Haryana

StateCommission

A/576/2016

RAHEJA SQUARES - Complainant(s)

Versus

DEVINDER SINGH - Opp.Party(s)

SHIV KUMAR

19 Sep 2017

ORDER

TSTATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                First Appeal No.576 of 2016

                                                          Date of Institution: 27.06.2016                         Date of Decision: 19.09.2017

 

1.      M/s Raheja Squares, Maintenance Office, Basement Plot A, Sector-2, IMT Manesar,Gurgaon through its authorized person Sh.Piyush Sharma, Manager, Legal.

2.      M/s Raheja Developers Pvt. Ltd., 215-216, Rectangle 1-D-4, Behind Hotel Sheraton, Saket District Centre, Saket, New Delhi-110016, through its authorized person Sh.Piyush Manager, Legal

 …..Appellants

                                      VERSUS

Devinder Singh, Advocate, District Courts, Seat No.50, Hall No.5, Gurgaon.

          …..Respondent

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.                              

For the parties:  Mr.Suvir Kumar, Advocate counsel for the appellants.

Mr.Naveen Sharma, Advocate counsel for the Respondent.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

It was alleged by complainant that he purchased office No.F-28 in Raheja Square IMT Manesar to run his office.  In between 16.10.2010 to 15.10.2010 he was out of station during summer vacations and could not open his office. After vacation when he opened office it was found that there was heavy leakage of water from the roof and all the equipments, as mentioned in complaint, were damaged.  He brought this fact to the notice of O.Ps. and requested to make up the loss, but, to no use, hence this complaint.

2.      In reply it was alleged that  complainant purchased shop in commercial complex and was not covered by definition of consumer. Shop was let out to M/s Balaji M-Tech Private Limited and that company was running business from this shop. Most of the time it was lying vacant and opened occasionally. Leakage in the shop was not  due to their fault, actually it was through FCU machine drain pipe.  There was no damage as alleged by complainant. There was same dampness in the side wall and all the problems were solved at their end.  Objections about locus standi, accruing cause of action, estopple, jurisdiction of consumer fora, misjoinder of parties were also raised and requested to dismiss complaint.

3.      After hearing both the parties learned District Consumer Disputes Redressal Forum, Gurgaon (In short “District Forum”) allowed the complaint vide impugned order dated 20.04.2016 and directed as under:-

“Opposite parties are directed to pay Rs.1 lac alongwith interest @ 9% p.a. from the date of filing of the present complaint i.e. 06.09.2010.”

4.      Feeling aggrieved therefrom, O.Ps. have preferred this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for appellants vehemently argued that shop in question was situated in commercial complex and was let out by complainant to M/s Balaji M-Tech Private Limited.  It is no where pleaded that the shop in question was purchased for earning livelihood by way of self-employment, so he is not covered by the definition of consumer and complaint is not maintainable.

7.      This argument is of no avail.  O.ps. have not produced an iota of evidence to show that shop in question is let out to M/s Balaji M-Tech Private Limited.  Mere pleadings cannot take place of evidence. It was the bounden duty of the O.ps. to show that M/s Balaji M-Tech Private Limited was running business from this shop.  Further if an advocate has purchased some property in commercial complex for his legal profession it cannot be considered as commercial purpose. Hon’ble Rajasthan High Court has answered this question in  Sajjan Raj Surana Vs. Jaipur Vidytut Nigam Ltd. and its AEN (AIR 2002 Rajasthan 109) which is as under:-

“The practicing advocate or lawyer by the legal profession cannot be treated as coming on commercial activity, irrespective of his Chamber or office either established or situated in own residence or in any commercial complex and thus his such chamber or office cannot be termed as commercial establishment, since the lawyers profession is not a commercial activity and therefore tariff imposed  by RSEB (Cr.JVVNL) under its any tariff of 1981 or 1985 or 2001 to cover the lawyers/advocates office/chamber as commercial establishment is not a correct categorization and it is absolutely erroneous to cover it by a tariff essentially meant for commercial purpose. Further for the purpose of imposing domestic tariff, it is not necessary that advocates/lawyers family should also live in the premises where his professional office/chamber is situated in any of residential house/area or commercial complex/campus/area of the local self-government body like JDA/UT/Municipality.”

8.      After this opinion nothing is to be left to be discussed as far as purchasing any premises by an advocate for doing practice is concerned.  Had he been running any business from this shop then it could have been a different fact.

9.      Learned counsel for appellants further argued that water seepage was due to fitting carried out by the complainant and not due to manufacturing defect. Even otherwise as per clause 6.7 of agreement executed in between them it is the duty and responsibility of the purchaser to look after the inner of portion of any property.  Learned District Forum failed to take into consideration this aspect, so also impugned order is also to be set aside.

10.    This plea cannot be accepted because as per clause 6.7 of agreement a purchaser is responsible for the internal maintenance i.e. within the four walls of the unit purchased by him.   If any leakage etc. has taken place due to external fitting etc. by builder then he is not liable for the same. It is alleged in preliminary objection No. 9 C of reply that leakage came from FCU machine drain pipe line which was rectified to the satisfaction of the complainant.  It shows that complainant was not responsible for this leakage and O.ps. are liable to compensate him.  Findings of learned District Forum are well reasoned based on law and facts and cannot be disturbed.  Resultantly appeal fails and the same is hereby dismissed.

11.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules.

 

September 19th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.