DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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1.       Ankur Dada son of Mr.Anup Krishan, resident of House   No.1599, Sector 18-D, Chandigarh.

2.       Shivani Dada wife of Ankur Dada, resident of House      No.1599, Sector 18-D, Chandigarh.

…..Complainants

                                      V E R S U S

1.       Ansal Properties and Infrastructure Ltd., SCO No.183 & 184, Sector 9-C, Above British Library, Madhya Marg, Chandigarh, through its Manager.

2.       Ansal Properties and Infrastructure Ltd., 115, Ansal Bhawan, 16-Kasturba Gandhi Road, New Delhi – 110001 through its Managing Director.

……Opposite Parties

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                 MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

ARGUED BY: Ms.Priya Gupta, Counsel for complainants.

                      Sh.Vaibhav Narang, Counsel for OPs.

PER P.L.AHUJA, PRESIDENT

1.                By this common order, we are disposing of two  complaint  cases,  as  detailed below, as both the complaints are having same controversy as well as similar questions of facts and law.

2.                The facts are being taken from the present Complaint Case No. 742 of 2012 – Ankur Dada & Anr. Versus Ansal Properties and Infrastructure Ltd. & Anr.

3.                Sh.Ankur Dada and his wife Smt.Shivani Dada, complainants have filed a consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Ansal Properties and Infrastructure Ltd. & Anr.- Opposite Parties (hereinafter called the OPs), alleging that OPs, who are engaged in the development of the project on the land situated in Golf Links-II, Commercial Plot, Mohali created a very rosy picture of booths and the complex through brouchers/prospectus, copy of which is Annexure C-1. As allured by the false promises and the representations of the representative of OPs, the complainants booked unit No.0163-Booth-E-0035 in the said project of the OPs and made payment of an amount of Rs.4,18,500/- on 31.1.2012 against receipt, copy of which is Annexure C-2. At the time of booking, complainants opted for construction linked plan as annexed with the application form, copy of which is Annexure C-3. The representative of the OPs assured the complainants at that time that the allotment letter shall be sent to them but no allotment letter was received by them. The complainants received a payment reminder dated 7.5.2012 – Annexure C-4 asking them to make further payment. Thereafter on 17^th May the complainants received the allotment letter, copy of which is Annexure C-5, on plain piece of paper and it was undated.  It has been contended that the undated allotment letter is self contradictory and contrary to the payment plan annexed with the application form. The due date for the payment of first three installments mentioned in the allotment letter is the same i.e. 1.5.2012, which is totally unbelievable. The question of the said installments falling due on 1.5.2012 and the subsequent installments as detailed in the said allotment letter on mentioned dates is meaningless. The complainants have contended that the said allotment letter is a result of gross negligence on the part of OPs, which amounts to deficiency in service and unfair trade practice. Complainants wrote a letter dated 21.5.2012, copy of which is Annexure C-6, to the OPs for the refund of the money but the OPs failed to accede to the genuine request of the complainants. The complainants sent the legal notices dated 17.7.2012 and 26.9.2012, copies of which are Annexure C-7 and C-8 to the OPs. The OPs replied to the legal notice on 11.10.2012 vide Annexure C-10 admitting their mistakes in the payment plan as well as in issuing allotment letter and promised to serve the fresh payment plan and allotment letter to the complainants. It has been alleged that the complainants visited the office of the OPs on 17.10.2012 to meet Mr.Neel Kamal as mentioned in Annexure C-10 but neither Mr.Neel Kamal nor any other person was ready to listen to their request. The complainants have made a prayer for a direction to the OPs to refund the amount of Rs.4,18,500/- along with interest @18% p.a. ; to make payment of interest @3% per month for the period the amount of Rs.4,18,500/- was retained by the OPs, apart from making payment of compensation, cost of escalation and litigation expenses.

4.                In their written statement, OPs have pleaded that the complainants have booked commercial booth in Golf Links-II, Mohali for commercial purpose and they are not consumers as defined under Section 2(d)(ii) of the Consumer Protection Act, 1986. It has been denied that some false picture of the project was advertised. It has been stated that application form was handed over to the complainants containing all the terms and conditions of the payment. Further in May, the provisional allotment letter was sent to the complainants and it was informed to them that soon the final allotment letter will be executed. It has been further stated that OPs have written a letter dated 11.10.2012 to the complainants after noticing the irregularities in the provisional allotment letter, wherein, they have regretted for clerical mistake in the payment plan. It has been further stated that the OPs were ready to execute the allotment letter but the complainants were adamant that because of the previous irregular allotment letter, they should be compensated in terms of the money. It has been averred that many telephonic calls were given to the complainants and requests were made to them to visit the office of the OPs and they visited the office of the OPs on 22.10.2012 but they were adamant on monetary compensation. It has been stated that the project, in which, the commercial booths have been booked is on its way to completion and the complainants are not following the payment plan.

5.                The parties led evidence in support of their contentions.

6.                After going through the material on record, written submissions of the parties and hearing the arguments of learned Counsel for the parties, we find that the complaint merits dismissal.

7.                A perusal of the complaint itself shows that the complainants had applied for the booking of a commercial booth with OPs. The OPs have specifically pleaded that the complainants had applied for the allotment of the booth for commercial purpose, therefore, they are not consumers as defined under Section 2 (d)(ii) of the Consumer Protection Act, 1986. It is noteworthy that the complainants have nowhere pleaded in the complaint that they hired the services of the OPs or booked the booth solely for the purpose of earning their livelihood by means of self employment. When the OPs raised an objection in their written statement that the complainants were not consumers as defined under Section 2(d)(ii) of the Consumer Protection Act, 1986, then the complainants took a plea in rejoinder that they had applied for booth for the mother of complainant No.1 for earning her livelihood by opening the boutique in that booth. Evidently, such a plea should have been taken in the complaint itself instead of taking the same in the rejoinder.

8.                Even if it is assumed that the complainants could take a plea regarding booking of the booth for earning livelihood of the mother of complainant No.1 in the rejoinder, still we feel that booking of the booth or hiring of the services of the OPs, for the purpose of earning the livelihood of the mother of complainant No.1 would not amount to availing of services by the complainants for the purpose of earning their livelihood by means of self employment.

9.                The complainants have cited Tara Singh Vs. Municipal Corporation, Chandigarh 2004(1) CPC State Consumer Disputes Redressal Commission, UT, Chandigarh 370 and Paras Build-Call Pvt. Ltd. and Anr. Vs. Brig. A.S.Jassar and Anr., 2011(1) CPC 520 and have contended that if the property is purchased for self employment then the complainant is a consumer and the complaint in respect of the purchase of commercial property is maintainable.

10.              We have carefully considered the above arguments. In Tara Singh Vs. Municipal Corporation, Chandigarh (supra), it was pleaded by the appellant that the plot in question was purchased by him to earn his livelihood. In that case, reliance was placed on a ruling of the Hon’ble National Consumer Disputes Redressal Commission, wherein, it was held that if the goods are purchased for earning livelihood, the same falls within the definition of a consumer. In Paras Build-Call Pvt. Ltd. and Anr. Vs. Brig. A.S.Jassar and Anr. (supra), the booth purchased by the complainant was for earning livelihood of his son. It was the case of the respondent that he had purchased the booth only for the employment of his son to earn his livelihood. In the instant case, there is no plea by the complainants that they purchased the said booth for earning their livelihood by way of self employment. On the other hand, there is a plea in the rejoinder only for opening of the boutique for the mother of complainant No.1, for earning her livelihood. Hence, we feel that none of the rulings is applicable to the facts of the present case. We are of the view that the complainants did not book the commercial booth with the OPs for the purpose of earning their livelihood by means of self employment, but to earn profit. Therefore, they are not covered under the definition of ‘Consumer’ as defined in Section 2(d)(ii) of the Consumer Protection Act, 1986.

11.              For the reasons recorded above, the complaint is not maintainable and the same is dismissed, leaving the parties to bear their own costs. However, it is made clear that the complainants are not debarred from seeking remedy against the OPs in the civil court or before any other appropriate Forum provided under the law.

12.              In the second complaint case No.743 of 2012 titled as Pawan Deep Singh Bawa & Anr. Vs. Ansal Properties and Infrastructure Ltd. & Anr., the complainants pleaded in their rejoinder that they had applied for booth for father of complainant No.1, for earning his livelihood by opening the fire fighting and fire safety equipments in that booth. For the reasons recorded in the order of complaint case No.742 of 2012 titled as Ankur Dada & Anr. Vs. Ansal Properties and Infrastructure Ltd. & Anr., this complaint is also devoid of any merit and the same is dismissed, leaving the parties to bear their own costs.

13.              The certified copies of this order be sent to the parties free of charge. The file be consigned.