Delhi

New Delhi

CC/345/2016

Varun Pahwa - Complainant(s)

Versus

M/s DLF Retail Developers Ltd. - Opp.Party(s)

07 Nov 2017

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VI (DISTT. NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

                         

 

Case No.CC./345/2016                                                     Dated:

In the matter of:

Shri Varun Pahwa S/o Sh. Devender Pahwa

Proprietor of Devansh International,

R/o F-71, Naraina Vihar, New Delhi-110028        ……..COMPLAINANT

           

 

 

VERSUS

 

 

M/s DLF Retail Developers Ltd.

Having its registered office at:

Shopping Mall, 3^rd Floor, DLF City

Phase- I, Gurgaon ( Haryana)    

 

Also at:

 

M/s DLF Retail Developers Ltd.

DLF Centre, Sansad Mard,

New Delhi-110001

Through its director                                   ………. OPPOSITE PARTIES

 

 

ORDER

                          H.M. VYAS, MEMBER

By this order, we dispose off the application u/s 26 of the CP Act 1986 filed by the OP. Following issues have been raised with prayer to dismiss the complaint  during arguments.   

 

1. The complainant is not consumer. It is stated by OP that the complainant executed the term sheet on 02/03/2006 with OP intend to create a Tevency Agreement and agreed to pay Rs. 1165500/- to the OP prior to issuance of the completion certificate but the complainant failed to deposit.

The terms sheet & lease deed executed between complainant & OP for prvely commercial purposes and cannot claim to be a consumer. The commercial space in a Mall cum entertainment complex is for a rent of Rs. 1,41,750/- p.m. as per agreement. The lessee has the right to sublease. The terms & lease deed are out of preview of Consumer Protection Act 1986.

2. The complainant has already two shops in the said Brand/Trade name of SHE square at shop no. 49 & 50, Sahara Mall, MG road, Gurgaon and as such the complainant is not a consumer as the shop  has been opted for business propose.
3.  The complaint is bound by limitation as the complaint has been filed on 15/05/2016 after the limitation period of two years in our as the terms sheet was executed on 02/03/2006 and the last letter is dated 01/06/2013.
4. This Forum has no jurisdiction and the judgement decree if passed without jurisdiction is nullity.

 

The complainant has replied to the said application. It is stated by the complainant in Para 4 & 6 that the construction/Lease properties fall under the purview of the Consumer Protection Act 1986. Further the contentions of the OP that both parties intended to create a tenancy agreement in contrary to the  clause 12 of the terms sheet. As per the payment schedule the remaining amount  was payable at the time of offer of possession.

 

It is pointed out by complainant that the business under the Brand/ Trade name of SHE SQARE at S-49 & S-50 Sahara Mall is being run by Ms. Mala Pahwa as proprietor, who is relative of complainant. It is stated by complainant that he desired to take franchisee of “ SHE SQUARE” and intended to start from the demised premises as he is doing the business from a rented premise at Karol Bagh which is a retail footwear shop. The complainant has paid handsome amount to OP & the OP in the garb of vague & unsustainable grounds attempting to further delay the proceeding by moving such application to skip its liability of handing over possession.

The OP has argued that the dispute is between lessor & lessee and does not fall within preview of the Consumer Protection Act. Reliance has been had on the judgement of Hon’ble National Commission in the case of Laxmiben Laxmi Chand Kani Shah & Others V/s Sakerben Kanji Chandan and others Original Petition no. 39/1991. In said judgement it was held that the failure on the part of Landlord to carry out obligatins under the contract with respect of lease of innmovable property and default or omission under the contract would not fall  within the scope of Consumer Protection Act since, these is no hiring of services for a consideration so as to entitle the complainant to claim the status as consumer. The OP has further alleged that the complaint is barred by limitation. The complainant filed complaint on 15/05/2016 and the term sheet was executed in 2006. Shelter of clause 20 of the Tems Sheet is taken which speaks of Lock in period and the lessee agreed not to terminate the lease and vacate the demised premises until expiry of three years from date of execution of lease deed.

The complainant has countered the argument by pointing out that the said judgement of the Hon’ble National Commission is prior to the amendment in Consumer Protection Act i.e. 18/06/1993. Vide said amendment the “Housing construction” was included in Section 2(1) (0) of the Consumer protection Act, 1986 within the “definition” of service. The complainant has relied upon the Apex Court Judgement of 1994 in the case of Lucknow Development Authority Vs. M.K. Gupta wherein it was held that the entire propose of widening the definition is to include in it not only the day to day goods by common man but even to such activities which are otherwise not commercial but profession or service oriented in nature. A person who applies for allotment of a building site or for a flat constructed by the development authority and enters into an agreement with a builder or a contractor is a potential user & nature of transaction is covered in the expression service of any description. It is also argued by the complainant that the Term sheet  is binding  till execution and registration of the lease deed and the lease deed has not been registered. On the issue of jurisdiction of this Forum the complainant states that a number of documents have been placed on records including the receipt dated 08/02/2006 issued by OP office at Sansad Marg which falls under the jurisdiction  of this Forum.

We have given due consideration to the material placed on record before us and the arguments on application addressed by both parties with relevant provisions of law. We are of the view that the complainant is a Consumer and that this Forum has the jurisdiction as the amount paid by complaint to the OP office at Sansad Marg against receipt. The cause of action is of continuous nature, so the objection of limitation raised by OP is without merit.

As regard OP’s allegation that complaint already has two shops at Sahara Mall MG Road & complaint is not consumer does not weigh sound as the complainant has categorically stated that the said two shops are  of the same brand i.e. SHE SQUARE & not owned by him.  From above discussions it is clear that the construction is covered under the purview of service after the amendment in the Act In 1993. The shop in complaint is opted by complainant for himself to open the brand name & trade name SHE SQUARE unit. In these facts & circumstances as placed by the parties, the application of the OP under section  26 of the Consumer Protection Act 1986 is without ment & is dismissed  with no orders to cost.

Copy of order be sent to both the parties.

List the matter on 27/11/2017 for rejoinder by the complainant.

 

                                                           (S K SARVARIA)

                                                              PRESIDENT

 

(NIPUR CHANDNA)                                                          (H M VYAS)

         MEMBER                                                                       MEMBER