Delhi

New Delhi

CC/1402/2008

MS. MANJU KHANNA & OTHERS - Complainant(s)

Versus

ANSAL PROPERTIES & INFRASTRUCTURE - Opp.Party(s)

-

28 May 2019

ORDER

                  CONSUMER DISPUTES REDRESSAL FORUM-VI

            (DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

                                               NEW DELHI-110001

 

Case No.C.C.1402/2008                                                                                      Dated:

In the matter of:

1. Ms. Manju Khanna,

W/o Sh. Man Mohan Khanna

 

2. Sh. Pradeep Khanna

S/o Late Sh. A.R.Khanna

 

Both R/o 45/11,

East Patel Nagar, New Delhi.

…… Complainant

                                                 Versus

Ansal Properties & Infrastructure Ltd.,

115, Ansal Bhawan,

16, Kasturba Gandhi Marg,

New Delhi-01

 

……. Opposite party.

 

NIPUR CHANDNA, MEMBER

 

O R D E R

 

The complainant has filed the present complaint against the O.P u/s 12 of Consumer Protection Act, 1986. The brief facts as alleged in the complaint are that the complainants  booked commercial Shop  in Palam Vyapar Kendra at Palam Vihar, District Gurgaon, Harayana bearing no. B-82 with an approximate super area of 275 sq.ft. in the basement of said Vyapar Kendra vide allotment letter dt. 24.8.1988.  As per terms of the said allotment letter, the said shop, was to be handed over to the complainant within a period of three years from the date of allotment.   In terms of the said allotment, the complainants had paid a sum of Rs.68,750/- on various occasions.  However, the OP did not hand over the possession of the said shop. 

2.     In the first week of May 1997, complainants received a possession letter vide which he was asked to take the possession of shop No.52 instead of shop No.82 earlier allotted to them vide letter dt. 24.8.1998.    Complainants approached the official of OP for getting the previous allotment, but nothing has been done by the OP, either vide letter dt. 18.5.2007, OP asked the complainants to pay sum of Rs.40,000/- despite the fact that the complainants had already paid the entire amount. The complainants vide their legal notice dt. 3.7.2008 called upon the OP to hand over the possession of the shop No.82  despite legal notice, OP failed to resolve the issue, complainant, therefore, approached this Forum for redressal of his grievance. 

3.     The Complaint has been contested by OP. In its W.S. OP has denied any deficiency in service on its part and has alleged that the present complaint is not maintainable as the complainant is not a ‘Consumer’ and this Forum has no jurisdiction to entertain the same.

4.     Rejoinder to the WS has been filed by the complainant wherein, the objection raised by OP  were simply denied.

5.     Both the parties have filed their evidences by way of Affidavits.

6.     We have heard arguments advanced at the bar by  the complainants.

        In Rajesh Gulati and another Vs. DLF Commercial Complex Ltd. 2016 (2) CPR 219 of Hon’ble National Commission it was held that :

“It is not disputed that the complainants had booked the office space in the 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 Section 2(1)(d) of the C.P. Act.

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

2 (1) (d) “Consumer” means any person who –

 

1. 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 of for any commercial purpose; or

 

2. [hires or avails of] any services for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any beneficiary or such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid any 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 purpose];

 

 

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}

          On 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 opposite party 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.

          So far as the explanation is concerned, para 5 and 28 of the affidavits of the respective complainants are relevant.  Both the complainants have filed affidavit with identical language. Para 5 and 28 of the respective affidavits are reproduced as under:-

“5. That on the basis of information provided by the respondent and on the assurance given by it to the effect that the respondent would complete the construction of the said complex within three years from the date of booking, for my use, I along with the complainant No. 2 applied for allotment of a unit in the said complex/DLF Towers, at a consideration of Rs. 1,82,88,000/- plus Rs. 6,00,000/- towards parking space and as per terms and conditions, then intimated, and paid a sum of Rs, 7,50,000/- towards booking amount, vide following cheques :

1. Cheque No. 000046 dated 8/3/08 for Rs. 3,75,000/- drawn on Kotak Mahindra Bank Ltd., payable at New Delhi and

 

2. Cheque No. 756899 dated 8/3/08 for Rs. 3,75,000/- drawn on Indian Bank, payable at New Delhi

Both the cheques were duly acknowledged vide receipt No. QEC/Sales/DSH427/SHP020R=16869 dated 8/3/08. Copy of the receipt dated 8/3/08 bas been filed on record and is exhibited as Exhibit CW-1/1.

28.  That since the respondent had not yet commenced any construction work at the site and in the facts and circumstances the respondent will not be able to complete the construction work at site and will not be able to deliver the said unit to me along with the complainant No. 2 as it was promised while seeking booking from me along with the complainant No. 2, the respondent is guilty of having rendered deficient services, and committed unfair trade practices.  The respondent by its said conduct has also caused damage and loss to me along with the complainant No. 2 as I along with the complainant No. 2 have not been able to get the possession of the unit booked by us, which was for our own personal use, and for the said reason, I along with the complainant No. 2 value the said loss and damage of Rs. 5,00,000/- and the said amount is payable by the respondent to me along with the complainant No. 2.”

          On reading of the above, it is clear that if the affidavits are to be believed the subject unit was booked by the complainants jointly for their 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 complainants is not covered, within the exclusion clause, Reference be made to the decision of this Bench in the matter of Inder Nath Mehra & Ors. Vs. Purearth Infrastructure Ltd. decide on 15/5/15.

 

7.     In the present case also complainant has mentioned in his complaint, rejoinder and evidence that he had booked commercial shop in Palam Vyapar Kendra at Palam Vihar, District Gurgaon, Harayana bearing no. B-82 with an approximate super area of 275 sq.ft. in the basement of said Vyapar Kendra  and it is nowhere stated that the subject unit was booked exclusively for the purpose of earning livelihood by way of self-employment. 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 C.P. Act, 1986. The complainant is not the “Consumers” in the light of Rajesh Gulati’s Case (supra).

8.     In view of the discussion above, the instant complaint is not maintainable.  Hence, the complaint is dismissed with liberty to the complainants to avail of their remedy by moving appropriate forum, as per law.

This final order be sent to server (www.confonet.nic.in ). A copy of this order each be sent to both parties free of cost by post as statutorily required. File be consigned to Record Room.

 

Pronounced in open Forum on  28/05/2019.

 

( ARUN KUMAR ARYA )

PRESIDENT

   ( NIPUR CHANDNA )                                                ( H.M. VYAS )

           MEMBER                                                                MEMBER