Delhi

StateCommission

CC/155/2015

MRS. K.K. BHARDWAJ - Complainant(s)

Versus

MR. PRADEEP JAIN (CHAIRMAN) PARSVNATH DEVELOPERS LTD. & ANR. - Opp.Party(s)

24 Apr 2018

ORDER

IN THE STATE COMMISSION : DELHI

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

 

Date of Decision:24.04.2018

 

Complaint Case No.155/2015

 

Mrs. K. K. Bhardwaj,

C-II/ 2386 Vasant Kunj,

New Delhi-110070.                                                                …. Complainant

 

Versus

 

1.      Shri Pradeep Jain (Chairman),

          Parsvnath Developer Ltd.,

          6^th Floor, Arunachal Building,

          19, Barakhamba Road,

          New Delhi-110001.                                            … Opposite Party No.1

 

2.      Smt. Nutan Jain,

          Vice Chairperson,

          Parsvnath Developer Ltd.,

          Parsvnath Metro Tower,

          Shahdara, New Delhi-110001.                          … Opposite Party No.2

 

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

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

2. To be referred to the reporter or not?

 

Ms. Salma Noor, Member

 

1.      Briefly the facts are that the builder i.e. OP had offered physical possession to the complainant of shop No. D-18A, Ground floor, admeasuring 250 sq.ft.in Mall Manhattan, Faridabad on 03.03.2013. The complainant had made total payment of Rs. 17,00,585.75 as per construction linked payment plan. It is stated that initially the said shop was allotted to Mr. Amit Kumar Gupta and Mr. Mohit Kumar Gupta who had paid OP a sum of Rs. 3,10,000 towards booking amount. It is alleged that on 05.03.2005 the complainant was lured to pay the aforesaid two allottees a sum of Rs. 3,10,000 and in exchange OP would transfer  the aforesaid shop in the name of the complainant. Thereafter, on 07.09.2012 the complainant received a letter from the OP offering physical possession. It is alleged that on reaching the site the complainant met the manager Mr. Vinod Chauhan and was shocked to see that the entire mall was closed. It is further stated that there was no electricity, no air conditioning/ heating ventilation functional (HVAC). There were no big labels, nor any food court as mentioned in the product brochure. It is also stated that the mall was dark without any lights, no CCTV cameras were functional nor were any fire alarms and fire sprinklers operational. The complainant has alleged that the aforementioned facilities and amenities were committed by the OP as part and parcel in the Buyers Agreement and product brochure. It is alleged that due to aforesaid reasons he could not take possession on the said date. It is alleged that manager of the OP had assured that the mall with 200 shops would be functional, complete with all the facilities within one month by 11.10.2012. On 12.10.2012  the complainant  visited the site and again found the mall closed without any facilities.

 

2.      It is alleged that the complainant had made several visits to the office of the OP and met certain officials who assured her that the aforesaid facilities/infrastructure would be provided soon. It is alleged that in February 2013 when the complainant visited the office of the OPs she was threatened with cancellation of the shop and forfeiture of the entire amount if the complainant did not take physical possession within 10 days. Therefore, the complainant was forced to take physical possession on 03.03.2013. The attorney of the complainant had specifically mentioned on the possession certificate “No electricity so AHU (Air Handling Unit) not tested. Manahttan Mall is totally closed.” Complainant states that she had informed the OPs that she was unable to start business as the `Mall’ is totally closed and no facilities are provided. The complainant states that several letters and e-mails have been sent to the OPs enquiring as to when the mall would be fully functional but, no reply has been received from the OPs so far.

 

3.      The complainant has alleged unfair trade practices on the part of OPs. It is alleged that for the past 10 ½ years OP has been giving false commitments. The complainant has alleged that she would have earned Rs. 47,00,000 as 18% interest p.a on the principal amount of 17,00,000 paid to the OPs. The complainant has prayed for award of Rs. 47,00,000 as compensation. The complainant has also pray for compensation for mental harassment and directions have been sought the OP to provide all the amenities,  infrastructure and services as committed in the Buyers Agreement and product brochure.

 

                   4.      OP was served with the notice of the complaint Ld. Counsel for the OP appeared on 29.09.2015. A copy of the complaint was supplied to the OPs with a direction to file written statement within 30 days. However no written statement was filed by the OPs within a stipulated period as such the right of the OPs to file written statement was closed vide dated 11.03.2016. The said order was not challenged by the OPs.

 

5.      In support of the complaint ,complainant has filed evidence by way of affidavit wherein she has reiterated the facts as are stated in her complaint on oath. The complainant has also filed written arguments. Written arguments is also filed by the OPs.

 

6.      We have heard the parties on the preliminary issue of maintainability and perused the record. In order to appreciate the contention of the respective parties, it would be useful to have a look on the definition of consumer as envisaged under Section 2(1)(d) of the Act. The section reads 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)

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 purposes;

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”

 

7.      On reading of the above, it is clear that consumer is a person who buys goods or hires or avails of services of any one for consideration present, past or future. The section however carves out an exception by providing that the person who has purchased goods or hired/availed of services for commercial purpose, shall not be included in the definition of consumer.

 

8.      Admittedly, in the instant case that the complainant has entered into an agreement with the opposite party in respect of a shop  No.D-18A, Ground Floor in Mall Manhattan, Faridabad having approx. super area 250 sq. ft. Thus, it is clear that the services of the opposite parties were availed by the complainant for commercial purpose.

9.      On bare reading of the above it is clear that the shop booked by the complainant is a commercial property and it was supposed to be used for commercial purpose. No where in her complaint it is stated by the complainant that the shop is booked by her for earning “livelihood”  Thus, it cannot be disputed that the complainant has hired or availed of services of the opposite party for commercial purpose.

10.    In view of the discussion above, as the complainant has availed of services of the opposite parties for commercial purpose, she is not a consumer as envisaged under Section 2(1)(d) of the Act. Thus, the complainant has no locus standi to file a consumer complaint.

11.    Perusal of record also shows that the complainant had earlier filed a complaint before the District Forum i.e. CC No.1698/2009 whereby the complainant had settled her claims with OP vide settlement agreement dated  27.04.2012. Considering the aforesaid settlement, the District Forum had  dismissed the complaint as withdrawn vide order dated 08.06.2012. The said order is reproduced as under:-

“08.06.2012

          None for complainant.

          Ms. Rosette  (adv.) for OP.

          Counsel for OP filed the memorandum of understanding along with photocopy  of letter of withdrawal signed by complainant.

          The matter has been settled between the parties. As such complaint dismissed as withdrawn.

          File be consigned to R/R.”

 

12.    The terms of settlement of MOU dated 27.04.2012 on the basis of another aforesaid order was passed, are as under:-

“That the second party has agreed to handover the physical possession of the shop bearing SL NO.GF-D-18A to the first party within a period of 3 months after installation of AHU and thereafter maintenance charges will commence.

1. That the first party ahs satisfied herself through her power of attorney that there is no discrepancies left which were pointed out in the complaint.
2. That it has also been agreed that the name of the daughter of the first party Ms. Anju Sood shall be  added alongwith the name of Mrs. K.K. Bhardwaj without charges.
3. That it has also been agreed that neither the first party nor the second party will claim any amount with respect to the aforesaid shop accrued till date.
4. That the second party has assured the first party that sale deed with respect to the aforesaid shop will be executed soon and the first party shall have to pay for the stamp duty and other incidental expenses.
5. The complainant, however, shall be at liberty to avail of her remedy by approaching the appropriate Forum on the same cause of action.”

 

13.    The complainant had not disclosed about the aforesaid settlement dated 27.04.2012 in the complaint. There is concealment of material facts by her. The same was disclosed by complainant only in the evidence by way of affidavit when the counsel for respondent had pointed out the said position before us. In these circumstances, the complainant has also not approached the commission with clean hands.

14.    In view of the above discussion, the present complaint stands dismissed.

15.    A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. 

16.         File be consigned to Record Room.

 

 

(Justice Veena Birbal)

President

 

 

 

(Salma Noor)

Member