Per Sh. Rakesh Kapoor, President

The complainant had booked 1000 sq. ft. office space with the OP. She has alleged that she was assured 12% p.a. returns every month w.e.f. August, 2007.  She had, however received annual returns at the agreed rate from January 2010.  No payment was made to her from August 2007 to December 2009 as was agreed upon.  The OP had also stopped making payment of the annual return w.e.f. January, 2011.  The complainant had taken up the matter with the OPs but to no result and had therefore approached this Forum with the present complaint.

       The complaint has been contested by the OP. Preliminary objections have been taken that the complaint is barred by  resjudicata. It has been stated that the complainant had filed a similar complaint on the same cause of action being complaint No. 204/2011 which was dismissed by this Forum on merits after giving a detailed findings.  It has also stated that the complaint is barred by time.  It is further stated that the complainant had booked the office space for commercial purposes and does not qualify to be a “consumer”.  The OP has contested the complaint on merits and has reiterated that the complaint is without merits and is liable to be dismissed.

     We have heard arguments advanced at the bar and have perused the record.

    At the outset we may  state that the filing of the present complaint has created a piquant situation.  The complainant had earlier also filed a complaint on the same facts against Sh. Nitin Rekin, Ankit Gupta and Sh. OP  Sharma being Directors/G.M. of the OP company.  The OP company was not impleaded as a party in the said complaint  and the complaint was filed in the personal capacity of the Directors/G.M.  An objection, as regards  mis joinder/non joinder of the parties was taken on behalf of the respondents in the said complaint but no remedial measures were taken by the complainant in the said regard.  At the time of the final disposal of the complaint, this Forum noticed this fact and held vide order dated 15.1.2013 that the complaint was not maintainable against the Directors/Employees of the Company by observing as follows:-

     The complainant herself has filed the copy of the MOU, dated 2.4.2008 executed between ARN Infrastructure India Ltd. and herself.  The MOU speaks that the developer is a Company, registered under the companies Act 1956.  The contract was executed between the Private Ltd. Company and the complainant .  As per law, the Company registered under the Company Act, 1956 is a legal entity and that it can sue or can be sued.  The Directors and the employees of the Company can not file the civil suit on their own name.  Similarly, for any deficiency in service or violation of the terms of the Contract/MOU, the aggrieved party can file complaint only against the Company and not against the Directors and employees.

     While filing the reply to the complaint, the OPs informed the complainant in writing that the complaint had been wrongly against the and that it was bad on account of mis-joinder and non-joinder of parties.  Still the complainant did not file any application to implead ARN infrastructure pvt. Ltd. as opposite party so that she could claim relief as prayed.  Under the circumstances, we hold that the complaint is not maintainable against the OP s and that it is bad on account of mis-joinder and non-joinder of the parties.

    However, while making the aforesaid observations the Forum felt that it would be appropriate to decide the matter on merits as well so that the parties do not suffer on that account.  The Forum vide its order dated 15.1.2013 therefore, passed the following orders on merits.

 

      The complainant has pleaded and testified that she had made payment of Rs.45 lacs to the OPs in the year 2007 and she was assured 12% return per month from the year 2007 itself. The same has denied by the Ops The MOU is dated 2.4.2008. There is no document on the file to believe that the complainant made payment of Rs.45 lacs to the company in the year 2007 and that she was assured return of 12% from the year 2007. The legal notice of the complainant is dated 18.3.2010, it also does not say that the payment o Rs.45 lacs was made in the year 2007 or that assured return was to be made from the year 2007. By way of this legal notice the complainant called upon the Company to make her paymenf of Rs.50,000/- each for the month of January, 2010 to March, 2010 because of non delivery of the possession of the office Space.

 

      Considering the MOU and the legal notice, we find that the complainant Was never assured that she would get assured payment of 12% from the year 2007. There is nothing on the record to suggest that she made the Payment of Rs.45 lacs to the Company without receipt. She made payment of Rs.19.50 lacs Only as mentioned in the MOU. 

     

     The company has made payment of 12% assured amount after 

deducting TDS for the period January, 2010 to December 2010. There might be Some delay in making/receiving the payment due to the reasons mentioned in the complaint. However,  on that account no deficiency has been made to the complainant. 

     The OPs have placed on the file  the completion certificate issued to the company it by Greater Noida Industrial Development Authority dated 1.9.2010.  The complainant was informed about the completion of the project and was asked to make the balance payment to receive the possession The complainant has placed that letter on the file and it is dated 26.9.2010. The complainant has stated that letter was made available to her on 8.10.2010 and accordingly she put that date on the letter It is not the case of the complainant that she had made the due payment to the company to receive the possession Since, she received the assured payment till December, 2010, therefore, the date on the letter of the company to the complainant i.e. 25.9.2010/8.10.2010 does not matter.

 

         Though, the complainant has stated that the project is not completed and there are various defects or incomplete job yet we believe the completion certificate as issued by Greater Noida Industrial Development Authority On the basis of the paper as placed on the file by the complainant, the completion certificate issued by the authority cannot be discarded. The complainant has not issued any notice/letter to the GNIDA to challenge the correctness of the completion certificate as issued by it. 

 

      We believe the completion certificate and hold that the complainant has not taken the Possession of the Space inspite of receipt of the letter dated 8.10.2010 to make due payment and to receive the possession. 

     It appears that the complainant had filed an appeal before the State Commission against the order dated 15.1.2013 of this Forum.  During the course of the hearing before the state commission, the complainant had made a statement on 29.5.2013 wanting to withdraw the complaint in order to file a fresh complaint with the District Forum.  The State Commission passed the following orders on 29.5.2013 in the said appeal.

     29.5.2013

FA-491/13

Present: Appellant in person

                  This matter comes up before us for hearing on urgent application. Since the matter is urgent, therefore application allowed.

Appellant made a statement that she wants to withdraw the appeal to file a fresh before the appropriate Forum. Prayer is allowed.  The appeal is dismissed with liberty to file the fresh case before appropriate Forum.

     FDR, if any, deposited by the appellant be released in his favour after completing due formalities.

Sd/

                                 Presiding Member

S/d

Presiding Member

     The complainant, thereafter, approached this Forum again with the present complaint grant the OP company.

    We have considered the matter and have perused the record.  It appears to us that the present complaint is barred by limitation.  The complainant had filed the earlier complaint against the Directors and an employee of the OP company.  She should have filed the complaint against the OP Company which is a separate  legal entity and can be sued and sue itself in its own name.  The complaint against the Directors and the employee of the company for an act of deficiency on the part of the company was not maintainable.  However, the cause of action against the OP company had already begun when the OP Company had refused to make payment as promised.  The fact that the complainant had filed the complaint against wrong persons does not save her from the perils of  limitation.  We are, therefore, of the considered opinion that the present complaint which was filed against the OP company in this Forum on 23.8.2013 is not maintainable as it has been filed beyond the period of limitation.

     Secondly, the complainant had not pressed the appeal on merits  filed by her against the order dated 15.1.2013 of this Forum.  As already stated,  this Forum had decided the matter on merits as well while holding that the complaint was not maintainable as it  had been filed against wrong persons.  Since the order on merit was not assailed upon by the complainant in appeal, it has already attained  finality.  Even otherwise, we are in respectful agreement with the orders on merit passed by this Forum on 15.1.2013.  The reasons given by this Forum vide order dated 15.1.2013 are elaborate appropriate  and justified.

     Thirdly, we do not agree with the contention of the complainant that she had booked the office space for “running English classes” as has been sought to be projected by her by means of evidence.  We have perused the MOU signed between the parties, a copy of which has been placed on record.  It appears to us that the office space was booked with the sole purpose of earning profits.  This is evident from the following provisions in the MOU:-

     That the Developer has assured the Investor to get the first lease done of the unit for a minimum period of three years period @ minimum Rs.45,500/- (Rupees Forty Five Thousand Five Hundred Only) per month from the date of possession.

     In case the lease rent fetched is more that Rs.45,500/- (Rupees Forty Five Thousand and Five Hundred Only) per month then the surplus amount will be divided into both the parties equally for a maximum period of three years after which the entire rent would be given to the Investor.

     That the Developer will given monthly cheques to the Investor in individual names of all co-owners equally for every year till date of possession or further subject to deduction of TDS as per rates described in Income Tax Act, 1961 in the relevant periods.

     There is no evidence on record that the complainant intended to run “English classes” from the office space booked by her in the year 2007 apart from a bald statement made during the course of trial.   Neither any document nor any correspondence has been placed on record showing the intention of the complainant to run “English classes” in the space booked by her. Even the complaint does not bear any such averment.   We are ,therefore,  convinced that the complainant is not a “Consumer” with the ambit of the Consumer Protection Act, 1986  as she had taken services from the OP purely for commercial purposes.

     We hold that the present complaint has no merits.  The same is hereby dismissed. 

Copy of the order be made available to the parties as per rule.  File be consigned to record room.

Announced in open sitting of the Forum on.....................