Haryana

Yamunanagar

CC/893/2013

Gourav Trikha - Complainant(s)

Versus

Ansal Housing And Construction Ltd. - Opp.Party(s)

Surbhit Verma

17 Aug 2017

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 893 of 2013

                                                                                                Date of institution: 10.12.2013

                                                                                                Date of decision: 17-08-2017

 

Gourav Trikha, resident of House No. 34, Shastri Colony, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                                          

                                                                                                    …Complainant.

                                    Versus

1. Ansal Housing & Construction Ltd. 15, UGF, Barakhamba Road, Indraprakash Building, New Delhi, through Managing Director.

 

1. Ansal Housing and Construction Ltd. Sector 36, near Sector 4, Karnal through authorized Signatory.

 

1. Sanjeev Katyal, SCO-179, Ground Floor, Commercial Belt, Sector-17, HUDA, Jagadhri, District Yamuna Nagar.

 

                                                                                                 ...Respondents                                                                                                        

BEFORE:        SH. DHARAMPAL, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

                        SMT VEENA RANI SHEOKAND, MEMBER

 

Present:           Sh. Surbhit Verma, Advocate, counsel for complainant.

                       Sh. Sushil Kaushal, Advocate, counsel for respondents.  

 

ORDER            (DHARAMPAL, PRESIDENT)

 

1.              Complainant Gourav Trikha, has filed the present complaint under section 12 of the Consumer Protection Act 1986 against respondents (herein after Respondents will be referred as OPs).    

2,                Brief facts of the present complaint, as alleged by the complainant, are that the complainant has booked a shop on ground floor No. UGF-004 area 155 Sq. feet on 03-02-2010 with OPs at Karnal, for which, the complainant paid Rs. 4,11,388/ as full and final payment instead of payment plan of the OPs to the OPs against writing duly signed by OP’s authorized signatory. On 19-02-2010, the OPs had handed over no dues certificate to the complainant. but thereafter, the OPs sent a letter dated 12-10-2012 informing the complainant that in place of UGF 0004, new shop No. FF-105 has been allotted to the complainant and the OPs demanded further amount from the complainant. Though the Ops had done so without any prior information and without consent of the complainant, still the complainant in a honest manner, agreed to it and paid Rs. 34,612/- to the OPs against receipt and even thereafter on demand of the OPs, the complainant deposited Rs. 1,50,000/- to agent of the Ops named Bhuvnesh Properties, 19, near Monga Hospital, Kunjpura Road, Karnal for which no receipt has been issued to the complainant. It is further submitted that the complainant has been asking the OPs about the fate of allotment of the above FF-105, the OPs in a malafide and dishonest intensions have been postponing the matter on one pretext or the other. The complainant has been running rom pillar to post to know the fate of his shop No. FF-105 but on the last week, the complainant was stunned, when the OPs told that they have cancelled the booking of the above said shop. As such, this act on the part of the Ops is totally wrong, dishonest and the OPs have usurped the above aid amounts of the complainant, which is a fraud, breach of trust and cheating on the part of the OPs. It is further submitted that the complainant has received a call from the OP No. 3 that they are ready to refund the whole amount to the complainant, which was deposited by him,  but the OP No. 1 will deduct 20% amount from the whole amount of the complainant. As such, it is prayed that the complaint may kindly be accepted and the Ops may kindly be directed to pay an amount of Rs. 5,96,000/- along with 24 % interest per annum, to pay Rs. 1 lac as compensation on account of mental tension, agony, harassment and Rs. 11,000/- as litigation expenses to the complainant.     

3.                 Upon notice, OPs appeared and filed the written statement by taking some preliminary objections such as: - complaint is not maintainable; complainant has no locus standi to file the present complaint, this Hon’ble Forum has got no jurisdiction to entertain and try the present complaint, as the property in question is situated in Karnal, District Karnal and even other as per clause No. 53 of the allotment agreement, any dispute between the parties has to be settled through arbitration. Even otherwise the disputed property is a commercial shop whereby the complainant would carry on his trade and business. It is a settled law that any property purchased for commercial purposes has to be specifically ousted from the purview of consumer Protection act, so the complainant should approach to appropriate court to redress his grievances, if any.  It is submitted that the contents of the letter dated 19-02-2010 are not denied. However, it is clarified that this letter is not a no dues certificate but only a certificate stating that all arrears of previous calls have been satisfied. It can be clearly seen from the allotment letter that the basic cost for the property UGF 004 was not Rs. 3,49,680/-. The lay out plan of the project was changed after necessary suggestions by the DTCP and thereafter the lay out plan was modified as per clause 19 of the Agreement and complainant was informed about the same vide letter dated 12-10-2012. In the agreement it has also been mentioned that due to change in layout plan, there could be decrease or increase in the area of unit, change in the location of unit, change in the number of unit, change in boundaries and that no claim monetary or otherwise will be raised by the allottee or accepted by the developer, except that the aforementioned rates will be applicable on the changed areas of the unit, for the purpose of determination of the amount to be realized or refunded as the case may be. It is further submitted that despite repeated reminders dated 01-10-2014, 27-08-2014, 13-05-2014, 08-12-2012, 19-10-2012, the complainant failed to pay the overdue outstanding amounts along with interest as mentioned in the reminders.  As such, prayed for dismissal of complaint. 

4.                 Before adverting to the arguments of learned counsel for the complainant, we deem it necessary to produce the definition of consumer as provided under Section 2 (1) (d) of the Act. The definition reads as under: - “(d)  "consumer" means any person who— (i)  buys 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 purposes; Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”  5.               On reading of the above, it is clear that consumer is a person who buys goods or hires or avails of services for consideration present, past or future. The section however carves out an exception by providing that the person who has purchased goods or hired/availed of services for commercial purpose, shall not be included in the definition of consumer. The explanation to Section 2 (1) (d) however gives restricted meaning to the term “commercial purpose” in the context of Section 2 (1) (d) by providing that if the goods are bought or services are hired or availed exclusively by the complainant for earning his livelihood by way of self-employment, it shall not be treated as commercial purpose. 6.                          On perusal of the complaint it appears that it is not the case in which the complainant has hired or availed the services of the opposite parties exclusively for the purpose of earning livelihood by means of self-employment.  7.               On reading of the above, it is clear that disputed property is a commercial shop whereby the complainant would carry on his trade and business. It is a settled law that any property purchased for commercial purposes has to be specifically ousted from the purview of consumer Protection act. As such, the case of the complainant does not fall within the explanation to Section 2 (1) (d) of the Act.                    In aforesaid view, we are supported by the judgment of Hon’ble Supreme Court in the matter of Lakshmi Engineering Works vs. P.S. G. Industrial Institute (1995) 3 SCC 583. Relevant observation of Hon’ble Supreme Court reads as under: -            “The explanation excludes certain purposes from the purview of the expression "commercial purpose" - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition of expression "consumer". If the commercial use is by the purchaser himself for the purpose of earing his livelihood by means of self-employment, such purchaser of goods is yet a "consumer". In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self- employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasis what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words.  8.               In view of the discussion above, the complainant do not fall within the definition of consumer. As such he has no locus standi to maintain the consumer complainant. Complaint is accordingly rejected with the observation that this order will not prevent the complainant from availing his legal remedy before the appropriate Forum on the same cause of action. Copies of this order be sent to the parties concerned as per rules. File be consigned to the record room after due compliance.

Announced: 17.08.2017.

                                                                                    (DHARAMPAL)

                                                                                    PRESIDENT

                                                                                    DCDRF, YAMUNANAGAR

 

 

 

                        (VEENA RANI SHEOKAND)             (S.C.SHARMA)

                         MEMBER                                            MEMBER

 

 

Note:   Each and every page of this order has been dully signed by me.

 

          (DHARAMPAL)

                                                                                    PRESIDENT

                                                                                    DCDRF, YAMUNANAGAR