BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.178 of 2015
Date of institution: 16.04.2015
Date of Decision: 21.09.2015
Ankush Kamra, resident of House No.1866/3, Dashmesh Nagri, Jalalabad (West), District Fazilka, Punjab.
……..Complainant
Versus
1. C&C Towers Limited, Head Office: Plot No.70, Sector 32, Gurgaon 122001, Haryana through its Managing Director/Director.
2. C&C Towers Limited, Branch Office: ISBT Cum Commercial Complex, Opposite Verka Milk Plant, Phase-6, Mohali 160055 Punjab through its GM – Commercial.
3. Greater Mohali Area Development Authority (GMADA), PUDA Bhawan, Sector 62, Mohali through its Administrator/Estate Officer.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K. Aulakh, Member.
Present: Shri Vivek Chauhan, counsel for the complainant.
Shri Kabir Sareen, counsel for OP No.1 and 2.
OP No. 3 exparte.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following directions to the OPs to:
(a) to refund him Rs.12,25,000/- with interest @ 10% from 16.12.2013
(b) pay him Rs.1.00 lac for mental tension, agony, harassment and humiliation.
(c) pay him Rs.25,000/- as litigation expenses.
The complainant who is a qualified MBA with the motive to start his own business, in response to the advertisements issued by OP Nos.1 and 2, applied for allotment of Business Condos Suite in the upcoming ISBT Cum Commercial Complex, Opposite Verka Milk Plant, Phase-6, Mohali. Accordingly, the complainant was allotted Unit No.29, 5th Floor in Tower-B of the Business Condos Suites measuring 400 ft. approximately in the aforesaid complex of the OP No.1 and 2. The complainant deposited a sum of Rs.2,50,000/- vide cheque dated 19.05.2012 and another sum of Rs.2.00 lacs on 16.06.2012 which were duly acknowledged by OP Nos.1 and 2. Thereafter, in compliance with the payment schedule, the complainant deposited further sum of Rs.7,75,000/- vide cheque dated 24.07.2012 vide receipt dated 24.07.2012 issued by the OP No.1 and 2. After receipt of these amounts, a formal letter of allotment dated 24.07.2012 containing all the terms and conditions was issued by OP No.1 and 2. As per Clause 1.3.3 of the letter of allotment, the construction was likely to be completed within 48 months from 16.12.2009 after all necessary approvals and sanctions have been made. It was further provided that in case there was delay in completion of construction beyond specified period of 48 months, OP Nos.1 and 2 shall pay simple interest @ 10% per annum on the entire received amount upto 2 years beyond expiry of 48 months from the compliance date. The 48 months construction period has expired on 15.12.2013 and after a period of more than 14 months has elapsed but the construction has not yet been completed. The complainant has not received any communication from the OP Nos.1 and 2 and he has also not been paid 10% interest per annum after expiry of 48 months. The complainant visited OP No.1 and 2 number of times in this regard but every time false assurance have been given to him. Ultimately the complainant vide legal notice dated 02.03.2015 requested the OP Nos.1 and 2 to refund him the amount of Rs.12,25,000/- with interest @ 18% per annum w.e.f. 16.12.2013 but till neither OP Nos.1 and 2 have sent reply to the legal notice not refunded the amount. With these allegations the complainant has filed the present complaint.
2. After admission of the complaint, notice was sent to the OPs. OP No.1 and 2 in the preliminary objections of the written statement have pleaded that the complainant has purchased the commercial has purchased the commercial unit to earn profit as such the complainant is not consumer. The complainant has opted for a payment plan wherein he is clearing installments in a staggered manner linked to various stages of construction. As per the allotment letter, the complainant had an option to surrender of his commercial space subject to certain terms and conditions qua forfeiture. On merits, it is pleaded that the complainant approached the OPs after exercising due diligence and satisfying himself of the venture. The complainant has purchased the commercial property and due to this the complaint cannot be adjudicated upon by this Forum. The complainant was provided a formal draft agreement/contract much in advance to go through it before signing it. The 48 months period as ‘likely’ and there is force majeure conditions. OP Nos.1 and 2 vide letter dated 07.05.2015 informed the complainant about the status of the project. Denying any deficiency in service on their part, OP No.1 and 2 have sought dismissal of the complaint.
3. Notice sent to OP No.3 was duly served but none appeared for it despite repeated calls. Hence, OP No. 3 was proceeded against exparte vide order dated 10.06.2015.
4. To succeed in the complaint, the complainant tendered in evidence affidavit Ex.CW-1/1 and copies of the documents Ex.C-1 to C-12.
5. Evidence of OP No.1 and 2 consists of affidavit of Yash Paul Dua, their AGM Legal/Admin Ex.OP-1/1.
6. We have heard learned counsel for the parties and have also gone through the written arguments submitted by them.
7. The subject matter of the present complaint is allotment of commercial space in the Business Condos Suites ISBT Cum Commercial Complex, Opposite Verka Milk Plant, Phase-6, Mohali. Before we take up the matter on merits, it will be appropriate to look into the preliminary objections of the OPs regarding maintainability of the complaint. As per the OPs complainant is not a consumer and thus the subject matter which is commercial in nature is not maintainable under the Consumer Protection Act. In support of his contention the counsel for the Ops has relied upon two decisions, one of the Hon’ble National Commission in Rohit Chaudhary and another Vs. M/.s. Vipul Ltd., Consumer Complaint No.276 of 2015 decided on 11.05.2015, 2015(3) CPR 53 (NC) and another order of this Forum in Tej Kaur Vs. C&C Towers, Complaint No.132 of 2014 decided on 09.09.2014.
8. Admittedly the complainant has booked a commercial space and deposited Rs.2,50,000/- with the OPs on 19.05.2012, another sum of Rs.2.00 lacs on 16.06.2012 and another sum of Rs.7.75 lacs on 24.07.2012 and he has been issued allotment letter dated 24.07.2012 by the OPs. The perusal of the allotment letter amply shows that the allotment is for the commercial space. The term consumer as defined under Section 2 (1) (d) Consumer Protection Act and brings to its ambit any person who buys any goods for consideration or hires or avails any services for consideration but does not include a person who obtains such goods for re-sale or for any commercial purpose or who avails of any such services for any commercial purposes. However, there is an explanation to this Section which says that for the purpose of this clause, commercial purpose does not include use by a person of goods bought or services availed by him exclusively for the purpose of earning his livelihood by means of self employment.
9. Learned counsel for the complainant has contended that the complainant has booked the commercial space for the sole purpose of starting his own business. Therefore, he is squarely covered under the exception carved out by the explanation and as such consumer dispute raised by him in the complaint is maintainable. We have gone through the complaint and documents attached therewith and found that the complainant has not attached any certificate of his educational qualifications, his present employment with the private company and any other document to show his aspiration and motive to start his own business as no project report is attached with the complaint. In the absence of such documents, it cannot be inferred that the complainant has booked the commercial space for starting his own business for earning his livelihood. Therefore, the explanation to Section 2 (1) (d) is not applicable to him.
10. We do not agree with the aforesaid contention. Since the subject matter of the dispute in the present complaint is office space, as has been held by the Hon’ble Punjab State Consumer Disputes Redressal Commission in Rajinder Singh vs. TDI Ltd., 2012(1) CLT 51 that the purchase of commercial plot did not fall in the category of purchase of goods as defined under Section 2 (1) (d) of the Consumer Protection Act. Even if the commercial space has been purchased for earning his livelihood or self employment, the complainant cannot escape the consequences and implications of the word ‘commercial purpose’. The purchase of commercial space by the complainant from the OPs is a transaction between the parties for commercial purpose and the complainant is not a consumer within the meaning of the Consumer Protection Act. The counsel for the OPs while raising his contention of non maintainability of the complaint as the complainant is not a consumer, has relied on the latest decision of the Hon’ble National Commission in Rohit Chaudhary and another Vs. M/.s. Vipul Ltd. (supra). Therefore, we are in full agreement with the contentions raised by the Ops, duly supported by the orders of the Hon’ble State Commission and Hon’ble National Commission and hold that the subject matter of the complaint being commercial space, the complainant is not a consumer and the complaint is not maintainable before this Forum.
11. The complaint alongwith original documents and member sets are hereby returned to the complainant with date of institution and date of return with liberty to approach the appropriate court/Forum if so advised for redressal of his grievance. Photocopies of the complaint and documents be retained by this Forum and thereafter the papers be consigned to the record room. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
September 21, 2015.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
