Delhi

StateCommission

CC/229/2018

SH. KRISHAN KUMAR KHATRI & ANR. - Complainant(s)

Versus

EARTH INFRASTRUCTURE LTD. - Opp.Party(s)

SIDDHARTH CHAUDHARY

21 Mar 2018

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments :  21.03.2018

Date of Decision : 02.04.2018  

Complaint No. 229/2018

 

In the matter of:

 

1. Shri Krishan Kumar Khatri,

R/o Flat No.B-3,

Plot No.B-37, First Floor,

Shalimar Bagh Extension-II,

Ghaziabad, UP.

 

2. Smt. Renu Khatri,

R/o Flat No.B-3,

Plot No.B-37, First Floor,

Shalimar Bagh Extension-II,

Ghaziabad, UP. ….......... Complainant

 

Versus

 

Earth Infrastructure Ltd.,

Having registered Office At:

 

B-100, Second Floor,

Phase-I, Naraina Industrial Area,

New Delhi-110028.   ….....Opp. Party

                                                                

CORAM

 

Hon’ble Sh. O. P. Gupta, Member (Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?                                       Yes/No

2.      To be referred to the reporter or not?                                                                                                     Yes/No

Present : Ms. Mansi Batra, Counsel for the  Complainant.

 

PER   :        Shri Anil Srivastava, Member (G)

                            

 

 

JUDGEMENT

 

Sh. Krishan Kumar Khatri and Smt. Renu Khatri, husband and wife, resident of Delhi, have filed a complaint before this Commission (for short complainants) under Section 17 of the Consumer Protection Act 1986 (the Act) against the Earth Infrastructure Ltd. & Ors, hereinafter referred to as Opposite Party, alleging deficiency of service in not handing over the physical possession of the office space booked by them to earn their livelihood and, secondly, for failing to pay the assured returns as agreed to.

2.       Facts of the case, necessary for the disposal of the complaint, are these.

3.       The complainants had booked for earning their livelihood an office space with the opposite party  for setting up a business unit vide booking No.ETO/B/1184, admeasuring 300 sq. ft. in their project under the caption “Earth Tech One”, being the Unit Type as “ETO 300” for IT/ITES at 8^th Floor, Plot No.1, Sector-Tech Zone, Greater Noida, UP in 2012 and for this purpose the complainants had deposited an amount of Rs.1,50,000/- on 04.12.2012 and an amount of Rs.13,10,133/- on 04.07.2013.

4.       Memorandum of Understanding was executed between the complainants and the Opposite Party on 18.07.2013. As per MOU the OP had undertaken to:-

(i)      Deliver the possession of the office space in the year 2016, and, secondly

(ii)     returns would be paid to the complainants.

5.       The complainants alleging that the OP was deficient on two accounts, namely, non-handing over of the possession of the office space booked by them within the time frame and secondly, assured returns, as agreed to, was not paid, and finding no response to the legal notice issued, have filed this complaint praying for the relief as under:

(i)      Allow the consumer Complaint of the Complainants and compensate the Consumer/Complainants while directing the opposite parties to pay the amount of Rs.39,75,862.34/- alongwith the interest upto date thereon @24% p.a. from 01.10.2017 till full and final payment is made;

(ii)     The damages of Rs.5,00,000/- for mental agony and harassment suffered by the Complainants for not receiving the peaceful physical possession of the commercial unit may kindly be allowed to the complainants and against the opposite parties;

(iii)    Cost of the litigation may kindly be allowed to the complainants and against the opposite parties;

(iv)    Pass any other orders(s) as this Hon’ble Forum may deem fit and proper in the interest of justice.

 

6.       The matter was listed before us for admission hearing on 21.03.2018 when Ms. Mansi Batra, counsel for the Complainant appeared and advanced arguments.

7.       In the first blush, we felt that the unit booked by the complainants and allotted by the OP was apparently for commercial purpose moreso when the component of assured return is involved. Once the subject unit is commercial, the complainants, relying on the provisions of Section 2(1)(d) of the Act, would not be a consumer in which case they would not be entitled to raise a consumer dispute.

8.       We may now advert to the provisions contained in Section 2 (1) (d) of the Act which posits as under:

 (d) “consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or 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

(ii) ¹² [hires or avails of] any services for 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 ¹² [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 ¹³ [but does not include a person who avails of such services for any commercial purpose];

 

9.       On a plain reading of the above provision of the Act it is clear that if services are availed for commercial purpose, the person availing such service would not be a consumer since outside the ambit and scope of the definition of consumer. The complainants in the given case have done the transaction assured of returns. Returns per se tantamount to accruing of profit, leading to an inevitable conclusion that the transaction done is coupled with the angle of investment and if that be the case the complainants would not be consumer which means not entitled to raise a consumer dispute. The ld. Counsel for the complainant while arguing could not satisfy us  that the transaction done was not for commercial purpose which means the  case cannot be covered under exception  clause contained in the provisions of Section 2(1)(d).

10.     We have given out careful consideration to the subject. The issue in the subject matter involves, among others, assured returns.  The transaction involving assured  returns are indisputably commercial.  We are fortified in our view by the judgement of the Hon’ble NCDRC in the matter of Smt. Priti Arora Versus M/s. ARN Infrastructure India Private Limited (CC No.246/13 decided on 06.04.2017). The Hon’ble NCDRC in yet another matter, in the matter of Rishi Malhotra Versus Blue Coast Infrastructure Development Pvt. Ltd. & Ors as reported in I[2017] CPJ 541 (NC) is pleased to hold that if the transaction done is coupled with assured returns, it would be treated as  for commercial purpose.

11.   In view of the discussion done we return the complaint. The complainant may if he so desires agitate the matter before a Fora enjoying jurisdiction to hear and adjudicate the issues involved in this case. Ordered accordingly.

12.   A copy of the order be sent to the parties free of cost as statutorily required and file be consigned to Record Room.

 

 

(ANIL SRIVASTAVA)                          (O.P. GUPTA)

MEMBER                                                MEMBER (JUDICIAL)