Delhi

StateCommission

CC/11/352

NEW ERA INDIA COUNSULTANCY PVT. LTD. - Complainant(s)

Versus

DLF COMMERCIAL COMPLEXS INDIA & ORS. - Opp.Party(s)

30 Nov 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing: 30.11.2018

                                                                                                              

                                                                   Date of decision:10.12.2018

 

 

Complaint No. 352/2011

 

IN THE MATTER OF:

 

New Era India Consultancy (P) Ltd.

E-6, 1^st Floor Main Road, Kalkaji

New Delhi                                                                            ….Complainant                           

VERSUS

 

DLF Commercial Complexes India 

Through its Managing Director

Mr. Ajay Khanna

 

Mr. Ajay Khanna

Managing Director

DLF Commercial Complexes India

 

Ms. Payal Gandhi

DGM, Consumer Services

DLF Commercial Complexes India

 

All Respondents having their office at

DLF Commercial Complexes India

DLF Centre, 2^nd Floor, Sansad Marg

New Delhi-110001                                                       ….Opposite Parties

 

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER

 

 

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

 

Present:       Sh. Umang Mahender, Proxy Counsel for Ms. Garima Goyal Counsel for the Complainant

                   Ms. Priya Deep, Counsel for the OPs

 

PER:           ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.                  The New Era India Consultancy (P) Ltd. based at Delhi has filed this complaint before this Commission under Section 17 of the Consumer Protection Act 1986 (the Act), for short complainant, against DLF Commercial Complexes India, hereinafter referred to as OPs, alleging deficiency of service on the part OP owing to they having not delivered the office space booked by them despite agreed period for the purpose having been elapsed and despite the payment as per schedule having been made and praying for the relief as under:

 

1. Direct the respondent to return to the complainant the original amount of Rs. 25,00,000/- with interest charged @ 18% w.e.f. 01.03.2008 till the date of refund by the OP;
2. Direct the respondent to pay compensation of Rs. 5,00,000/- to the complainant on account of mental agony, torture and harassment suffered by the complainant at the hands of the OP and for having deprived the complainant of a having a commercial property;
3. Award costs of the proceedings to the complainant from the OP;
4. Pass such other or further order(s) as this Hon’ble Forum deem fit and proper in the facts and circumstances of the case and in the interest of justice.

 

2.                 Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant company on the look out of an office space, booked it with the OPs on 01.03.2008, paying an amount of Rs. 25,00,000/-. Total sale consideration for the purpose was Rs. 3,33,36,000/- (Annexure C-1). On receipt of the booking amount the OPs had provisionally allotted office space bearing no: Doc 602 at 6^th floor in their proposed project at DLF Towers, Okhla Phase I Okhla, New Delhi. The possession of the said office space was agreed to be handed over, as per the letter dated 10.09.2008 (Annexure C-4), issued by the OPs, in 2 ½ years. The relevant extract of the letter is reproduced below:

 

Start of work/expected completion date

We expect to start work at Okhla site by mid November 2008, we will shortly schedule the Bhoomi Poojan ceremony. It will be my honour if you could join me for the ground breaking ceremony for which I would send you a invitation separately.

 

I take this opportunity to assure you that we will endeavour to make this project he most desirable Commercial destination in South Delhi.

 

Based on the above construction start date and committed delivery date, we have clear 2 ½ years available, which is more than adequate to complete the work. We shall try to expedite the timelines forward in view of customer’s requests for a quicker delivery date.

 

4.                 The complainant has alleged that despite the assurance of the OPs to complete the project by February 2011, there was no sign of any construction at the site. Worst happened, according to the complainant, when they came to know that necessary and required approval of the authority concerned had also not been received by the OPs to set the construction into motion. Notwithstanding that further demand of Rs. 88,48,400/- has been raised by the OPs.
5.           In these circumstances the complainants pressed for the refund of the amount deposited with 18% interest since the construction of site was nowhere near possibility. Since the request for refund was not favourably considered despite legal notice having been issued on 21.07.2011, this complaint has been filed before this Commission for the redressal of the grievances.
6.           OPs were noticed and in response thereto they have filed their written statement resisting the complaint both on technical ground as also on merit. Their technical objection is that the complainants having booked the office space surely for the purpose of expansion of their existing establishment/business, are, relying on the provisions of Section 2(1)(d) of the Act, not consumers and if that be the case, they are not entitled to raise a consumer dispute. Infact the OPs for this purpose had also filed an application under Section 26 of the Act praying for the dismissal of the complaint on this ground. Their further argument is that the case of the complainant is not covered under the exception carved out under the aforesaid provision of the Act. We may at this stage advert to the provisions of Section 2(1)(d) of the Act and exception, which is indicated as under:

 

“Consumer means any person who.-

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

{Explanation- For the purpose of this clause,” commercial purpose” does not include use by person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.

 

 

7.                 Both the parties have filed their evidence by way of affidavit as also the written submissions. The matter was listed before this Commission for final hearing on 30.11.2018 when the counsel from both sides appeared. The ld. Counsel for the OPs maintained that the complaint is not entertainable both on the grounds that the complainants are not consumer and secondly also from the point of pecuniary jurisdiction.
8.           On a plain 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 OP 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.
9.           The complainants are a company. They are already in existence with their establishment/business. It is not the case of the complainant that the office space booked by them is for earning livelihood by means of self-employment. As 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 Consumer Protection Act 1986, the complainant is not the “consumer” and as such he cannot maintain the consumer complaint.
10. The complainants have however relied on the judgment of the Hon’ble Supreme Court of India in the matter of Bunga Daniel Babu versus Sri Vasudeva Construction and ors in Civil Appeal No: 944 of 2016 disposed of on 22.07.2016 holding that the company seeking allotment of plot of land is not excluded from the definition of consumer but reliance of this judgment in the given case, the fact in that case being the allotment of a plot of land for self use, is misplaced since facts of the case are not apposite to this case as in this case the issue is that the company is seeking to buy an office space.
11. In case of SKG Engineering Pvt. Ltd. vs. Emaar MGF Land Pvt. Ltd., III (2010) CPJ 260 (NC) the complainant company booked office space and paid consideration but the OPs cancelled the booking and forfeited the amount. It was held that the space was booked for office purpose and not for earning livelihood by means of self-employment and, therefore, the complaint was not maintainable. In the Rajasthan State Industrial Development and Investment Corporation Ltd. (RIICO) vs. Diksha Enterprises, III (2010) CPJ 333 (NC), a plot was allotted to the complainant for setting up a factory, but the same was cancelled. It was held that the allotment was for a commercial purpose and, therefore, the complainant was not a consumer under the Act. In the present case also, a commercial unit was allotted to the complainant. The complainant, therefore, is excluded from the definition of ‘consumer’ under the Act and is not competent to file the present complaint.
12. The Hon’ble NCDRC in the matter of Mostera Estate Pvt. Ltd. vs. Ardee Infrastructure Pvt. Ltd. as reported in IV [2010] CPJ 299 (NC) is pleased to hold as under:

 

“Complainant alleges that it has availed of the services of the opposite party for providing space in the Mall and paid Rs. 33,01,740/- towards sale consideration. Even if the complainant, a private limited company is treated as a ‘person’ the purchase of space cannot be for earning its livelihood by means of self-employment within the meaning of the explanation not such a case has been specifically pleaded in the complaint. Purchase of space was for commercial purpose. Complaint, therefore, deserves to be dismissed being not maintainable under the Act. Dismissed as such.

 

13. Same view was taken by the Hon’ble NCDRC in the matter of SKG Engineering Pvt. Ltd. vs. Emaar MGF Land Pvt. Ltd. as reported in III [2010] CPJ 260 (NC)
14. In yet another judgment in the Hon’ble NCDRC in CC-201/2015 in the matter of Aashish Ahuja vs. M/s Gold Cause Constructions Pvt. Ltd. decided on 15.04.2015 was pleased to hold as under:

 

We have carefully considered the submissions made on behalf of the complainant and perused the record. It is undisputed that the complainant alongwith his wife has been running family business of retail fashion accessories. It is also not disputed that the consumer complaint has been filed in respect of alleged deficiency in service in respect of booking of shop, which is a commercial premises. Therefore, unless the case of the complainant is covered within the explanation, which provides restricted definition for commercial purpose, the complainant cannot be termed as “Consumer” as envisaged under Section 2(1)(d) of the Act. The complainant has alleged that he is presently running the business under the name of “Fashion and Trends” in which he is self employed for earning livelihood and he has booked the commercial space in the project undertaken by the opposite party with a view to expand its business. Therefore, he is squarely covered under the restrictive definition of commercial purpose given in the explanation to Section 2 (1)(d) of the Act.

 

15. Secondly, according to the complainant the total sale consideration in the subject matter being Rs. 3,33,60,000/-, this Commission relying on the provisions of Section 17 (1)(a) of the Act, is handicapped to hear and to dispose of the complaint and accordingly prayer has been made for the dismissal of the complaint on this ground also. I am convinced that this Commission is not competent to hear this case for want of pecuniary jurisdiction.
16. In view of the discussion above, the instant complaint is not maintainable on both the grounds, namely, the complainant is not a consumer and secondly this Commission keeping in view the sale consideration involved, does not enjoy the pecuniary jurisdiction. Hence, the complaint is rejected with liberty to the complainants to avail of his remedy by moving appropriate forum.
17. Ordered accordingly. Liberty is granted to the complainant to seek exclusion of time spent in this Commission as per the dictum laid down by the Hon’ble Apex Court in Laxmi Engineering works versus P.S.G. Industrial Institute II as reported in II [1995] CPJ 1 (SC).
18. Since this complaint is being disposed of on technical ground treating complainant not consumer and on the ground that this Commission lacks pecuniary jurisdiction, I do not propose to deal with other ground taken by the OPs on merit of the case.
19. A Copy of this order be forwarded to the parties to the case free of cost as statutorily required and file be consigned to record.

 

 

 

 

(Anil Srivastava)

MEMBER

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