BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.486 of 2015
Date of Instt. 06.11.2015
Date of Decision :27.11.2015
Kumkum Bhatia wife of Deepak Bhatia, R/o 1256, Urban Estate Phase-I, Jalandhar.
..........Complainant Versus
Ansal Lotus Melange Projects Pvt Ltd., SCO 183/184, Sector-9-C, Chandigarh through its Director.
.........Opposite party
Complaint Under Section 12 of the Consumer Protection Act.
Before: S. Jaspal Singh Bhatia (President)
Ms. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Sh.Rajesh Khanna Adv., counsel for complainant
Order
J.S.Bhatia (President)
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite party on the averments that in response to advertisement for construction sale/allotment of commercial site by the respondent i.e. opposite party at Kharar Landhar Road, Mohali, Punjab in the building by the name of city centre, the complainant offered to purchase a commercial site for a total consideration of Rs.19,75,000/- vide application dated 30.9.09. The respondent i.e. opposite party entered into an agreement in this regard and an allotment letter dated 3.11.09 was also issued by the respondent i.e. opposite party. The total area of the said site was 51.70 sq.meter. Out of the said total amount 25% of it was taken by the respondent i.e. opposite party in the following manner and the respondent i.e. opposite party promised to deliver its possession within three years:-
a) Rs.1 Lac through DD No.33695 dated 1.9.2009
b) Rs.2 Lac through DD No.006683 dated 15.3.2010
c) Rs.93,761/- through cheque No.006681 dated 10.4.2010
d) Rs.2,92,590/- through dd No.371843 dated 10.9.2011 of PNB all the said payments were received against receipt by the respondent i.e. opposite party.
e) Rs.1 Lac through DD No.680986 dated 27.3.2013 cheque of Union Bank of India.
2. It is pertinent to mention that the respondent i.e. opposite party has handed over a site plan and has sent beautiful pictures of the complete site through mail to the complainant. During this period the respondent i.e. opposite party further allured and committed another fraud in the year 2011 by alluring that they were going to construct a site for residential flats just opposite to the said commercial site and in the pre-launch project the respondent i.e. opposite party also deposited Rs.1,50,000/- for a flat but that project was later on shelved by the respondent i.e. opposite party and inspite of repeated requests the said payment was not returned and under compelling circumstances the complainant had to ask the respondent i.e. opposite party to adjust the said amount in commercial site for which the respondent i.e. opposite party agreed and promised to award compound interest but shockingly only simple interest of Rs.25,000/- was given and Rs.1,75,000/- was adjusted in the said site. The period of handing over the possession has ended but possession of the commercial site was not handed over to her. When the complainant insisted for her amount the respondent i.e. opposite party threatened to return the amount after deducting 20% from total agreed amount i.e. from Rs.19,75,000/- meaning that respondent i.e. opposite party offered to the complainant to take Rs.3,70,000/- only out of Rs.7,50,000/- received so far. On such like averments, the complainant has prayed for directing the respondent i.e. opposite party to refund the deposited amount with interest or in the alternative to deliver the possession of the commercial site. She has also claimed compensation.
3. We have carefully gone through the record and also heard the learned counsel for the complainant on the ground of maintainability of the present complaint before this Forum.
4. The present complaint is in respect of commercial site, so the complainant can not be termed as consumer under the provisions of Consumer Protection Act. Counsel for the complainant contended that the dispute involved in the present complaint is regarding the residential flat as well as commercial site and as such the complainant is consumer. We have carefully considered this contention advanced by learned counsel for the complainant. In para 6 of the complaint, the complainant has pleaded as under:-
“During this period the respondent i.e. opposite party further allured and committed another fraud in the year 2011 by alluring that they were going to construct a site for residential flats just opposite to the said commercial site and in the pre-launch project the respondent i.e. opposite party also deposited Rs.1,50,000/- for a flat but that project was later on shelved by the respondent i.e. opposite party and inspite of repeated requests the said payment was not returned and under compelling circumstances the complainant had to ask the respondent i.e. opposite party to adjust the said amount in commercial site for which the respondent i.e. opposite party agreed and promised to award compound interest but shockingly only simple interest of Rs.25,000/- was given and Rs.1,75,000/- was adjusted in the said site.”
5. So according to the own version of the complainant, the project regarding the construction of flats opposite to the commercial site was shelved and the complainant herself asked the opposite party to adjust the amount in commercial site. So in the present complaint, there is no dispute regarding the flat. Moreover, relief claimed by the complainant is regarding refund of the deposited amount or in the alternative to deliver the possession of the commercial site. In Shikha Birla Versus DLF Retailers Developers Ltd 1 (2013) CPJ 665 (NC), the complainant was interested to purchase the business space and entered into an agreement of sale and a dispute arose when the builder change the shape of the plot and consequently, the complainant filed a complaint with prayer that opposite party should be directed to hand over the possession of the said plot as per terms and conditions of the contract besides claiming compensation and in these circumstances, ultimately the Hon'ble National Commission held as under:-
“In Monstera Estate Pvt Ltd., Vs. Ardee Infrastructure Pvt Ltd., IV (2010) CPJ 209 (NC) there was delay in possession, complainant was a private limited company, Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed. Deficiency in service was alleged. Even if private limited company was treated as 'person', purchase of space could not be for earning its livelihood. Purchase of space was for commercial purpose”.
6. In Rajnish Kumar Vs. Maxworth Realty India Ltd & Anr IV (2015) CPJ 359 (NC), recently the Hon'ble National Commission has held as under:-
“On reading of the above [section 2 (1)(d)(ii)], it is clear that a person who hires services of other for commercial purpose is excluded from the definition of consumer. Admittedly, in this case, the complainant had booked number of sites, which obviously can not be termed as purchase for personal residence. One can safely infer from the facts narrated in the complaint that the subject agreements between the parties were for commercial purpose. Thus, the complainant is not a consumer and can not maintain the consumer complaint. In our aforesaid view, we find support from the judgments of this commission in the matter of Chilkuri Adarsh Vs. Ess Ess Vee Constructions, III (2012) CPJ 315, Jagmohan Chabra & Anr Vs. DLF Universal Ltd, IV (2007) CPJ 199 and Sunil Gupta Vs. Today Homes and Infrastructure (Pvt) Ltd., in Consumer Complaint Nos.5 and 6 of 2014”.
7. In Harish Kumar Kochar Vs. Gillco Developers Pvt Ltd & Ors, I (2015) CPJ 686 (NC), it has been held by Hon'ble National Commission as under:-
“5. We have considered the rival contentions and perused the record. The first and foremost question which arises for our consideration is as to whether the petitioner is covered by the definition of a consumer and his complaint is maintainable before the Consumer Fora. It is not in dispute that the petitioner is in service under the Punjab University, Chandigarh. It is also not denied that the plot in question is a SCO plot and is being used for commercial purposes by construction of a shop and other utilities thereon. This being the admitted position, it can not be denied that the purchase of the plot in question was for commercial purpose. The plea of earning his livelihood through proposed construction on this plot was neither taken by the petitioner nor can it be allowed in the face of his being in service already”.
8. The ratio of above cited authorities is fully applicable on the facts of the present case. Since the complainant has agreed to purchase the commercial site from the opposite party, as such she can not be treated as consumer under the provisions of Consumer Protection Act.
9. Consequently, the present complaint is not maintainable and is dismissed as such with liberty to the complainant to approach Civil Court or any other appropriate forum. Copy of the order be sent to the complainant free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia
27.11.2015 Member Member President
