DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 283/2022

QUORUM:   

Judgment By: Shri S.S. Malhotra (President)

JUDGMENT

By this judgment the Commission would dispose off the present complaint filed by the Complainant against OP w.r.t. deficiency in service for not refunding the amount paid for booking of commercial space (Corporate Suit) for himself.  

1. Brief facts as stated by the complainant in the complaint are that he is a cardiac surgeon in Max Hospital Patparganj in the capacity of Director and Head of Cardiac Surgery Department and is aggrieved of the inordinate delay in handing over the Corporate Suit which he had booked for earning his livelihood by way of self employment to carry on his own professional work as a practising doctor. The Complainant had booked a corporate suit in the project of OP namely Sikka Kapital Grand being developed by OP at Sector – 98 Noida @ Rs.7200/- per sq. ft. which was to be used by him for self employment towards earning his livelihood and it was to be used as Doctor’s chambers and total cost thereof was Rs.25,29,200/- measuring 314 sq. ft. and he had to pay 10% of the price on booking., 20% within 30 days thereafter, 40% was payable on near completion and 30% at the time of offer of possession and complainant till date has paid Rs.7,07,744/- to the OP and as per clause 26 of the agreement the same was to be handed over within 5 years from the date of start of casting of the shaft of the respective tower with further grace period of six months and although the period of five years has expired yet construction is still not complete nor the OP was in a position to hand over the possession of the corporate suit to the complainant even within next six months of grace period which expired on 04.11.2021 and all this amounts to deficiency in service on the part of OP and not only this, the construction is still not complete and OP on the other hand is demanding more money from the complainant which is in violation of the construction linked payment schedule and, on such demands, the complainant enquired from OP to mention and state the expected finish date but no satisfactory explanation was given by OP but it had always been assuring w.r.t. the completion of the construction of the commercial property and even in the email dated 03.02.2021 the OP promised that they will finish the project by December 2021 but the same is still incomplete and vide email dated 18.11.2021 the OP without completion of the work rather demanded 50% of the due amount immediately without giving a committed timeline within which period the possession would be offered.  However, instead of replies to various mails of the complainant, OP vide communication dated 20.05.2022 terminated the complainant’s agreement without giving prior notice of termination thereby mentioning that the balance amount will be refunded to the complainant only after the unit is resold or when the project would be completed which ever is later.  It is further submitted that complainant was not at fault in making payment at any stage.  It is further stated that since the project is still not complete, demand by the OP w.r.t. further payment was against the terms and conditions of the agreement and as such he has filed the present complaint against OP seeking directions to the OP to refund the amount of Rs.7,07,744/- with interest @ 10% p.a. from the date of payment along with Rs.33,91,200/- as damages w.r.t. cost of acquiring new property of similar size.
2. The OP was served and has filed reply taking preliminary objections that present complaint has been filed in most mischievous manner with malafide intention and therefore is not maintainable, the same is filed without disclosing any cause of action, complainant has not come to the Commission with clean hands and has concealed the material facts, the complaint is abuse of the due process of law, the complainant does not fall within the ambit of consumer under section 2(7) of the Consumer Protection Act as he was a potential investor and had booked the unit in question for commercial purpose, as the complainant himself has admitted that he is a cardiac surgeon in the Max Hospital in the capacity of Director and also is the Head of Cardiac Surgery Department and is earning livelihood there from, and all this shows that this property was not purchased for self employment and frame of mind of the complainant clarifies that he had booked the unit only for investment purpose and even otherwise the matter is not triable by this Commission as there is an arbitration clause under clause 91 of the Builder-Buyer Agreement therefore this Commission does not have the jurisdiction. It is further stated that there is no deficiency on the part of OP as it has shown all the endeavour to fulfil the obligation as per the Builder-Buyer Agreement and in any case as per clause 29 of the Allotment Agreement, the OP has specifically mentioned that it cannot be held responsible or liable for not performing any part of its obligation if such performance is prevented, late or hindered due to various force majure conditions as mentioned therein.
3. On merits, the booking of the unit by the complainant and payment of Rs.7,07,744/- is not denied however it is submitted that the delay has been on account of inevitable causes and reasons which were completely beyond the control and scope of OP and later due to pandemic  and all this made the situation worst and OP is still facing the after effect of the pandemic although it had been communicating the complainant by various emails. It is further submitted that as per clause 59, OP holds the right to cancel the allotment without any prior notice to the complainant and despite that, OP, as a goodwill gesture issued letter dated 13.05.2022 to the complainant thereby requesting him to clear all the dues of Rs.10,14,844/- within seven days and despite sending such letters, no payment was made by the complainant, and therefore the OP was left with no other option except to cancel the allotment and it cancelled the same vide letter dated 20.05.2022, therefore, there is no deficiency on the part of OP. It is further submitted that complainant himself is a cardiac surgeon in Max Hospital Patparganj in the capacity of Director and is also Head of Cardiac Surgery Department and is earning livelihood there from.  Therefore, he is not a consumer and contents of preliminary objections are reiterated and as far as damages are concerned it is submitted that in terms of the judgment of Hon’ble Supreme Court it was specifically held that if an allottee proves that he had suffered a loss or damage on account of having stayed in rental premises and has paid rent, then only such loss/ damages can be awarded and in the present case complainant has not presented any document on record to prove that he has suffered a loss and it is ultimately prayed that complaint of the complainant be dismissed. 
4. The Complainant has filed the Rejoinder and it is submitted that OP has admitted in his reply that construction of the project got delayed and therefore deficiency on the part of OP stands proved and OP had failed to adhere to the terms and conditions of the builder-buyer agreement and therefore compliant of the complainant is liable to succeed. It is denied that there is any malafide on the part of complainant or the complainant has stated false facts before the Commission.  It is also denied that complainant is a potential investor and has booked the unit for commercial purpose.  The judgment relied upon by the complainant, that complainant is not a consumer as he booked the premises for commercial purpose i.e. Laxmi Engineering Works V/s P.S.G. Industrial Institute 1995 SCC (3) 583, rather favours the complainant as complainant was to purchase the said premises for his own exclusive use and it is further stated that it is not the case, that complainant is not a doctor by profession and is already undertaking professional activity in his own premises owned by him. It is also not the case that he purchased yet another property for undertaking the same or different professional activity and it is reiterated that he booked the corporate suit for carrying out his professional activity by means of self employment.  As far as arbitration clause is concerned it is submitted that in terms of the judgment in Aftab Singh Vs MRMGF Land Ltd., the provision of section 8 of arbitration conciliation act, were held to be not applicable to the proceedings under CPA.  Rest of the contents of written statement are denied and it is prayed that complaint of the complainant be allowed.
5.  Complainant has filed its own evidence by way of affidavit and OP has filed evidence of Sh. Arun, AR.
6. Both the parties have filed their respective written arguments.
7. The Commission has heard the arguments and perused the record.

The Complainant booked the Corporate Suit, paid Rs. 7,07,744/- to the OP, the project was to be complete within 5 years from the date of booking with grace period of 6 months, project has not been completed even upto the date of filing of the present complaint, the delay in completing the project on account various exigencies including the pandemic, all such facts are admitted. The only issue is whether the complainant booked the property for commercial purpose to earn his livelihood by way of self employment or whether it was for a pure commercial purpose is to be decided. Admittedly, the complainant has been earning his livelihood  by way of employment as a Director and Head of the Cardiac Surgery Department in Max Hospital Patparganj.  Whether such a person who is a Director of a hospital and is heading the particular department of such a prestigious hospital would be requiring to have a separate corporate suit for the purpose of earning his livelihood by his own/ self employment is the core issue.  The Section 2(7) of the Consumer Protection Act read with explanation reads as under:

Section 2(7) "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.........

7) (ii) 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,—

1. 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. Apparently, a person who purchases the property for a commercial purpose is not a consumer within the definition of CPA-2019 however there is an exception to this provision which is clarified in the form of explanation and which explains that if a commercial property is purchased by a person for earning his livelihood by way of self employment then although the property is purchased for commercial purpose then he would be covered within the definition of a consumer. Keeping in view all these, now coming to the peculiar facts of the present case and the relevant issue that whether person /complainant who is the head of the Cardiac Surgery Department and is a Director in a big hospital had to earn his livelihood by way of self employment by having another corporate suit. The answer appears to be in negative.  Although the complainant has mentioned in the pleadings that he has purchased the corporate suit for the purpose of self employment, but it is settled law that mere mentioning of the word ‘self employment’ is not sufficient so as to bring one self within the definition of ‘consumer’ but the self employment has to be read in conjunction with next words and as a whole which is ‘self employment for earning his livelihood’ which is the material qualification so as to be got covered within the definition of ‘consumer’ which has to be adverted to. In the judgment in Laxmi Engineering Works V/s P.S.G. Industrial Institute 1995 SCC (3) 583 it was held that whether a person is purchasing the property for commercial purpose is a question of fact to be decided on the facts and circumstances of each case.  The only fact which is covered and which is relevant in this matter is that the complainant is already gainfully employed for the purpose of earning his livelihood and such person would not require another office to earn his livelihood by having a another corporate suit.  It may be case of earning more and more to the best of the capacity of any individual, but definitely is not for the purpose of ‘earning his livelihood’.   Therefore, this judgment in absence of any another fact does not help the complainant.  The present case is a case of look-like to be covered in the definition of consumer by writing mere words but without substantiating the facts, which may allow the complainant to fall within the definition of consumer.  Despite being gainfully employed and earning substantively being a Director of a hospital and head of the Cardiac Unit, it cannot be the case that he would be requiring another space to earn his livelihood. Further, it is not the case of the complainant at all that he is doing some charitable work in the Hospital or is not drawing any salary from that hospital for his livelihood.  The complaint has to be read and seen in totality and by mere using the word that the complainant would use the corporate suit for self employment is not sufficient. It may be the case of the complainant that he would be having a legitimate expectation of enhancing his earning and for that he may put even extra work apart from his daily activities but in such a case it cannot be said that he would be earning his livelihood from such corporate suit to be purchased for commercial purpose. 
9. Therefore the Commission is of the opinion that complainant has not been able to make out the case that he has purchased the property for the purpose of earning livelihood by self employment and as such he cannot be termed as a consumer within the definition of section 2(7) of the Consumer Protection Act.  Complaint case of the complainant is therefore dismissed.    

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room. 

Announced on 14.05.2024.