CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/26/2016
No. DF/ Central/ Date
Hari Shanker
S/o Sh. Bal Kishan Dass
R/o H. No. B-5/80, Sector-18, Rohini,
Delhi-110089. …..COMPLAINANT
VERSUS
Earth Infrastructure Ltd.
Through its Managing Director/
Authorised Signatory Sh. Naveen Goel.
Atul Gupta.
Vikas Gupta.
Rajnish Mittal.
Avdesh Goel.
All Directors of Earth Infrastructures Ltd.
At: 26, 1st Floor, Pusa Road,
Karol Bagh, New Delhi-110005.
Shalini Ahuja
Employee of Earth Infrastructures Ltd.
(C/o 26, 1st Floor, Pusa Road,
Karol Bagh, New Delhi-110005. …..OPPOSITE PARTIES
Quorum : Ms. Rekha Rani, President
Ms. Manju Bala Sharma
Mr. R.C. Meena, Member
ORDER
Ms. Rekha Rani, President
1. Instant complaint has been filed by Hari Shankar (in short the complainant) under Section 12 of the Consumer Protection Act, 1986 as amended inter-alia pleading therein that he is earning his livelihood by running a small shop of school bags. In April, 2014, he booked a commercial space in a project of Earth Infrastructure Pvt. Ltd. (in short OP) at Greater Noida, Uttar Pradesh on the assurance of OPs that he would be getting handsome profits and accordingly a memorandum of understanding was executed on 12.04.2014 between the complainant and OPs by which OP agreed to sell office space. OPs assured to pay Rs. 9,201/- per month as fixed payment which they paid for one year and stopped w.e.f. May, 2015. In August, 2015 complainant visited the office of OPs and was shocked to know that construction was stopped by OPs. He was also shocked to know that he was directed to deposit a further sum of Rs. 64,000/-. “High level cheating, forgery, fraud, and misappropriation” allegedly has been committed by OPs. The complainant made a complaint dated 18.08.2015 to Commissioner of Police, SHO of P.S. Karol Bagh and DCP Economic Offences Wing, Mandir Marg on 19.08.2015. He has also filed a case under Section 156(3) Cr.P.C. which is pending in the court of Ms. Shilpa Jain, M.M. Central Distt. Delhi. The investigating officer has submitted a report in which it is mentioned that OPs have cheated many innocent persons including the complainant. Instant complaint was filed seeking direction to OPs to refund to the complainant of Rs. 9,98,400/- with interest @ 24% per annum from the date of receipt of amount, Rs. 5,00,000/- as compensation for causing mental pain and litigation expenses.
2. OP appeared and contested the claim vide its written statement. It is stated that the complainant is not a consumer under the Consumer Protection Act and that he is an investor as is evident from Para 3 of the complaint wherein he alleged about the allurement of handsome profits in respect of office space, which is a commercial unit and Complainant in Para 1 admittedly has a shop for earning his livelihood. It is further stated that the complaint is not maintainable as the complainant has already filed a complaint to Commissioner of Police, SHO of P.S. Karol Bagh, DCP Economic Offences Wing, Mandir Marg and also under Section 156(3) Cr.P.C. wherein investigation/trial is going on. It is further stated that he has accused OPs of cheating, forgery, fraud and misappropriation and therefore the remedy lies before the civil court and not Consumer Forum as held in Jayantilal Keshavlal Chauhan vs. The National Insurance Co. Ltd., 1994 (1) CPR 396.
3. We have heard Sh. Rao Ranjit Singh, counsel for complainant.
4. OPs have submitted that complainant is not a consumer under Section 2(1)(d) of the Consumer Protection Act and thus the complaint is not maintainable before this Forum. Complainant in Para 1 of the complaint has alleged that he is earning his livelihood by sale of school bags in a small shop. He has further submitted that he was lured by OPs to book a commercial space for earning handsome profits. Complainant’s own case establishes that he already has a business of sale of school bags from where he is earning his livelihood. It is revealed that he booked the commercial space in question for earning handsome profits which is in the nature of expansion of business.
5. In Laxmi Engineering Works. vs. P.S.G. Industrial Institute reported as (1995)3 Supreme Court Cases 583 the scheme of the Consumer Protection Act was examined by the Supreme Court and it was observed:
“The Act provides for 'business-to-consumer' dispute and not for 'business-to-business' disputes. this scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal.”
Bearing this principle in mind the Supreme Court examined the meaning of the term 'consumer' as provided in Section 2(d) of the Act in which it was specifically laid that a consumer will not include person who buys good for resale or for any commercial purpose.
6. In M/S Uni Steel Corporation vs M/S Pure Earth Infrastructure & Anr. First Appeal No.-106/2015, State Commission Delhi vide its order dated 02.04.2018 observed that :
“Booking of a unit for the purpose of expansion as is the object in the given case, envisage existence of business establishment already, in which case one would not be covered within the exception clause of Section 2(1)(d) of the Act (supra) and if that be the case, availing of service would tantamount to for commercial purpose and in such event complainant would not be a consumer. This view is fortified by the decision of the Hon'ble NCDRC in the matter of Ashish Ahuja vs. M/s. Gold Cause Construction Pvt. Ltd. & fours ors-cc 201/15- decided on 15.04.2015- reported-2015 SCC online NCDRC 31-holding 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 with 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 the 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.”
7. It is further complainant’s case that OPs assured him to pay a fixed return of Rs. 9,201/- per month which they paid for one year and then stopped payment w.e.f. May, 2015. Payment of assured return also takes the complainant out of the definition of a consumer as held by Delhi State Commission in I.J. Mahani Vs M/s ARN Infrastructures India Ltd. in First Appeal No. 561/2016. In that case complainant alleged that OPs inter-alia agreed to give him assured return at the rate of 12% per annum from the date of the booking. State Commission vide its order dated 09.01.2017 dismissed the complaint and observed that:
2. “Even on merits I do not find any infirmity in the order of the district forum. District Forum has observed that complainant has not mentioned in the complaint that booking of the space was for the purpose of earning livelihood by means of self employment.
3. Counsel for complainant submitted that complainant has mentioned the necessary ingredient and district forum over looked the same. I asked the counsel for appellant to point out as to in which para complainant has mentioned the same. She referred to para 17 of the complaint where what has been mentioned is that complainant is retired person from PSU who had invested his capital with a view to earn assured returns/committed returns for his livelihood after retirement. Since he was deprived of his assured return, he is finding extremely difficult to manage his livelihood.’’
4. I am unable to appreciate the submission. Assured return can be by way of rental income and not by self employment. Self employment must have ingredient of putting in some physical labour to earn the livelihood. That is missing. District Forum has rightly concluded that booking is not covered under consumer protection Act.’’
8. In Ram Ikbal Rai & Sheela Rai vs. M/s. Vardhman Estates & Developer Pvt. Ltd. & Anr. FA No. 1595/2016 dated 31.01.2017 our State Commission observed that:
“3. Commercial space is not covered by Consumer Protection Act. Over and above that the complainants want recovery of assured return. Consumer Court is not a form for recovery of amount. For that remedy can be in Civil Court.”
9. Delhi State Commission in Mumtaz Khan Vs. Cosmic Structures Ltd. in First Appeal No. 1558/2017 vide order dated 02.01.2018 held that :
‘’2. It is true that complainant has mentioned in Para 2 that he intended to set up his own office in the booked space from which he could earn livelihood but merely alleging so is not enough. Complainant has not disclosed as to what activity he was to carry on in the booked space, what is his qualification. Moreover the agreement to pay assured return in fact indicates the complainant was interested in getting return. That is all.
3. This question has already been examined by National Commission in CC No. 246/13 titled as Preeti Arora vs. ARN Infrastructure India Pvt. Ltd. decided on 06.04.2017. It was held that intention of the complainant while booking space was not to use the same for earning livelihood by way of self employment. Had that been so, complainant would not have entered into lease clause with the OPs. Thus this case does not fall within the explanation of section 2 (1) (d) of Consumer Protection Act. The complaint was dismissed.’’
10. In Krishan Kumar Khatri and Renu Khatri vs. Earth Infrastructure Ltd. & Ors. Complaint No. 229/2018 dated 02.04.2018 before State Commission, Delhi the issue in the subject matter involved, among others, assured returns. The transaction involving assured returns was held to be commercial and reliance was place on the judgment of the National Commission in Priti Arora Versus M/s. ARN Infrastructure India Private Limited (CC No. 246/13 decided on 06.04.2017), of Rishi Malhotra Versus Blue Coast Infrastructure Development Pvt. Ltd. & Ors. as reported in I[2017] CPJ 541 (NC) wherein it was held that if the transaction done is coupled with assured returns, it would be treated as for commercial purpose.
11. Further in the instant case complainant has alleged that high level cheating, forgery, fraud, and misappropriation has been committed by OPs/accused and he has already made a complaint dated 18.08.2015 to Commissioner of Police, SHO of P.S. Karol Bagh and DCP Economic Offences Wing, Mandir Marg on 19.08.2015. He has also filed a case under Section 156(3) Cr.P.C. which is stated to be pending in the court of Ms. Shilpa Jain, M.M. Central Distt. Delhi and in view of the criminal proceedings having being initiated against OPs, it is submitted by the OPs that instant complaint is not maintainable before this Forum and the appropriate remedy is to move to civil courts as per the judgment in Jayantilal Keshavlal Chauhan(supra) .
12. In view of the complainant having booked a commercial space with OPs for earning profits by expansion of his business and in the hope of receiving assured returns every month, the complainant does not fall within the definition of a consumer under Section 2(1)(d) of the Consumer Protection Act. The complainant is thus not maintainable before this Forum. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on this ______ Day of ________ 2019.
