CONSUMER DISPUTES REDRESSAL FORUM – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110 016

Case No.146/2010

1. SH. HARISH KAUSHIK

S/O SH. SHRI KANTH SHASTRI

R/O 103 A, KAMLA NAGAR,

DELHI-110007

2. SMT. VIBHA SHARMA

W/O SH. ADARSH KUMAR SHARMA

R/O C-123, PUNDRIK VIHAR,

PITAMPURA, DELHI-110034

…………. COMPLAINANTS                                                                                   

VS.

M/S OMAXE LIMITED

THROUGH ITS MANAGING DIRECTOR/DIRECTOR/AUTHORIZED OFFICER

REGISTERED OFFICE AT:

OMAXE HOUSE, 7 L.S.C., KALKAJI, NEW DELHI-110019

      …………..RESPONDENT

                                                                                             Date of Order:28.09.2016

O R D E R

A.S. Yadav – President

The case of complainants is that M/s Kashmiri Lal & Sons has booked a shop admeasuring 500 sq. ft. in the project of OP at Omaxe Plaza, Sonepat and complainants purchased the same from M/s Kashmiri Lal & Sons and applied for transfer of the same which was duly recognized by OP vide letter dated 14.04.08.  It was agreed that allotment of shop will be made within twelve months from the date of advance registration failing which the complainant shall be entitled to withdraw the advance registration amount with 9% interest.  Complainant was surprised to know that OP has not even started the project and in fact has not acquired the land for the aforesaid project.  Accordingly complainant sought refund of the amount however the same was not refunded.  It is stated that complainants are entitled for refund of the amount Rs.4,12,500/- from 17.05.07 with 18% interest and compensation of Rs.5 lakhs.

OP in reply took the plea that the value of the shop exceeds pecuniary jurisdiction of this Forum and also this Forum lacks the territorial jurisdiction.  Complainants are not consumers.  It is denied that no construction was effected.  It is denied that even the land was not acquired.  It is submitted that OP has constructed over and above second floor slab after obtaining necessary approvals.  It is stated that in fact complainants were bound to make the payment and complainants have not made the payment.  It is stated that OP is ready to give the shop to complainant subject to the making payment of the due amount.  It is further submitted that now when OP has made substantial investment in the said project based on the representation and initial investment by complainants, they cannot be allowed to withdraw from the project.  It is prayed that the complaint be dismissed.

We have heard Ld. Counsel for the parties and carefully perused the record.

The only point for consideration is whether complainants are consumers within the meaning of section 2(1)(d) of Consumer Protection Act.

The ‘consumer’ is defined in Section 2(1)(d) as under:-

 “(d) ‘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 party 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 resale or for 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 service for consideration paid or promised, or partly paid or party promised, or under any system of deferred payment, when such services are availed of with the approval of 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 purposes of earning his livelihood by means of self-employment.]”

Ld. Counsel for OP has referred to the case of Shikha Birla Vs DLF Retailers Developers 1 (2013) CPJ 665 (NC) where it was held that complainant is purchasing shop for commercial purposes.  There is no pleading nor any evidence to show that shop purchased is exclusively for purpose of her livelihood – complainant is not a consumer. 

On the other hand Ld. Counsel for complainant has referred to the case of Emaar MGF Land Limited Vs Karnail Singh & Ors. – First appeal No.342 of 2014 pronounced on 25.7.14, case of Mr. Vasant Shankar Toraskar Vs M/s Shreeji Builders – First appeal No.223 of 2006 pronounced on 23.4.12 and case of Sh. Pradeep Singh Pahal Vs M/s TDI Infrastructure Pvt. Ltd. – Complaint Case No.89/2011 decided on 11.09.14.

In fact complainants have nowhere pleaded in the complaint that the aforesaid shop was booked by them for earning of their livelihood. 

Keeping in view the above facts, complaints are not consumers.  Complaint is dismissed.

Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.

     (D.R. TAMTA)                     (RITU GARODIA)                        (A.S. YADAV)

        MEMBER                               MEMBER                                  PRESIDENT