Coram: Mohd. Anwar Alam, President
Vikram Kumar Dabas, Member
Manju Bala Sharma, Member
ORDER Date:05th December, 2016
Manju Bala Sharma, Member
Instant complaint has been filed by the complainant on 24/08/2015 alleging therein that complainant registered herself for allotment of a space in proposed IT/ITES projects viz ‘’Cosmic Corporate Park’’ of the OPs and paid Rs. 2,28,158/- (Rs. Two Lacs Twenty Eight Thousand One Hundred Fifty Eight Only) through cheque. When complainant asked for final booking form she came to realize that OP has changed the form by forging the documents and increased the flat cost up to 23 Lacs but at the time of booking the cost was Rs. 21,21,489/- (Rs. Twenty One Lacs Twenty One Thousand Four Hundred Eighty Nine Only). OPs also mentioned wrong details on the form hence complainant put a cancellation request but till now OPs have not refunded back any amount. Complainant wrote several mails informing the OPs about her grievance but of no avail. Complainant has stated that, complainant is a consumer has defined under section 2 (1) (d) of the Consumer Protection Act as complainant registered herself for an allotment of space in the Project of OPs by paying consideration and the same has been done for a non commercial purpose. Pleading deficiency in service on the part of OPs the complainant prayed that OPs be directed to apologise for the inconvenience caused to the complainant to pay Rs. 2,28,158/-(Rs. Two Lacs Twenty Eight Thousand One Hundred Fifty Eight Only) along with 18% interest ; to pay a sum of Rs. 3 Lac towards the mantle agony and Rs. 1,000/- (Rs. One Thousand only) as cost of litigation.
Notice was issued to the OPs. In the written statement OPs took preliminary objections that the Unit booked by the complainant with the OPs is a retail shop hence complainant is not a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act 1986. Complainant has made serious allegations of forgery against the OPs without prejudice to his right OPs submits that allegation of forgery involves disputed question of facts and adjudication of which cannot be done as per summary procedure under Consumer Protection Act. On merit, OPs admitted that complainant booked for allotment of retail shop and first installment of Rs. 2,28,158/-(Rs. Two Lacs Twenty Eight Thousand One Hundred Fifty Eight Only), was made on 03/08/2014 and denied all other allegations made in the complaint.
In the Rejoinder complainant has stated that the booking was done by the two ladies for earning their livelihood and the word flat used in the complaint referred to flat cost and not the structure of flat. The complainant has asserted the fact that the OPs have forged the original application form was collected by the agent of the OP without pashing the photographs and without writing the amount agreed upon saying that there was some back calculation involved to reach the agreed cost + service tax.
Complainant has filed her evidence by way of affidavit and also filed documents in support of it as customer information form Annex I, receipt issued by OPs against the payment of Rs. 2,28,158/-(Rs. Two Lacs Twenty Eight Thousand One Hundred Fifty Eight Only) made by the complainant Annex –II, customer information form Annex-III, request letter of OPs dated 20/08/2014 Annex - IV, letter dated 08-10-2014 written by the complainant to the OP seeking refund of payment along with letter dated 18/09/2014 Annex- V, and legal notice Annex –VI, along with its courier receipt Annex – VII. OP has also filed his evidence by way of affidavit and filed down payment plan as Ex OPW 1/1, receipt dated 04/08/2014 as Ex OPW 1/2, welcome letter dated 20-08-2014 as Ex OPW 1/3 and copy of the cheque dated 03/08/2014 issued by the complainant as Ex OPW1/4 in support of its case.
We have heard learned counsel of the parties, gone through the relevant documents on record and written arguments filed by both the parties. The complainant herself has admitted that the retail shop booked was for non-commercial purpose and solely for earning livelihood in case of any calamity and the complainant is a consumer within the meaning of section 2 (1) (d) of the Consumer Protection Act. Counsel for the OP has vehemently argued that the space booked was commercial and was not for earning livelihood of the complainant as the complainant herself stated that the space was to be used for her livelihood in case of any calamity. Counsel for OP has relied upon judgment of Hon. National Commission Ashok Thapar V/s Supreme Indosaigon Associates & Anr CC No. 31/2008 decided on 19-01-2015 in which it has been held as under:-
‘’In the context of the services of housing construction, the explanation comes into play if the following conditions are fulfilled:
(i) The complainant buys the property exclusively for the purpose of earning his livelihood and
(ii) He employs himself i.e. he is personally engaged in the activity which is carried on in the aforesaid property.
Unless both these requirements stand fulfilled, the explanation does not come into play and the complainant cannot be said to be a consumer as defined in the Consumer Protection Act, 1986.
In our opinion the above said decision of Hon. National Commission is applicable to the present case as the complainant has not been able to prove that the purpose of the booking the retail shop was non-commercial and solely for earning livelihood in case of any calamity.
Complainant has alleged that forgery has been committed by the OP. As this Forum has no jurisdiction to entertain the complaints relating to forgery and adjudication of which cannot be done as per the summary procedure the complainant is to approach proper forum for this purpose. Hence, we are of the opinion that the complaint is not maintainable and is dismissed with no order at cost.
File be consigned to Record Room.
Announced on this 05th December, 2016.
