Haryana

StateCommission

CC/51/2014

Nitin Sharma - Complainant(s)

Versus

HSIIDC - Opp.Party(s)

01 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,          PANCHKULA.

 

                                                Complaint No.51 of 2014

                                                       Date of Institution: 16.05.2014                  Date of Decision: 01.06.2016

 

Nitin Sharma, NH-1, 31 KM Stone, G.T.Road, Kundli Distt. Sonepat.

…..Complainant

 

Versus

 

1.      Estate Manager, HSIIDC Ltd. office, Kundli Distt.Sonepat.

2.      Chairman, HSIIDC (Regd. Office) C-13/14, Sector-6, Panchkula.

          …..Opposite Parties

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs.Urvashi Agnihotri, Member.                                    

For the parties:  Mr.S.R.Bansal, Advocate counsel for the complainant.

                             Mr.R.S.Sihag, Advocate counsel for the opposite parties.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

It is alleged by the complainant that he applied for plot with HSIIDC through opposite party No.1 at Kundli and plot No.105 in Phase V Sector 53 Kundli Distt.Sonepat was allotted in the month of March, 2010. He could not start the work as basic amenities were not available.  Vide letter dated 19.01.2014 he requested O.P.No.1  to refund the amount of Rs.2,19,73,646/-, but, O.Ps. sent payment of Rs.1,80,98,288/- vide cheque No.934701 dated 31.01.2014. He requested O.Ps. for balance payment, but, of no use. Legal notice dated 01.04.2014 was sent, but, neither any reply nor any refund was sent by the O.Ps.  Due to deficiency in service of O.Ps., he suffered loss to the tune of Rs.38,75,358/-, as mentioned in the complaint, and they be directed to pay the same besides Bank interest from 31.01.2014 till realization, cost of litigation and other expenses. 

2.      O.Ps. filed reply and contended that the allotment was made under prestigious project category for fabrication of commercial vehicles with investment of more than Rs.30 crores in fixed assets.  The size of the plot was 4050 sq. mts and tentative price of the plot was Rs.2,27,75,000/-. M/s Malwa Industries opted to make payment of the plot in installments alongwith interest as per clause 2 (v).  As per clause 4 of the agreement allottee was required to implement the project within 3 years of the offer of possession i.e. 20.07.2010, but, he failed to start the project and surrendered plot vide letter dated 19.01.2014 and accordingly they refunded Rs.1,80,98,288/- as per terms and conditions.  The complainant is not a consumer” as plot was allotted for commercial purpose. Objections about maintainability, jurisdiction etc. were also raised and requested to dismiss the complaint.

3.      Arguments heard.  File perused.

3.      Learned counsel for the complainant vehemently argued that he was allotted industrial plot to start business for earning livelihood,by way of  self-employment and it was not commercial purpose and is covered by ‘explanation’ of section 2 (1) (d) of the Consumer Protection Act, 1986 (In short “Act”).  

4.      This argument is of no avail.  As per averments of the complainant and perusal of complaint it is clear that O.Ps. were developing commercial complex and for fabrication of commercial vehicles, complainant was allotted a commercial site therein.  Complainant was allotted this site for business purposes and not for earning livelihood and is not covered by  explanation under section 2 (1) (d) of the Act, which is reproduced as under:-

          “2(i)

4. “consumer means any person who:-

1. 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
2. (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 (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 a person who avails of such services for any commercial purpose)

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

                  

5.      From the bare perusal of this section it is clear that if any person has purchased any property for earning livelihood by means of self-employment only then he is a consumer and not otherwise.

6.      As per facts mentioned above it cannot be presumed that he purchased the plot for the purpose of earning livelihood because he is already running business and for further expansion of business, he applied for plot.  It was clearly mentioned in HSIIDC format that the plots were sold for

 

commercial purpose. As per opinion of Hon’ble National Commission expressed in Manu Talwar & Ors. Vs. BPTP Ltd. IV (2015) CPJ 396 (NC)  extension of business activities, which is already in existence, cannot be covered by the term self-employment and earning livelihood. In the present case the complainant neither purchased this property for his self-employment nor for earning livelihood.  It was only purchased for commercial purpose. It is no where alleged in the complaint that to earn livelihood or for self-employment this property was purchased.  All these facts clearly shows that the plot in question was commercial in nature and the complainant did not purchase it for earning livelihood by self employment.  He cannot be considered as consumers as provided under section 2 (i) (d) of the Consumer Protection Act, 1986 (In short “Act”).  These views are fortified by the opinion of Hon’ble National Commission expressed in Pradeep Singh Pahal Vs. TDI Infrastructure Pvt. Ltd. CPJ 1 (2016) 219.

7.                When this commission is not having jurisdiction to adjudicate upon this matter it is not supposed to go into the merits of the case because judgement without jurisdiction amounts to nullity as opined by Hon’ble National Commission expressed in Revision Petition No.317 of 1994 titled as Haryana Urban Development Authority Vs. Vipan Kumar Kohli decided on 19.01.1995.  Resultantly complaint fails and the same is hereby dismissed.

June 01st, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.