Delhi

StateCommission

CC-03/2006

Duropack Ltd - Complainant(s)

Versus

Ansal Properties and Industries Ltd - Opp.Party(s)

21 Jul 2017

ORDER

 

IN THE STATE COMMISSION: DELHI

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

                                                             Date of Decision: 21.07.2017

Complaint Case No. 06/3

In the matter of:

M/s Duropack Ltd.

B-4/160, Safdarjung Enclave

New Delhi-110029

 

Regd. Office:

3123, Sector D, Pocket III

Vasant Kunj

New Delhi-110070                                      ........Complainant

 

Versus

 

1. M/s Ansal Properties & Industries Ltd.

115, Ansal Bhawan

16 Kasturba Gandhi Marg

New Delhi-110001

 

2. Sh. Gopal Ansal

Managing Director

M/s Ansal Properties and Industries Ltd.

115, Ansal Bhawan

16 Kasturba Gandhi Marg

New Delhi-110001                                       ..........Opposite Parties

                                                                  

CORAM

N P KAUSHIK                         -                  Member (Judicial)

 

1.         Whether reporters of local newspaper be allowed to see the judgment?                   Yes

2.         To be referred to the reporter or not?                                                                  Yes

 

Present :          Shri Ashutosh Dubey, counsel for the complainant.

                        Shri Dharmveer Khatri, counsel for the OP.

 

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGMENT

 

1.         Facts in brief of the complaint are that the complainant is a company incorporated under Companies Act with its registered office at 3123 Sector D Pocket III Vasant Kunj New Delhi-110070. Admittedly the complainant got booked a plot measuring 502 sq. yds. in a colony to be developed by M/s Ansal Properties & Industries Ltd. (in short the OP). The colony was named as Phase III Sushant Lok, Gurgaon (Haryana). Complainant submitted his application to the OP on 16.02.1996 and paid in all an, amount of Rs. 8,71,740/- by 10.10.1996. `Plot buyers agreemen’ dated 27.06.1997 was entered into between the parties.
2.         Next submission of the complainant is that the OP wrote him a letter dated 28.07.1997 vide which he was called upon to clear outstanding dues. On a personal meeting with the Managing Director of the OP, he was assured that no interest whatsoever shall be charged from the complainant on the amounts outstanding on the date of handing over of the possession. Managing Director of the OP however asked the complainant to submit a letter to him so as to raise funds from a finance company to make payment of the balance 80% cost price of the plot. Complainant accordingly furnished a letter dated 10.09.1997. OP vide letter dated 02.04.1999 put into writing the deliberations that took place in the meeting. OP wrote another letter dated 16.12.1999 to the complainant for making arrangements of 80% of the cost.
3.         Grievance of the complainant is that despite his readiness and willingness to pay the balance price of the plots, OP cancelled his allotment vide letter dated 14.05.2004. Complainant contacted the Managing Director who assured him to revive the allotment as was done in the case of adjoining plat bearing nos. C-19 and C-20. Complainant submitted that despite assurance the OP did not withdraw its letter of cancellation and give an opportunity of payment of the balance amount.
4.         With the aforesaid spectrum of facts, the complainant has prayed for a declaration, declaring the letter of cancellation dated 14.05.2004 as null and void. Complainant also sought directions against the OPs for handing him over the possession of the plot in question on receipt of the balance payment of Rs. 20,39,807/-. In the alternative compensation to the tune of Rs. 63,00,000/- besides refund of the amount of Rs. 8,71,740/- (the amount paid by the complainant) alongwith interest @ 12% p.a. is prayed for.
5.         Defence raised by the OP is that the complaint is barred by time as the allotment in favour of the complainant was cancelled on 14.05.2004. A cheque for an amount of Rs. 4,03,298.70/- was sent to the complainant towards refund. OP submitted that the complainant admitted that he was a defaulter in making the payment of the of the balance amount of Rs. 15,30,333/- . Complainant failed to make payment even after he was given further opportunity. Complainant was given the offer of possession vide letter dated 02.04.1999. He was also called upon to make the balance payment. Letters dated 10.04.2000, 14.06.2001, 04.09.2001, 15.02.2003 and 28.02.2003 were written in this behalf. It was in these circumstances that the OP was compelled to cancel the allotment in question. Refund after forfeiture of the earnest money was made. Complainant with an ulterior motive did not encash the cheque. 
6.         OP has raised an objection that the complainant is not a `consumer’ in terms of the provisions of Consumer Protection Act 1986. Contention of the OP is that the complainant is a company and it does not fall within the ambit of section 2(1)(d) of the Consumer Protection Act 1986. OP also contended that the complainant wanted to wriggle out of the agreement as the prices of the real estate had gone down during the relevant period. On the basis of these grounds, OP has prayed for dismissal of the complaint.
7.         Complainant filed rejoinder reiterating the averments made in the complaint. Parties also placed on record their affidavits towards evidence. Written arguments have also been placed on record.
8.         I have heard at length the arguments addressed by the Counsel for the Complainant Sh. Ashutosh Dubey Advocate and Counsel for the OP Sh. Dharamvir Khatri Advocate.
9.         Main objection raised by the OP to the complaint is that the complainant has availed of the services of the OP for `commercial purposes’. Complainant is also not covered under “explanation” to section 2(1)(d) of the Consumer Protection Act 1986, vide which `a person availing the services for the purpose of earning his livelihood by means of self-employment’ is not covered within the ambit of  expression “commercial purpose”.
10. During the course of arguments Ld. Counsel for the Complainant has submitted that the complainant is a company who had applied for the allotment of a residential plot so as to accommodate its directors, after raising a building thereon. On the contrary, Ld. Counsel for the OP submitted that there is no such plea raised by the complainant either in his complaint or in the affidavit filed towards evidence. During the course of arguments,  Ld. Counsel for the Complainant submitted that he had filed an application for taking on record the said plea.
11. Perusal of the record shows that the complaint does not contain in it any such plea. Complainant at the very outset ought have taken such a plea or move an application in this behalf within a reasonable period. Complainant cannot be allowed to challenge the basic nature of the complaint at this stage. Application of the complainant, therefore, is dismissed.
12. Assuming for the sake of arguments that the complainant wanted to use the residence in question as accommodation for its directors, we are confronted with the question whether the complainant still remains a `consumer’ in the eyes of law. Ld. Counsel for the OP has relied upon the case of Shailaja Finance Ltd. v. GTM Builders and Promoters Pvt. Ltd. & Anr., II (2014) CPJ 724 (NC). The Hon’ble National Commission while noticing the case of Monstera Estate Pvt. Ltd. v. Ardee Infrastructure Pvt. Ltd., 2010 4 CPJ 299 (NC) held that a private limited company even if treated as a ‘person’, purchase of space by it cannot bring the case within the ambit of the expression, ‘for earning its livelihood by means of self-employment’ within the meaning of ‘explanation’.
13. The case of M/s Purusharath Builders Pvt. Ltd. v. M/s Uppal Housing Ltd. & Anr., III (2012) CPJ 500 (NC) was also noticed by the Hon’ble National Commission. In the said case, plots were meant for ‘commercial purpose’. On the other hand, Ld. Counsel for the Complainant has failed to cite any authority to show that the residential accommodation meant for directors of a company does not bring the case within the meaning of the expression ‘commercial purpose’. Since law on the subject is well settled, I am of the considered opinion that the complainant is not a consumer within the meaning of Sec.2(1)(d) the Consumer Protection Act 1986. Complaint is hence dismissed.         
14. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

 

(N P KAUSHIK)

MEMBER (JUDICIAL)