Delhi

StateCommission

CC/313/1999

SUNIL KANT RAHEJA - Complainant(s)

Versus

M/S PURE EARTH INFR. LTD. - Opp.Party(s)

22 Apr 2016

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                             Date of Decision: 22.04.2016

Complaint Case No. 313/1999

In the matter of:

Sh. Sunil Kant Raheja

S/o Sh. A.P.Raheja

5/41, Punjabi Bagh,

New Delhi                                           .........Complainant

 

Versus

 

M/s Pure Earth Infrastructure Ltd.

VI, Floor

Vikrant Tower

Rajendra Place

New Delhi                                                    .......Opposite Party

                                                                  

CORAM

 

N P KAUSHIK                         -                  Member (Judicial)

 

1.       Whether reporters of local newspaper be allowed to see the judgment?           Yes

2.       To be referred to the reporter or not?                                                       Yes

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

Judgement

1.      Complainant Sh. Sunil has filed the present complaint alleging deficiency in service on the part of M/s Pure Earth Infrastructure Pvt. Ltd. (in short the OP). Facts of the complaint are not in dispute. In brief, the complainant deposited an amount of Rs. 7,18,400/- with the OP during the period from 18.09.1996 to 10.09.1997 by way of cheques. Complainant had booked a space for factory project with the OP measuring 400 sq. ft. Complainant contacted the officials of the OP but did not get any satisfactory reply. He received a letter dated 25.05.1999 vide which he was informed that the construction was likely to be commenced in the last quarter of 1999. Finally complainant sent a legal notice dated 29.05.1999 calling upon the OP to refund the money deposited by him alongwith interest @ 21% p.a. No reply was given.
2.      Present complaint was adjourned sine die by this Commission vide orders dated 10.05.2005 as the OP had approached the Hon’ble High Court for the purpose of restructuring of the scheme of the construction. Present complaint was further revived on the request of the complainant.
3.      Next contention of the complainant is that he received a demand letter dated 23.03.2009 from the OP apprising him that he was allotted a unit in Plaza IV and demanded an amount of Rs. 4,40,750/-. Various visits of the complainant to the office of the OP thereafter also proved futile. Another legal notice dated 31.07.2009 was sent. Complainant submitted that the OP gave a vague and evasive reply. Grievance of the complainant is that he had not been allotted the space of the factory project and the OP indulged in ‘unfair trade practice’. Complainant prayed for refund of the amount deposited by him alongwith interest @ 24% p.a. besides, compensation and litigation expenses.
4.      Defence raised by the OP in its written version is that DCM Ltd., a Company incorporated under the Companies Act 1882 was asked by Govt. of India to shift its textile factory, pursuant to Master Plan of Delhi 1962. After obtaining the development permission from DDA a layout plan for setting up a flatted factory complex by the name of DCM Techno Plaza, Bara Hindu Rao, Delhi was submitted. DCM Ltd. was closed in 1989 only. Due to various problems, constructions work on the first phase of DCM Techno Plaza Bara Hindu Rao Delhi commenced only on 06.12.1996. It stopped in June 1997. Construction of the project again started in September 2005. The work has not come to completion so far.
5.      Parties filed their affidavits towards evidence. Written arguments too have been placed on record.
6.      Arguments have been addressed at length by the counsel for the complainant Sh. Arun Gupta Advocate and the counsel for the OP Sh. Gaurav Mitra Advocate alongwith Sh. Deepak Gupta Advocate.
7.      OP has raised an objection that the complaint is not maintainable as the complainant does not fall within the ambit of the expression ‘consumer’ as defined under Section 2(1)(d) of Consumer Protection Act (in short the Act). Ld. Counsel for the OP has taken this Commission through the pleadings of the complainant and the affidavit filed towards evidence. Submission of the OP is that the complainant pleaded that he booked a space for factory project. He applied for allotment of the said space only for commercial purposes. Ld. Counsel for the OP has referred to the letter dated 29.05.1999 written by the complainant to the OP wherein in its Para 2, again the complainant stated that he had applied for space in a flatted factory. Similar is the representation in letters dated 04.06.2009 and 31.07.2009 written by the complainant to the OP.
8.      Before proceeding further let us have a look at the definition of ‘consumer’ as provided under Section 2(1)(d) of the Act. The same is reproduced below:

“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.           ³[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 ³[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 ¹[but does not include a person who avails of such services for any commercial purpose];
5. [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;]

9.      In support of his objection, OP has relied upon the following cases:

1. Inder Nath Mehra & Anr. Vs. M/s Pure Earth Infrastructure Ltd. Complaint Case No. 301 of 2013 decided by the Hon’ble National Commission vide order dated 15.05.2015.
2. EMAAR MGF Land Ltd. Vs. Banga Constructions Pvt. Ltd. MANU/CF/0174/2015.
3. Singhal Finstock Pvt. Ltd. Vs. Jaypee Infratech Ltd. MANU/CF/0573/2012.
4. Smt. Shikha Birla Vs. DLF Retailers Developers Ltd. MANU/CF/0087/2013.
5. Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 Supreme Court Cases 583.

 

On the contrary, complainant has relied upon the following cases:

i)     Beatty Tony Vs. Prestige Estate Projects Pvt. Ltd. III (2015) CPJ 63 (NC).

ii)     Kushal K. Rana Vs. DLF Commercial Complexes Ltd. MANU/CF/0811/2014.

iii)    Sanjay Kumar Joshi Vs. Municipal Board MANU/SC/1023/2014.

 

10. Before proceedings further, it may be mentioned here that the complainant has not averred in his complaint that the flatted factory got booked by him was required for the purpose of earning his livelihood by means of self employment. No such averment has been made by the complainant in his affidavit filed towards evidence.
11.  With the aforesaid spectrum of facts, I am confronted with the question as to whether the complainant is a ‘consumer’ and the complaint is not maintainable in the eyes of law.
12.  In the case of the Inder Nath Mehra (Supra) the Hon’ble National Commission dealt with the booking of the commercial space in the same project at Bara Hindu Rao, Delhi in which the complainant as in the present case had his booking. In the said case complainants were engaged in the business of jewellery and had booked the commercial unit with a view to set up a jewellery showroom. They had alleged that they booked the space with the intention to meet the growing needs of the family by expanding the business and also to enable the complainant No. 2 in that case to earn his livelihood by means of self employment. Hon’ble National Commission observed that the aforesaid bald averment in the complaint by itself was not sufficient to conclude that the complainants were ‘consumers’, in view of the expression Section 2(1)(d) of the Act. It was further observed that the complainants were required to show that at least one of them was not gainfully employed to earn his livelihood. Complainants in the said case were not held ‘consumers’.  In the case of EMAAR MGF Land Ltd. (Supra) the Hon’ble National Commission had the occasion to dealt with the commercial complex under the Central Plaza at Mohali Punjab. Four units on different floors of the complex were held to have been booked for commercial purposes. The complaint was thus dismissed. In the case of the Singhal Finstock Pvt. Ltd. (Supra) the Hon’ble National Commission relying upon the case of the Laxmi Engineering Works (Supra) held that the premises were intended to be acquired for commercial purposes. In the case of the Shikha Birla (Supra) the ambit of the expression ‘commercial purpose’ came up for consideration. The shop purchased in the said case was held to be booked for commercial purpose only. The Hon’ble Supreme Court in the case of the Laxmi Engineering Works (Supra) dealt at length the scope of the expression commercial purpose. Para 21 is relevant and the same is reproduced below:

21. We must, therefore, hold that:

(i) The explanation added by the Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18-6-1993 is clarificatory in nature and applies to all pending proceedings.

(ii) Whether the purpose for which a person has bought goods is a “commercial purpose” within the meaning of the definition of expression ‘consumer’ in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case.

(iii) A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood, by means of self-employment is within the definition of the expression ‘consumer’.

 

13. It would be relevant to mention here that the Apex Court held that the amendment carried out to the Act on 18.06.1993 was clarificatory in nature and applied to all pending proceedings. The plea of the complainant that the amendment dated 15.01.2003 cannot be applied retrospectively, does not help the complainant as the same too is clarify in nature. The case of Kushal K. Rana (Supra) referred to by the complainant has been noticed by the Hon’ble National Commission in the case of the Inder Nath Mehra (Supra), discussed above. The facts of the case of Kushal K. Rana are quite particular and the decision is not applicable to the case in hand. The case of the Sanjay Kumar Joshi (Supra) relied upon by the complainant relates to the proposition that the commercial transaction done for earning livelihood does not oust a person from the definition of the ‘consumer’. There is no dispute with the legal proposition putforth by the complainant. In the present case a careful perusal of the pleadings of the complainant shows that the complainant did not aver that the flatted factory was intended to be purchased by him exclusively for the purpose of earning his livelihood by means of self employment. The use of the word ‘factory’ in itself implies that the complainant was likely to employ certain other workers there. In the absence of a plea to the effect that the complainant wanted to have self employment and in view of the ratio given by the Apex Court in the case of Laxmi Engineering Works (Supra), I am of the considered opinion that the present complainant does not come within the ambit of the expression ‘consumer’ as provided under Section 2(1)(d) of the Act. Complaint is, therefore, dismissed being not maintainable. Complainant is however at liberty to move an appropriate court.
14. Copy of the orders be made available to the parties free of costs as per law and thereafter the file be consigned to Records.

 

(N P KAUSHIK)

MEMBER (JUDICIAL)

 

6.