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.831/2005
- SHRI HARBHAJAN SINGH
S/O SHRI HARBANS SINGH
- SHRI JAGJIT SINGH
S/O SHRI HARBHAJAN SINGH
BOTH R/O A-2/39-40, SECTOR 11,
ROHINI, DELHI-110085
…………. COMPLAINANTS
Vs.
M/S VARDHMAN PROPERTIES LTD.
THROUGH ITS MANAGING DIRECTOR
PRINCIPAL OFFICER/AUTHORISED SIGNATORY,
VARDHMAN TRADE CENTRE,
G-9 DDA BUILDING, NEHRU PLACE,
NEW DELHI-110019
…………..RESPONDENT
Date of Order: 02.06.2016
O R D E R
A.S. Yadav - President
Complainants booked a unit in the commercial complex of OP and initially paid a sum of Rs.1,32,404/- on 12.02.1998. Thereafter complainants paid Rs.1,32,404/- on 15.03.1998, Rs.1,32,404/- on 17.04.1998, Rs.1,32,404/- on 09.07.1998 and Rs.66,202/- on 21.09.1998. In all complainants paid a sum of Rs.5,95,818/-.
The case of complainants is that they have repeatedly visited the office of OP and OP have given assurance of handing over the possession however, possession has not been handed over. In the last week of October 2004 when complainant No.1 visited office of OP, officials of OP told that they have already completed the project and handed over the possession to the exclusion of complainants. It is stated that there is deficiency in service on the part of OPs. Complainants sought refund of the amount as well as compensation of Rs.2 lakhs.
OPs in the reply took the plea that there was no deficiency in service on the part of OPs. It is the complainants, who have committed the default. It is stated that the total cost of the unit was Rs.13,24,040/- out of which complainants have paid only a sum of Rs.5,95,818/-.
It is further stated that despite repeated remainders of OP dated 26.2.98, 01.4.98, 30.4.98, 27.5.98, 30.6.98, 03.8.98, 01.9.98, 26.9.98, 28.10.98, 30.12.98, 28.1.99, 03.3.99 and the letter dated 30.3.99 by which complainants were asked to make the balance payment due of Rs.7,98,215/-, complainants did not come forward to make the balance payment. OP vide letter dated 04.6.99 and 29.6.99 intimated complainants about the cancellation of their unit. Even after that OP vide letter dated 07.8.99 called upon complainants to make the balance payment with interest and still accept the possession of their unit. When complainants did not respond to the said letters, ultimately OP vide their letters dated 01.9.99, 30.9.99, 29.10.99, 03.3.2000, 28.3.2000, 09.5.2000 and 31.5.2000 repeatedly called upon complainants to surrender the original documents as the allotment in their favour stood cancelled and accept refund of payment, if due to them, after deduction of 25% of the cost of the flat as earnest money forfeiture on account of complainants having failed to maintain the schedule or payments. The last payment made by complainants admittedly on 21.9.98 and the letter of cancellation addressed by OPs to complaint on 04.6.99, 29.6.99 upto 31.5.2000 whereas the present complaint filed in February 2005 which is hopelessly barred by limitation.
We have heard Ld. Counsel for the parties and carefully perused the record.
In fact it is submitted by Ld. Counsel for OPs that complainants are not consumers as they have booked a commercial space. It is nowhere averred that the aforesaid commercial space was booked by complainants for earning their livelihood. On the contrarym it is submitted by Ld. Counsel for complainants that in fact complainants are consumers and moreover, OPs in para 9 of the written statement have stated that complainants are entitled only for balance amount after forfeiture of 25% of the cost of unit as earnest money.
It is not in dispute that a commercial unit has been booked by complainants. Ld. Counsel for OP has referred to case of M/s Vardhman Properties Ltd. Vs Som Dutt Sharma – Revision Petition No3754/2014 decided on 09.12.2014 - to show that complainants are not consumers. In that case also a commercial space was booked by complainants and it was held by the Hon’ble National Commission that complainants are not consumers.
The ‘consumer’ is defined in Section 2(1)(d) as under:-
“(d) ‘consumer’, means any person who –
- 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
- 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.]”
So it is evident from the definition of ‘consumer’ that any person who purchases such goods for resale or for any commercial purposes or who hires such services for any commercial purposes is not a consumer within the meaning of section 2(1)(d) of the Act.
It is also to refer to case of U.P. State Industrial Development Corporation(UPSIDC) & Anr. Vs Shyama Rani 1(2013) CPJ 738 (NC) where respondent was allotted industrial plot and it was nowhere pleaded that allotment of plot was for earning her livelihood by means of self employment and in such circumstances, complainant does not fall within the purview of ‘consumer’ under section 2(1)(d)of the Consumer Protection Act 1986.
Here it is relevant to refer to 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 – complaint not a consumer. In case - Monstera Estate Pvt. Ltd. Vs Ardee Infrastructure Pvt. Ltd. IV(2010) CPJ 209(NC), it was held that complainant was a private Ltd. company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed not executed. Deficiency in service alleged. It was held that even if private Ltd. company was treated as a ‘person’, purchase of space could not be for earning its livelihood. Purchase of space was for commercial purpose.
Complainants have booked commercial space. Complainants are not ‘consumers’ within the meaning in sec. 2(1)(d) of the Consumer Protection Act 1986.
Moreover, it is significant to note that OP has sent several letters to complainants for making the payment through registered post and these letters were duly received by complainants. Ultimately vide letter dated 04.6.99 the booking was cancelled and it was stated that as per the terms and conditions of booking, 25% of total cost stands forfeited on account of non-payment of instalments. Thereafter the letter dated 29.6.99 was also sent through registered AD and again it was brought to the notice of complainants that their booking has been cancelled. So cause of action, for all practical purposes, arose in June 1999 whereas the complaint has been filed on 22.03.2005, the same hopelessly barred by limitation.
In view of the above facts, the 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) (A.S. YADAV)
MEMBER PRESIDENT
