Chandigarh

DF-II

CC/701/2021

Neelam Bansal - Complainant(s)

Versus

M/s Dev Constructions through its Proprietor / partner. - Opp.Party(s)

Adv. Pawan Bansal

10 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	701 of 2021
Date  of  Institution	:	16.11.2021
Date   of   Decision	:	10.05.2023

 

 

 

 

 

Neelam Bansal w/o Sh.Pawan Bansal, through her Special Power of Attorney Sh.Pawan Bansal, Advocate s/o Late Sh.H.R.Bansal, resident of House NO.1206, Sector 44-B, Chandigarh.

            …..Complainant

 

Versus

 

1]  M/s Dev Constructions through its Proprietor/Partner Sh.Raj Verma s/o Sh.Ram Chander;

2]  Dev Dutt Verma s/o Sh.Raj Verma,

Both residents of Flat No.001, Suncity, Sector 20, Panchkula.

2^nd Address:- House NO.1281, Sector 26,                Panchkula.

 

     ….. Opposite Parties

 

 

BEFORE:  MR.AMRINDER SINGH SIDHU       PRESIDENT

        MR.S.K.SARDANA                 MEMBER

                               

Argued by   :  Sh.Pawan Bansal, Counsel of complainant

                OPs exparte.

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

 

          The complainant filed present complaint pleading that the complainant in order to raise construction on her Plot No.367, Sector 77, Mohali (Punjab), contacted OPs and entered into an Agreement (Ann.C-1) on 27.11.2019.  It is stated that the total cost of construction was settled in lump sum of Rs.15,50,000/- and the building was to be completed in all respect within four months and latest by 31^st March, 2020. It is also stated that the complainant made advance payments to the OPs and till 31.12.2019 paid an amount of Rs.4,91,000/- for purchase of building material etc., whereas work done by them at the site was negligible (Ann.C-2).  It is submitted that though the OPs failed to complete the construction by the stipulated time but on the request of OPs, the complainant still paid an amount of Rs.2,90,000/- to them from 3.6.2020 to 10.7.2020 (Ann.C-3).  It is also submitted that before laying the lanter, the OPs raised demand for more amount, whereas the complainant was required to pay an amount of total 55% upto the stage of lanter, which comes to Rs.8,52,000/- against which the complainant had already made payment to the tune of rs.7,81,000/-  including Rs.40,400/- paid to GMADA and as such, the complainant was required to pay Rs.1,11,400/- only to that OPs upto the stage of lanter and not Rs.3 lacs as per their demand. Accordingly, the complainant paid an amount of Rs.1,00,000/- to the OPs by way of NEFT.  It is pleaded that after taking payment, the OPs did not place any order for shuttering and even the walls upto the stage of lanter had not been completed at all and thus the OPs have played a fraud with the complainant.  It is also pleaded that the OPs have obtained money from the complainant in excess of the work done by OPs to the tune of Rs.3.50 lacs.  It is further pleaded that the OPs have not handed over the complete documents obtained from the office of GMADA to the complainant i.e. demarcation of the plot, certificate of completion of plinth level etc. despite repeated requests made by her.  It is submitted that the quality of construction  made by the OPs at the site was of very poor quality, walls of the rooms were not rectangular; pillars erected were also not straight and of square shape, as such, the complainant had to get the wrong construction made by OPs dismantled after spending huge amount of money.  Ultimately, the complainant get the building completed by engaging the service of another contractor i.e. Mehraj Constructions on 5.3.2021 (Ann.C-4) and made all payments.  It is asserted that as per valuation obtained by the complainant from approved valuer on 18.8.2020, the total cost of construction incurred by the OPs on the site of the complainant is Rs.4 lacs approx.; even the brick wall work upto the slab level was not complete; no rain water and sewerage water pipes of four inch size have been affixed in the walls which was required to be affixed before construction and casting the slab (Ann.C-5).  It is also asserted that the OPs instead of completing the project, served legal notice on the complainant on25.7.2020, which was duly replied on 6.8.2020 (Ann.C-6 & C-7). Lastly it is prayed that due to deficiency on the part of OPs, the complainant suffered loss and prayed for compensation of Rs.26,50,000/- on account of excess amount received by OPs, harassment due to deficient act of OPs, penalty paid to GMADA for extension of time and loss of rental income of Rs.3 lacs suffered by her.  Hence, this complaint has been preferred.

 

2]      The OPs did not turn up despite being service through publication notice, hence they were proceeded exparte vide order dated 30.5.2023. 

 

3]      Complainant led evidence in support of her contentions.

 

4]      We have heard the ld.Counsel for the complainant and have perused the entire record including written arguments.

 

6]      The complainant herself stated in her complaint that she is residing at Chandigarh and the house at Mohali, which is to be constructed by the OPs, was to be given on rent. In the prayer clause also, the complainant has claimed Rs.3 lacs on account of loss of income on account of rent to be received @Rs.20,000/- p.m. from April, 2020 onwards, hence it is clear that the complainant availed the “services” of the OPs for commercial purpose. 

7]      Section 2(7) of The Consumer Protection Act, 2019 stipulates as under:-

 

        Section 2 (7) "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 service 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 service 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 service for any commercial purpose.

 

Explanation.—For the purposes of this clause,—

(a)     the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 

(b)     the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

 

8]      The “Explanation” to definition under Section 2(7) of The Consumer Protection Act, 2019 gives benefit of being ‘consumer’ only to the complainant, who “buy goods” but not to the complainant who “avail services” in connection with “commercial purpose”. So under The Consumer Protection Act, 2019, with regard to “commercial purpose” a complainant who ‘buys goods’ exclusively for the purposes of earning his livelihood by means of self-employment is a ‘consumer’; but a complainant who ‘availed services’ exclusively for the purpose of earning his livelihood by means of self-employment is not a ‘consumer’.  Therefore, it is clear that in the present complaint, the complainant is not a ‘consumer’ being ousted by the “Explanation” (a) to definition of ‘consumer’ under Section 2(7) of The Consumer Protection Act, 2019.

 

9]      In view of the latest decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Consumer Complaint No.886 of 2020 titled as M/s. Freight System (India) Private Limited Vs. Omkar Realtors & Develop Private Limited & Anr., decided on 25.01.2021.

        We are also of the opinion that in case of “commercial purpose” the “services” are not included in the definition of “consumer” under The Consumer Protection Act, 2019 and it has been excluded, therefore, the present compliant is not maintainable. It is also opined that if the complaint involving ‘commercial activity” of “services” as in the present complaint, is entertained, then it would amounts to evasion of court fee to be paid before the Civil Court and this will also amount to consume the time and energy of Consumer Commission by non-consumers instead of using that time & energy for the benefit of consumers.

 

11]     Taking into consideration the above discussion & findings, the present complaint being not maintainable is hereby returned to the complainant being disposed off. No order as to costs. The complainant shall, be at liberty, to approach an appropriate Authority/Court in the matter and the time spent herein may stand commuted/condoned for the purpose of limitation.

12]     The pending application(s) if any, stands disposed off accordingly.

13]     Office is directed to return the complaint to the complainant against proper receipt and after retaining its copy.

        Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced

10^th May, 2023                                                                            

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

(S.K.SARDANA)

MEMBER