Delhi

StateCommission

CC/12/89

JITENDER PAL VERMA - Complainant(s)

Versus

DLF UNIVERSAL LTD. - Opp.Party(s)

01 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

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

 

                                                                         Date of Decision : 01.09.2016

                   Date of arguments heard : 17.08.2016

Complaint Case No.89/2012

 

 

Jitender Pal Verma

(Through General Power of Attorney Holder)

Shri Pushpender Sachdeva

S/o Shri B.D. Sachdeva

R/o 25/77, Punjabi Bagh

New Deli-110026

 

……Complainant

Vs.

 

M/s. DLF Universal Ltd. (Formerly

DLF Commercial Complexes Limited/

DLF Retail Developers Ltd.)

Through Valsala Sr. Executive Director-Marketing

Registered Office,

DLF Centre, Sansad Marg,

New Delhi-110 001

•  

CORAM

 

O.P. Gupta,Member(Judicial)

 

 

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

2.       To be referred to the reporter or not?

 

 

 

 

O.P. Gupta, Member (Judicial)

 

1.         The case of the complainant is that he took commercial office space in DLF Commercial complex of the OP. The OP issued allotment letter dated 28.4.08 in respect of commercial property No. DSH-346 in DLF Tower, 15 Shivaji Marg, Delhi. Agreement was executed on 13.5.09 and the total consideration was Rs.1,43,52,000/-. The complainant paid Rs.52,33,200/- out of the total consideration till 18.9.08. The complainant was working at Bangkok and came to India in April, 09. Vide letter dated dated 31.12.08, the OPs’ offered exit option till 5.4.09 which was extended till start of construction at site. The OPs made exist option for those who have paid 35% of the contracted amount. The complainant offer to exit through e-mail on 3.7.09 and stop the payment of further amount. The OPs did not accept exit option. Legal notice was sent on 8.11.10 which was replied on 16.12.10. On 12.7.10 the OPs intimated change of property No. From DSH-346 to DSM-342 and area from 897 sq. ft. to 976 sq. ft. without consent of the complainant. On 3.1.11, a cancellation letter was received showing forfeiture of Rs.40,32,458.23 and refundable amount as Rs.12,00,741.77. Hence this complaint for Rs.2,00,000/- on account of deficiency in service, Rs.2,00,000/- for hardship, harassment and mental agony, Rs.25,000/- for litigation, Rs.10,000/- for miscellaneous expenses, refund of Rs.52,33,200/- with interest @18% p.a. from 18.9.08 till date.
2.         OPs filed written statement raising a preliminary objection that complainant squarely falls out of definition of ‘consumer’ called out of the definition of ‘Consumer’ under section 2 (i) (d) of the Consumer Protection Act. The reasons being that complaint relates to booking in relation to a commercial space in a commercial complex. It also took plea of arbitration.  On merits, the OP denied the case of the complaint. It submitted that it gave resale/exit objection to the customers who had made payment of 35% of the total consideration, which was open till 5.4.09. It denied that complainant exercised option to exit. Alternatively it pleaded that even if for the sake of arguments it is taken to be true that complainant exercised exit option, still it was after two months from the closing of exit option. The OP informed this fact vide latter dated 11.2.10. The allotment was cancelled due to non payment vide letter dated 31.1.11.
3.         The complainant filed rejoinder reasserting his case and disputing the case set up by the OP. He filed his own evidence by way of affidavit.
4.         On the other hand, the OP filed affidavit of Sh. Atul Srivastava, AR in its evidence.
5.         Both the parties have filed their written arguments.
6.         I have gone through the material on record and heard the arguments. The controversy regarding complainant not being a consumer is sufficient to decide this complaint. There is no mention in complaint that booking of commercial space was done for earning livelihood by means of self employment. So the complaint is not maintainable.
7.         In support of his submissions Counsel for the OP relied upon decision of the National Commission in Consumer Case No.304 of 2013 titled as Indernath Mehra Vs. Pure Earth Infrastructure Limited decided on 15.5.15 in which complaint in respect of the commercial space in a commercial building was rejected.
8.         Counsel for the OP also relied upon decision of the National Commission in Consumer Case No.402/16 titled as Balbir Singh Randhawa Vs. DLF Universal Limited decided on 18.3.16. In said decision also complaint in respect of booking of commercial space was rejected. Same is the position in Consumer Case No. 50 of 2011 titled as Rajesh Gulati Vs. DLF Commercial Complex Limited decided on 18.3.16. In said decision also complaint in respect of booking of commercial space was rejected.
9.         On the other hand Counsel for the complainant submitted that complainant has mentioned in reply to preliminary objection No. 2 in his replication that he wanted to come to India and start his practice as Chartered Accountant to earn his livelihood by means of self employment and remain with his family.
10. This appear to be a after thought to meet the objection of the OP. Had there been any truth in said plea, the same would have been mentioned in the complaint itself. Moreover it has been held by National Commission that taking this plea in replication is not sufficient. For this reliance has been placed on Pradeep Singh Pahal Vs. TDI 1 (2016)CPJ 219.
11. Still further similar plea has been dealt with by the National Commission in the case of Balbir Singh Randhawa Vs. DLF Universal Limited Supra. In that case the complainant was based in ‘Abhdhabi’ and was held to be gainfully employed. The plea that he wanted to earn his livelihood by self employment after retirement and shifting to India was found to be vague as no time frame had been given in the complaint. Vague averment was held not sufficient to bring the case of complainant within the ambit of section 2 (i)(d). Same is the situation here. Complainant itself mentioned in para 5.7 of the complaint that at the relevant time he was working in ‘Bangkok.’
12.         The Counsel for the complainant also relied upon decision of the National Commission in Consumer Complaint No. 88/12 titled as Koshal Rana Vs. DLF Commercial Complex decided on 9.9.14. In the said judgment in para 22 it has been noticed that complainant has mentioned in para 5 of his complaint that he required office space for his own personal use and for carrying out his business work therein. So that decision is distinguishable. In fact this decision has been distinguished by the National Commission in Indernath Mehra Vs. Pure Earth Infrastructure Limited Supra in para No. 6.
13. In view of the above discussions I find that complainant is not covered in the deficiency of ‘Consumer’. The complaint is dismissed. However, the complainant will be at liberty to seek his remedy before prper court after taking advantage of Section 14 of the Limitation Act as per decision of Hon’ble Supreme Court in Birla Technology Ltd. Vs. Nuteral Glass & Allied Industries Limited (2011) 1 SCC 525.
14. A copy of this order as per the statutory requirements be forwarded to the parties free of charge.
15. File be consigned to record room.