Delhi

StateCommission

CC/785/2016

SH. ANIL SAXENA - Complainant(s)

Versus

ANSAL PROPERTIES & INFRASTRUCTURE LTD. - Opp.Party(s)

26 Oct 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 26.10.2018

                                                                                                              

                                                                   Date of decision:02.11.2018

 

 

Complaint No. 785/2016

 

 

IN THE MATTER OF:

 

Sh. Anil Saxena

S/o Sh. I.N. Sexena,

R/o G-12/10, Gali No.5,

Brahampuri, Ghonda,

Delhi-110053                                                                ….Complainant                       

VERSUS

 

Ansal Properties & Infrastraucture Ltd.,

115-Ansal Bhawan,

16-Kasturba Gandhi Marg,

New Delhi-110001                                                        ….Opposite Parties

 

 

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?            Yes     

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

 

Present:       Sh. Dhananjay Jain, Counsel for the Complainant

                   Sh. Varun Katyal, Counsel for the OPs

 

PER:           ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           This complaint has been filed before this Commission by Sh. Anil Saxena resident of Delhi, for short complainant, under Section 17 of the Consumer Protection Act 1986, the Act, against Ansal Properties and Infrastructure Ltd., hereinafter referred to OPs, alleging deficiency of service on the part of the OPs, they having cancelled the allotment of the unit allotted to the complainant.
2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant had booked a commercial space admeasuring 398 sq. ft. in the project of the OP, namely, Palam Corporate Plaza at Palam Vihar at Gurgaon and for this purpose an amount of Rs. 5,45,260/- was paid by the complainant as registration money. Total sale consideration for the purpose was of Rs. 27,26,300/-, calculated @ Rs. 6850/- per sq. ft. super built up area. On receipt of the registration money the OPs had allotted the complainant a unit no: UG-192 in the project by way of the allotment letter dated 25.02.2018. The unit so allotted being office/shop is a commercial unit in a commercial project. However according to the complainant the project could not be completed within the time as agreed to, although the complainant with the passage of time had paid an amount of Rs. 13,63,150/- which was 50% of the total sale consideration.
4.           Worst came to the complainant when he came to know that the unit allotted to him stood cancelled, without any intimation or affording him an opportunity to make further payment if was required. This cancellation of the unit amounts to deficiency of service. The complainant had taken up the matter with the OPs, setting out the grounds that the cancellation was bad in law and sought for the refund of the amount deposited by him. In response thereto the OPs responded as under:

 

Dear Mr. “Saxena,

I have discussed the issue with the management and would like to inform that we will be deducting 20% EARNEST money for refund. However if you want to retain the unit we will waive the restoration charges and give you waver of 50% in the interest charged.

 

Regards

 

To put if differently OPs agreed to refund, deducting 20% as earnest money.

 

5.           In these circumstances this complaint has been filed assailing both the cancellation order as also the letter dated 03.02.2015 proposing to deduct 20% earnest money while considering the refund as sought for, and praying for the relief as under:

 

1. Withdraw the wrongful and illegal letter dated 03.02.2015 issued by the OP against unit no. UG 192 in project of respondents in Palam Corporate Plaza.
2. Hand over possession of unit no. UG 192 to complainant complete in all respects.
3. Direct OP to pay comp0ensation of Rs. 4,00,000/- on account of mental torture and physical harassment and Rs. 55,000/- for litigation expenses.
4. Grant such other and further relief as deemed fit and proper in the interest of justice.

 

6.           OPs were noticed but they having not filed the reply within the statutory time have been ordered to be proceeded ex-parte vide proceedings recorded on 13.09.2017. The complainant has filed evidence by way of affidavit. The matter was listed before us for final hearing on 26.10.2018 when the counsel for both sides appeared and advanced their arguments. We have perused the records of the case and given a careful consideration to the subject matter.  
7.           We have considered the contentions of the complainant. It is not disputed that the complainants had booked the office space in a commercial project undertaken by the OP. Therefore, if we go by the definition of “consumer” as envisaged under Section 2 (1)(d)(ii), it is clear that the complainants do not fall within the definition of “consumer” as they have availed of the services for the commercial purpose, unless their case is covered under the explanation clause of Section 2 (1)(d) of the Consumer Protection Act 1986.

 

Section 2(1)(d) of the Act defines the term “Consumer” as under:

          “Consumer means any person who.-

1. Buy any goods for a consideration which has been paid or promised of 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
2.  [hires or avails of] any services of 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 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.

 

8.           On a plain 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 OP exclusively for the purpose of earning their livelihood by means of self-employment. In order to find out whether or not the complainants are covered within the explanation, we have perused the affidavit evidence filed by the parties on the issue of maintainability.
9. The complainant has filed the affidavit. On reading the affidavit, it is apparent that the subject unit was booked by the complainants for his personal use. Affidavit nowhere states that subject unit was booked exclusively for the purpose of earning livelihood by way of self-employment. Therefore, in our considered view the case of the complainant is not covered, within the exclusion clause. Reference be made to the decision of the Hon’ble NCDRC in the matter of Inder Nath Mehra and Ors. vs. Pure earth Infrastructure Ltd. decided on 15.05.2015.
10. As admittedly, the commercial unit was booked by the complainants, it is obvious that the services of the OP were availed for commercial purpose and as such, in view of the exclusion carved out under Section 2 (1) (d) (ii) of the Consumer Protection Act 1986, the complainant is not the “consumer” and as such he cannot maintain the consumer complaint.
11. Ld. Counsel for the complainants submits that the Bench should consider that despite receipt of a huge amount of payment made by the complainant against the consideration amount, the OP has not constructed the relevant unit and no service has been given to the complainant. This plea is of no avail to the complainant for the reason that complainant is not the “consumers” and as such he cannot raise a consumer dispute in the consumer fora.
12. In view of the discussion above, the instant complaint is not maintainable. Hence, the complaint is rejected with liberty to the complainants to avail of his remedy by moving appropriate forum.
13. Ordered accordingly. Liberty is granted to the complainant to seek exclusion of time spent in this Commission as per the dictum laid down by the Hon’ble Apex Court in Laxmi Engineering works versus P.S.G. Industrial Institute II as reported in II [1995] CPJ 1 (SC).
14. A Copy of this order be forwarded to the parties to the case free of cost as statutorily required and file be consigned to record.

 

 

 

 

(ANIL SRIVASTAVA)                                                                                            (O.P.GUPTA)

              MEMBER                                                                                       MEMBER (JUDICIAL)