ORDER Date: 16 February 2017
Manju Bala Sharma, Member
Instant complaint has been filed by the complainant on 18-01-2017 alleging therein that the complainant has booked a commercial unit measuring 500 Sq. feet approx, on 7th floor in the complex ‘’Earth Techone’’ Greater Noida, U.P. for a sale consideration of Rs. 36,32,500/- with the respondent, and a memorandum of understanding dated 31.12.2012 got executed between the OP and the complainant. As per the Memorandum of Understanding dated 31.12.2012, the OP was to pay Rs. 30,000/- per month as assured return on the amount of Rs. 30,00,000/- (Rupees Thirty Lakhs only) deposited by the complainant as sale consideration amount of the said unit. The OP also assured the complainant to hand over the peaceful vacant possession of the said unit to the complainant till September, 2015. It was also assured by the OP to the complainant that if the OP failed to handover the peaceful possession to the complainant till September, 2015, then the OP will continue to pay Rs. 30,000/- per month to the complainant. OP paid Rs. 30,000/- per month as assured return of amount to the complainant till September 2015. In the month of September, 2015 the OP failed to hand over the peaceful vacant possession of the said unit and OP also stopped to pay the said assured return amount of Rs. 30,000/- per month to the complainant from October, 2015 till date as agreed between the OP and the complainant.
The complainant visited OP so many times, but the officials of the OP used to made excuses on one pretext or another.
It further stated by the complainant that the act of the OP is absolute deficiency of service, as well as no post service will amount to breach of contract because the OP has not paid the interest on the amount as agreed between the complainant and the OP.
The complainant sent a legal notice dated 23.12.2016 to the OP calling upon him to pay the interest amount of Rs. 4,50,000/- (Rupees Four Lakhs Fifty Thousand only) (for the period of October, 2015 to December 2016) on the amount for the unit and also demanded a sum of Rs. 5,00,000/- for undue and unjust harassment and torture and also to pay a sum of Rs. 51,000/- towards the cost of legal notice, but no reply has been received by the complainant till date.
Pleading deficiency in service on the part of the OP it is prayed that OP be directed to pay the interest amount of Rs. 4,50,000/- for the period of October, 2015 to December, 2016 to pay damages on account of undue and unjust harassment, torture mental agony, etc., to the complainant and a sum of Rs. 50,000/- as cost of litigation and proceedings.
Heard on the maintainability of the complaint and perused the file.
In the present complaint the complainant has disclosed that he booked a commercial unit and assured return of Rs. 30,000/- was promised to be paid by the OP. The actual purpose of booking has not been disclosed. It is nowhere mentioned in the complaint that the above said office space was booked by the complainant exclusively for the purpose of earning of livelihood by means of self employment.
Hon’ble Supreme Court in the case Laxmi Engineering Works V/s PSG Industrial Institute, AIR 1995 SC 1428 in Para No. 24 has held as under .
(i) the explanation added by the Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18.06.1993 is clarificatory in nature and applied to all pending proceedings.
(ii) Whether the purpose for which a person has bought goods is a ‘’commercial purpose’’ within the meaning of the definition of expression ‘‘consumer ‘’ in section 2 (d) of the ACT is always a question of fact to be decided in the facts and circumstance of each case.
(iii) A person who buys goods and use them himself, exclusively for the purpose of earning his livelihood, by means of self employment is within the definition of the expression ‘’consumer’’.
Looking to the above facts and circumstance we are of the considered opinion that complainant is not a consumer within the provision of Section 2 (1) (d) of the Consumer Protection Act 1986 and present complaint of the complainant is not maintainable in this forum.
As complainant is not a consumer, the complaint is dismissed as not maintain able. File be consigned to Record Room.
