reading of the above, it is clear that in order to avail the benefit of the explanations, the onus lies on the complainant to show that they have availed the services of the OP exclusively for the purpose of earning their livelihood by means of self employment. In order to reach to a conclusion whether or not the complainants are covered within the explanation we have perused the averments contained in the complaint. On perusal of the contents of complaint it is noticed that it nowhere stated that the subject unit was booked exclusively for the purpose of earning livelihood by way of self employment. Therefore in our considered view the case of the complainants is not covered within the exclusion clause. This leads to an inevitable and inescapable conclusion that the subject unit was booked by the complainants for commercial purpose and as such in
view of the exclusion carved out under Section 2(1) (d) (ii) of the CP Act 1986 the complainants are not the ‘consumers’ and as such they cannot maintain the consumer complaint.
The Hon’ble NCDRS in their order dt. 18.03.2016 passed in CC 50/2011 in the matter of Rajesh Gulati and Another vs. DLF Commercial Complex Limited, relying on their decision in the matter of Inder Nath Mehra & Ors vs. Purearth Infrastructure Ltd., decided on 15.05.2015 held that the complainant, unless able to establish that the subject unit being purchased is for livelihood by means of self employment, would not be consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act 1986.’’
10. In Ajay Ahalawat vs. M/s. Earth Galleria Pvt. Ltd. complaint case no. 1438/2016 date of decision 16.02.2017 the point for consideration before the Delhi State Commission was ‘‘whether commercial space is included within the meaning of Consumer as defined under section 2 (1) (d) of the Consumer Protection Act
1986.’’ The State Commission gave the answer in negative and observed :
‘‘2. We have gone through the material on record and heard the arguments on admission. The point for consideration is whether a commercial space is included within the meaning of consumer defined u/s 2 (i) (d) of the Consumer Protection Act. The apparent answer is in negative.
3. It has been held in CC No. 402/16 titled as Balbir Singh Randhawa vs. DLF Universal decided on 18.03.2016 that commercial space is not covered under Consumer Protection Act. Similar view has been taken in CC No. 50/11 titled as Rajesh Gulati vs. DLF Commercial Complex decided on 18.03.16.’’
In Ram Ikbal Rai & Sheela Rai vs. M/s. Vardhman Estates & Developers Pvt. Ltd. Complaint Case No. 1595/16 date of decision 31.01.2017 Delhi State Commission observed that :
‘‘1. Commercial space is not covered by Consumer Protection Act.’’
11. Booking was for a commercial shop as is mentioned in paras 5 and 7 of the complaint. The same is not covered under consumer protection Act. The complainant has not averred that booking was for earning livelihood by self employment. In this regard reliance can be placed on decisions of National Commission in complaint case No. 402/169 titled as Balbir Singh Randhawa vs. DLF Universal decided on 18.03.16.
12. It is therefore clear that complainant is not a consumer under Consumer Protection Act. He has taken various inconsistent pleas in the complaint. At one place he stated that he ‘‘wanted to invest some money in the property.’’ He has also stated that wanted to purchase ‘‘office for official work.’’ He did not specify as to what official work he intended to carry on in the booked space. He also averred that he wanted to purchase a ‘‘commercial shop’’. It is settled law that what is not pleaded cannot be proved. In view of the judgements of our State Commission quoted above this dispute is not maintainable before Consumer Fora. The complaint is dismissed being not maintainable here. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on this 14th Day of December 2018.
