Delhi

North East

CC/69/2018

Mrs. Meenu Singhal - Complainant(s)

Versus

M/S Nitishree Buildcon Pvt. Ltd. - Opp.Party(s)

30 Aug 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 69/18

 

In the matter of:

 

	Mrs. Meenu Singhal W/o Mr. Vijender Singhal Mr. Avichal Arya S/o Mr. Vijender Singhal Both residing at same address R/o RZ-157, Raghu Nagar, Pankha Road, Opposite Janak Cinema, Delhi-110045.	Complainants
	Versus
	M/s Nitishree Buildcon Pvt Ltd B-10, West Jyoti Nagar Shahdara, Delhi-110032. Through its Director Mr. M.S. Aggarwal   Also at: M/s Nitishree Buildcon Pvt Ltd 6th Floor, Ocean Heights Plot No. K-4, Sector-18 Noida (U.P.)	Opposite Party

 

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION:

10.04.2018 30.08.2019 30.08.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Succinctly put, facts giving rise to the present complaint are that in response to OPs invitation in 2010 for inviting bookings in its new commercial complex project MSX Mall located at Greater Noida with Buy Back Option to the buyers, the complainants booked a unit shop number 272 of super area 110sq.ft. (hereinafter referred to as the shop) at the initial Basic Sale Price (BSP) of Rs. 6,09,950/- on 03.11.2010 on advance payment of Rs. 1,00,000/- paid vide cheque no. 266989 drawn on Corporation Bank. Thereafter, complainants made payment of Rs. 3,29,453/- on 29.11.2010 vide cheque no. 266992 to OP and Rs. 7,499/- in cash to OP on 06.12.2010 thereby totaling a sum of Rs. 4,36,952/- paid to the OP by end of December 2010. Accordingly, OP issued allotment letter dated 05.12.2010 to the complainants where the OP allotted the said shop at the revised/reduced rate of Rs. 4,59,950/- i.e. @ of Rs. 4181/- per sq.ft. of same area 110.00 sq.ft. In the addendum dated 07.12.2010 to the said allotment letter, vide clause no. 5, the OP gave a buy back option to the complainants that in case at the time of offer of possession, the complainants are unwilling to take possession of the said shop, OP would buy back the said unit @ of Rs. 8550/- per sq.ft. Accordingly, the complainants opted for the said option but the OP withheld the said shop as well as the amount deposited by the complainants towards the purchase of the same despite the buy back option given to the complainants in the addendum as well as offer letter dated 23.01.2012 for updating the complainants that the said option is available as on dated 05.12.2013. The complainants have further submitted that despite express contract, complainants have unfairly misappropriated 95% of the BSP of the said shop without any justification and failed to handover possession contrary to the express agreement under clause 3(i) of allotment letter to handover possession within 3 years of date of allotment letter dated 05.12.2010 i.e. by 05.12.2013. The complainants wrote letters dated 09.05.2014 and 06.01.2017 to OP requesting for availing buy back option however no response came forth from OP. Lastly, the complainants were constrained to issue legal notice dated 24.10.2017 to OP through counsel demanding OP to buy back the said shop alongwith 24% interest thereon however the said notice too went unheeded to. As a last resort the complainants filed the present complaint against the OP praying for issuance of directions against the OP to refund the amount of Rs. 9,40,500/- to the complainants with simple interest @ 18% thereon w.e.f. December 2013 totaling Rs. 16,17,660/- alongwith compensation of Rs. 2,50,000/- on account of mental tension and harassment and cost of litigation.

Complainant has attached copy of price list, copy of payment proof made to OP towards the said shop, copy of allotment letter, copy of addendum, copy of correspondence between the parties and copy of legal notice with postal receipts.

2. Despite notice on OP served and copy of complaint handed over on 25.05.2018, none appeared on behalf of OP thereafter and no defence came forth due to which its right was close and was accordingly proceeded against ex-parte vide order dated 29.04.2019.
3. Complainants filed ex-parte evidence and written arguments in reiteration of their grievance of the OPs.
4. At the stage of oral arguments, notwithstanding the admission of the complaint, a specific query was put to the complainants’ counsel to satisfy this Forum on the maintainability of the complaint as a consumer dispute and not a commercial one since it is settled law that the question in which law point is involved can be decided at any stage of the proceedings of the case as was also observed by Hon'ble National Commission in Koshy Varghese Vs HDFC Bank Ltd III (2017) CPJ 52 (NC). The counsel for the complainants submitted that the complainant No.1’s husband is in jewellery business and the complainants being mother and son qua each other and wife and son to Mr. Vijender Singhal wanted to purchase the said shop to enhance the business prospects and buy the said shop since the shop in which the complainant’s husband was running his jewellery business was taken on rent and the said shop was proposed to be purchased so that complainant No.2 can also join the family business.
5. We have heard the arguments addressed by the counsel of the complainants and have perused the documents on record.

On scrutiny of the allotment letter, it is evident that the said shop was proposed to be built in MSX Mall site of Greater Noida, U.P. by OP which was a multi storeyed multiplex commercial complex admeasuring 17457 sq. mts. The entire allotment letter refers to the said shop as commercial space and project also commercial in nature. Nowhere in the entire pleadings have the complainants mentioned or led any evidence that the said shop was to be used by them for the purpose of livelihood by means of self employment. On the contrary, the counsel admitted that the same was proposed to be purchased for family jewellery business purpose. The case of a person who has purchased a commercial shop / space for the purpose of earning livelihood by means of self employment is entirely different. He will be a consumer.

Before disposing of the present complaint, it is imperative to advert to Section 2 (d) of Consumer Protection Act post amendment w.e.f. 15.03.2003.

The word consumer is the fulcrum of the Consumer Protection Act, the Act hinging on twin concepts of defect in goods or deficiency in service, a consumer is one who buys any goods or hires any service. The term consumer is defined in Section 2 (1)(d) of the Act meaning any person who

1. buys and 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 that 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 purpose of earning his livelihood by means of self employment. (emphasis supplied)

 

The term ‘consumer’ has, thus, been defined to mean, a person who                 is-

1. a buyer, or
2. with the approval of the buyer, the user of the goods in question, or    
3. a hirer or person otherwise availing, or
4. with the approval of such aforesaid persons, the beneficiary, of the service(s) in question

 

with the condition super added that such buying of the goods or hiring or availing of any such service, is for a consideration, -

 

1. paid, or
2. promised, or
3. partly paid or promised, or
4. covered by any system of deferred payment

 

On bare reading of the above, it is clear that consumer is a person who buys goods or hires/avails of services for consideration but excludes a person who does the same for commercial purpose.

6. The word “commercial purpose” has been defined by Hon'ble National Commission in Kores (India) Ltd Vs Samir Purkayastha (1996) 2 CPJ 71 (NC) as having a vide connotation and the determination of purpose in a consumer case should be done by taking into account a number of factors viz. the scope of business, the investment involved, the motive and intention behind the business, whether it is in the nature of earning a livelihood or earning substantial profit, currently as well as in future profits. Therefore commercial purpose is a question of fact to be decided on basis of purpose to which the goods bought are put to use and if the same is not for self employment, the person purchasing it is ousted from category of consumer especially after the amendment w.e.f. 15.03.2003 to the Act. “Commercial purpose” would therefore cover an undertaking whose object is to make profit out of it. ‘Self employment’ has been explained by Hon'ble Supreme Court in Cheema Engineering Services Vs Rajan Singh (1997) 1 SCC 131 as altogether a different concept with connotation that he (purchaser) alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. Therefore, the purpose to which the goods bought are put to use becomes material.

The Hon'ble National Commission in Hajarimal Moonat Vs. Kumar Iron Works 1997 (1) CPR 18 held that to arrive at the conclusion whether a purpose for a commercial purpose, it has to be decided whether the purchase of the goods by the complainant was intended for commercial purpose for carrying on small business for the purpose of eking out his livelihood by way of self employment. The Hon'ble National Commission in B.H. Kerudi Vs M.D.J. Mithra & Co. Ltd 2002 (III) CPJ 299 (NC) held that where the equipment purchase by the complainant had a direct nexus with his commercial purpose, then purchase of such equipment is for commercial purpose and complainant not being a consumer cannot maintain complaint before Redressal Forum under the Consumer Protection Act. The Hon'ble National Commission in UP State Road Transport Corporation Vs Non-Destructive Test Appliances Pvt Ltd. Calcutta 2002 (3) CPJ 263 and in Prestige Stones Vs. Sharma Industries 1991 (1) CPR 217 (NC) held that defect in an industrial equipment / machine purchase for use of industry had not been purchased for earning livelihood and was acquired for commercial purpose in view of which no consumer dispute was involved. Further, the Hon'ble National Commission in Jay Kay Puri Engineering Vs M. Breweries and Distilleries Ltd. 1996 (1) CPR 102 (NC) and in Meera Industries Vs Modern Construction RP no. 1765/2007 decided on 22.05.2009 held that by virtue of amendment to Section 2(1)(d)(ii) of the Consumer Protection Act effected in 2003 w.e.f. 15.03.2003, a person who avails of services for commercial purpose would no longer be within the ambit of “consumer” under CPA even for the purpose of services during the warranty period to be rendered by manufacturer or supplier during the said period for the maintenance of machine purchased. The Hon'ble Apex Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute II (1995) CPJ 1 (SC) held that if goods (here in this case, its space) are purchased for a considerable amount/size, it should be assumed to be for commercial purpose. The Hon'ble National Commission in M/s R.K. Handicraft Vs Parmanand Ganda Singh in RP No. 787/13 decided on 28.01.2015 observed in a case where the complainant running a sole proprietorship concerns had purchased a generator which turned out to be defective that the complainant has to prove that the generator was purchased for the exclusive purpose for earning livelihood through self employment but contrarily it was found that the firm was functioning even before the purchase of the generator and held that hence it cannot be said that the generator set was purchased exclusively for the purpose of earning livelihood by way of self employment. The Hon'ble National Commission in Abhinav Publishing India Pvt Ltd. Vs Graphics and Prints 1995 (2) CPJ 117 (NC) after observing the value of equipment purchased, perusal of profit and loss account of the company and its fixed assets and considering the monthly rental and staff salary held that these facts clearly indicated that the contention that the equipment was used exclusively for earning livelihood through self employment was totally untenable and consequently dismissed the complaint. The Hon'ble National Commission in M/s Richa and Company Vs. DLF Universal Ltd IV (2012) CPJ 597 (NC) observed that purchase of commercial space was for commercial purposes and held complainant not to be consumer. The Hon'ble National Commission in Manu Talwar Vs. BPTP Ltd IV (2015) CPJ 396 (NC) held in a dispute arising out of commercial space agreement entered into between parties, relying upon catena of judgment passed by itself in Monstera Estate Pvt Ltd Vs. Ardee Infrastructure Pvt Ltd IV (2010) CPJ 299 (NC), Shikha Birla Vs. DLF Retailers Developers Ltd I (2013) CPJ 665 (NC) upheld by Hon'ble Supreme Court in Civil Appeal No. 5458/2013, Satish Kumar Gajanand Gupta Vs. M/s Srushti Sangam Enterprises (India) Ltd III (2012) CPJ 264 (NC) upheld by Hon'ble Supreme Court in Civil Appeal No. 6229/2012, M/s Purusharth Associates Pvt Ltd Vs. M/s Uppal Housing Ltd Plaza III (2012) CPJ 500 (NC) and Subhash Motilal Shah (HUF) Vs. Malegaon Merchants Co-op. Bank Ltd I (2013) CPJ 34A (NC) that complainants failed to prove that they are consumers as defined under Section 2 (1)(d) of CPA and dismissed the complaint. The Hon'ble National Commission in Pardeep Singh Pahal Vs. TDI Infrastructure Pvt Ltd I (2016) CPJ 219 (NC) held in a similar case of non allotment of shop that since the complainant has not pleaded in the complaint that he purchased the said commercial unit to be used by him exclusively for the purpose of earning his livelihood by means of self employment, dismissed the said appeal as falling outside the purview of definition of consumer under Section 2 (1)(d) of CPA, placing reliance on judgment of Hon'ble Supreme Court in Laxmi and Cheema (Supra). The said judgment was reiterated by the Hon'ble National Commission in its subsequent judgment of Shweta Sharma Vs. BPTP Ltd regarding booking of shop in which reference made to earlier judgment of Hon'ble National Commission in M/s JCB India Ltd Vs. M/s Chandan Traders and Ors in RP No. 4044/2009 in which judgment the Hon'ble National Commission clearly opined thatmere averment of earning livelihood is not sufficient to be presumed to be true and that concerned person is supposed to prove that said article was to be used by him or her for earning livelihood. When these facts are missing, it cannot be presumed that the shop was booked for earning livelihood.

7. Having exhaustively dealt with the legal discourse/ discussion on the settled proposition of law, coupled with the fact that the complainants have nowhere stated as to why they purchased the said shop nor specified or mentioned the purpose thereof, we are unable to attach any significance to the argument of the complainants of having purchased the same for family business to construe it as a means of livelihood, much less self employment. Complainants nowhere stated what they are doing and what business is to be run in this shop unless this Forum put a specific query at the stage of oral arguments. Complainants further did not state any other source of income or specific business to be run through the said shop. The plea raised by the counsel of complainants is palliative and does not delve deep into the roots of malady. The fact that the said shop booked in a commercial project of OP is writ large on the face of documentary proof. The shop was booked not to earn livelihood but to augment the family income of the complainants. Therefore the complainants are not covered within the definition of consumer and the complaint is therefore not maintainable and accordingly this Forum therefore cannot adjudicate upon this dispute on merits because judgment without jurisdiction is a nullity in law as opined by Hon'ble National Commission in RP No. 317/1994 in Huda Vs. Vipin Kohli decided on 19.01.1995. Resultantly, the complaint fails and is hereby dismissed. However, it is made clear that since we have not gone into the merits of the dispute between the parties, therefore this order will not come in the way of complainant as there lies nor bar for the complainants in the event of seeking remedy before any other appropriate Forum / Court as per law. Further they may seek help from law laid down in celebrated authority in Laxmi Engg. (Supra) insofar as the question of limitation is concerned. No order as to costs.          
8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9. File be consigned to record room.
10.  Announced on 30.08.2019 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member