Delhi

StateCommission

CC/09/282

MRS. GOWHAR KHAN - Complainant(s)

Versus

ANSAL HOUSING AND CONSTRUCTION LTD AND ANOTHER - Opp.Party(s)

05 Feb 2018

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :05.02.2018

Date of Decision :13.02.2018

FIRST APPEAL NO.282/2009

IN THE MATTER OF:

 

Mrs. Gowhar Khan,

Sole Proprietor of M/s. F.F. Handicrafts,

K-35, Batla House, Jamia Nagar,

Okhla, New Delhi-110020.                                                                        ……Complainant

 

                                                                        Versus

 

1.         M/s. Ansal  Housing & Construction Ltd.,

Having its registered office at

15-UGF, Indra Prakash,

21, Barakhamba Road,

New Delhi-110001.

Through its General Manager (Mktg.)/ Directors       …….Opposite Party no.1

 

2.         M/s. Sunrise Estate Management Services,

            Having its Head Office at  

15-UGF, Indra Prakash,

21, Barakhamba Road,

New Delhi-110001.

Through its Proprietor/ Partner/

Authorized Signatory                                                        …….Opposite Party no.2

 

CORAM

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                    No

2.      To be referred to the reporter or not?                                                                     No

 

Present:           Shri Vinod Trisal, Counsel for the appellant.

                        Shri Kapil Kher, Counsel for the Opposite Parties.

 

 PER  : SHRI ANIL SRIVASTAVA, MEMBER

JUDGEMENT

          Smt. Gowhar Khan, sole Proprietor of M/s. F.F. Handicrafts, resident of Delhi, has filed a complaint before this Commission, for short complainant, under Section 17 of the Consumer Protection Act 1986 (the Act) against M/s. Ansal Housing and Construction Ltd., and another, hereinafter referred to as opposite parties, alleging deficiency of service on the part of the OP in not handing over the physical possession  of the shop applied for by her within the time as agreed to and praying for the relief as under:-

a)      direct the respondents to withdraw the illegal and unlawful  demand of Rs.8,66,108/- and not to raise any demand in future till the actual and physical possession of the shop is delivered to the complainant.

 

b)      direct the respondent no.1 to pay interest @24% per annum on Rs.9,94,750/- to the complainant;

 

c)      direct the respondent to refund to the complainant a sum of Rs.27,098.60 towards stamp duty, Rs.5,030/- towards registration charges, Rs.69,000/- towards installation of centrally air-conditioning, Rs.27,245/- towards lease rent, together with interest @24% per annum from the date of their respective deposits, till its realization alongwith Rs.50,00,000/- (Rupees fifty lakhs only) as damages  for the mental agony and distress, sustained by the complaint together with cost of the complaint.

d)      any other relief/s which this Hon’ble  Commission deems fit and proper be also awarded in favour of the complainant and against the respondents. 

 

2.      Brief facts of the case necessary for the adjudication of the complaint are these.

3.      The complainant responding to an advertisement issued by the OPs, published in leading newspapers on 28^th January, 1998, launching a commercial complex known as Ansal’s Fortune Arcade in Sector 18, NOIDA, U.P., proposing to construct shops for outright sale for Rs.6.5 lakhs onwards, approached OP-1 and on being assured that the physical possession of the shops would be handed over within 18 months, booked a shop no.LG-022, having an area of 235 sq. ft. in the proposed shopping complex namely, FORTUNE ARCADE under the Constructed Linked Plan `C’ at the cost of Rs.10,16,375/- for the purpose of expending her business and for this purpose a sum of Rs.1,00,000/- was paid on 25.01.1998. Consequently the allotment letter was issued on 19.05.1998.

4.      The complainant has alleged that he  received an intimation from the OP shifting him to an air conditioned project requiring him to pay an additional amount of Rs.69,000/- which he paid in four instalments. He was further pressed for paying an additional amount  on two occasions, first for paying Rs.26,760/- towards lease and second time for paying a sum of Rs.15,094/-  towards electric connection. The complainant however paid the amount.

5.      However the OP failed to complete the construction within the stipulated time and according to the complainant when she visited the site, she found that the construction had barely commenced with no prospects  of its being completed in the near future. The complainant has further alleged that in the meanwhile without the possession of the shop having been handed over, the OPs had demanded a sum of Rs.8,66,108/- towards maintenance charges, holding charges, interest on late payment and service tax. This demand according to the complainant was not legitimate.

6.      Since the possession of the shop was not delivered, depriving the complainant from expanding her business, the purpose for which she had intended to purchase the shop, a claim was preferred before the OPs to refund among others, the principal amount as also the interest but her requests to this effect evoked no response.

7.      Accordingly this complaint was filed before this Commission for the redressal of the grievances. OPs were noticed and in response thereto they have filed their written statement resisting the complaint on the ground that

          (i)      time was not the essence of the contract between the parties;

(ii)      delay in the project took place on grounds beyond their control; and

(iii)     the complainant having sought to purchase the shop for expansion of business is not a consumer

8.      The complaint has been resisted on a few more grounds on merit but we would consider them later if required and necessary. Rejoinder has also been filed. Both sides have also filed evidence. Written submission have also been filed.

9.      The matter was listed before us for final hearing on 05.02.2018 when counsel for both sides appeared and advanced their arguments. We have also perused the records of the case and given a careful consideration to the subject matter.

10.    The first question which arises for consideration in this case is as to whether the complainant can be said to be a consumer within the meaning of Section 2 (1)(a) of the Consumer Protection Act 1986. The foresaid provision to the extent it is relevant, provides that the Consumer means any person, who hires or avails any service for  a consideration but does not include a person who avails such service for any commercial purpose. The term service has been defined in Section 2 (1)(0) of the Act to mean  service of any  description which is made available to a potential user. This leads to another question as to what would constitute the commercial purpose within the meaning of Section 2(1)(d) of the Consumer Protection Act 1986.

11.    The expression `commercial purpose’ has not been defined in the Act and therefore as held herein below by the Hon’ble Supreme Court in Laxmi Engineering Works vs. P.S.G. Industrial Institute (1995) 3 SCC 583 – we may have to go by the dictionary meaning:

“In the absence of a definition we have to go by its ordinary meaning. Commercial denotes pertaining to commerce; it means connected with or engaged in commerce; mercantile, having profit as the main aim whereas the word `commerce’ means financial transactions especially buying and selling of merchandise on a large scale.”

 

12.    Reverting to the facts of the subject matter, the complainant being self employed had sought to purchase the shop for expansion of her business.

13.    Section 2 (1)(d) of the Consumer Protection Act 1986 posits as under:-

 

 

(d)     “Consumer means any person who,-

 

(i)      buy any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid  or promised  or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

 

(ii)     [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of]  the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];

{Explanation- For the purpose of this clause, “commercial purpose” does not include use by person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment;}

 

14.    On 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 OPs exclusively for the purpose of earning their livelihood by means of self employment. The  complainant in para 5 of the complaint avers as under:-

“…..and further the complainant being self employed thought it best opportunity to expand her business….”

15.    The exception carved out under Section 2(1)(d) (supra) envisage primarily two conditions precedent to be a Consumer, namely,

                   a)      availing service for self employment; and, secondly,

                   b)      for earning livelihood

16.    To put it differently, one while purchasing a commercial unit would be a consumer within the meaning of Section 2 (1)(d) only if one is not having already business establishment. Booking of a shop for the purpose of expansion of business, as is the object in the given case, envisage existence of business establishment already, in which case one would not be covered within the exception clause  of Section 2(1)(d) of the Act  (supra) and if that be the case, availing of service would tantamount to for commercial purpose and in such event complainant would not be a consumer. This view is fortified by the decision of the Hon’ble NCDRC in the matter of Ashish Ahuja vs. M/s. Gold Cause Construction Pvt. Ltd. & four ors – CC 201/2015 – decided on 15.04.2015 – reported – 2015 SCC online NCDRC 31- holding as under:-

We have carefully considered the submissions made on behalf of the complainant and perused the record. It is undisputed that the complainant alongwith his wife has been running family business of retail fashion accessories.  It is also not disputed that the consumer complaint has been filed in respect of alleged deficiency in service in respect of booking of shop, which is a commercial premises. Therefore, unless the case of the complainant is covered with the Explanation, which provides restricted definition for commercial purpose, the complainant cannot be termed as “consumer” as envisaged under Section 2 (1)(d) of the Act. The complainant has alleged that he is presently running the business under the name of `Fashion & Trends’ in which he is self employed for earning livelihood and he has booked the commercial space in the project undertaken by the opposite party with a view to expand its business. Therefore, he is squarely covered under the restrictive definition of commercial purpose given in the Explanation to Section 2(1)(d) of the Act.

 

          In view of the discussion above, it is clear from the averments in the complaint that the services of the OP were availed in relation to commercial purpose. As such the complainant cannot be termed as `consumer’ for the purpose of the Act. Since the complainant is not a consumer he cannot maintain the consumer complaint.

          Since the complainant is found to be not a consumer we do not wish to consider other submissions made by the parties on the merit of the case.

          Consumer complaint is accordingly dismissed. The complainant shall be at liberty to avail the proper remedy by moving appropriate forum, if he so desires.

          Ordered accordingly.

          Copy of this order may be forwarded to the parties to the case free of cost as statutorily required.

          File be consigned to records.

 

(ANIL SRIVASTAVA)                                                            (O.P.GUPTA)

          MEMBER                                                            MEMBER (JUDICIAL)