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.875/2007
AND
Case No.876/2007
SH. VIJAY KUMAR SUMAN
S/O SH. P.D. SUMAN
118A, PKT B-3, LAWRENCE ROAD,
NEW DELHI-110035
…………. COMPLAINANT
(THROUGH LEGAL HEIRS)
Vs.
M/S VARDHMAN PROPERTIES LTD.,
G-9 VARDHMAN TRADE CENTRE,
NEHRU PLACE,
NEW DELHI-110019
…………..RESPONDENT
Date of Order:17.12.2015
O R D E R
A.S. Yadav – President
By this order we shall dispose of the aforesaid complaints as the common question of fact and law is involved. For the sake of reference, facts of case no.875/2007 are detailed.
In brief the case of the complainant is that complainant vide application bearing No.9219 dated 22.03.05 had applied for allotment of a commercial space and paid a sum of Rs.88,179/-.
It is further stated that complainant received letter dated 02.05.2005 on 29.07.2005 whereby complainant was asked to deposit an amount of Rs.88,179/-. Complainant had an accident and due to fracture of his left foot he was not able to deposit the amount hence requested OP by way of letter as well as telegram dated 29.7.05 for extending the time by three months for depositing the amount. And thereafter sent letters in this regard on 26.07.05, 05.09.05 and 09.07.07. Complainant made number of visits to office of OP however OP refused to accept the money and give possession of the booked commercial space. It is stated that the cause of action arose in 2005 when an ad was given by OP then on 22.3.05, 25.3.05, 02.5.05, 26.7.05, 29.7.05, 05.9.05, 19.2.07 and same is still continuing.
It is prayed that OP be directed to accept the balance payment and deliver possession of the commercial space.
OP in the reply has not disputed that the complainant booked the commercial space. OP took the preliminary objection that the complaint is time barred as the allotment was cancelled on 26.7.05 and the complaint was filed beyond the period of two years.
It is further stated that complainant is not a consumer as he has booked a commercial space. Initially 10% booking amount of Rs.88,179/- was paid. The remaining payment of the said unit was to be paid in nine monthly instalments of 10% each plus allied charge at the time of possession. OP vide letter dated 02.05.05 asked the complainant to pay the next instalment which was due and the same was not paid despite receiving the letter dated 02.5.05. Complainant was further asked to pay the amount vide letter dated 27.05.05 and demanded from the complainant a sum of Rs.176358/- by 10.06.2005. However the said amount remained unpaid on account of the failure of the complainant. OP issued another reminder dated 27.6.05 and demanded a sum of Rs.264537/- by 10.7.2005. However as the payment was due and the complaint had not paid up to date instalments inspite of various reminders, OP by their letter dated 26.7.2005 informed the complainant of the cancellation of his booking.
It is further stated that as the defaults on the part of complainant in making the payments, OP was constrained to cancel the allotment and informed the complainant that in case any payment beyond 25% of the cost of the unit had been made by the complainant, the complainant after forfeiture of 25% of the cost of the unit as per the terms of the agreement could collect the refund of the balance amount on surrender of the original documents of the unit to OP. Complainant on receipt of cancellation letter, sent a letter to OP seeking further six months time to make the payments. It is denied that the OP has received any letter dated 05.09.05 and 09.07.07 from the complainant.
Identical are the facts in respect of case No.876/2007. In that case also complainant vide application bearing No.9218 dated 22.03.05 had applied for allotment of a commercial space and paid a sum of Rs.1,08,129/-.
We have heard Ld. Counsel for parties carefully perused the record.
Admittedly, complainant has booked two commercial space in the project of OP. On the face of it, complainant is not a consumer as defined in section 2(1)(d) of Consumer Protection Act, 1986:-
“(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.]”
It is useful 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.
It is useful to refer to case of M/s Vardhman Properties Ltd. Vs Som Dutt Sharma (Revision Petition No.3754/2014 with IA/7087/2014) - In that case the complainant has booked a commercial space. It was held that “there is no evidence on record that the petitioner is covered under the exception carved out by the explanation to Section 2(1)(d) of the Consumer Protection Act, 1986. Therefore, we have no hesitation in holding that the respondent is not a consumer as such he could have maintained the consumer complaint. The Foras below while allowing the complaint have lost sight of the above material aspect of the case. Therefore, their orders cannot be sustained.”
Similarly in this case, it is nowhere mentioned that complainant has booked the aforesaid commercial space for earning his livelihood. Even otherwise there is no question of earning livelihood by booking two commercial spaces. Hence complainant is not a consumer.
Ld. Counsel for OP has submitted that the complaint is barred by limitation. In this case the allotment was cancelled on 26.07.05 whereas the present complaint was filed on 24.12.07. On the face of it is barred by limitation.
Ld. Counsel for OP has referred to the case of State Bank of India Vs M/s B.S. Agricultural Industries(I), 2009 AIR (SC) 2210 - In that case Hon’ble Supreme Court has referred to the letter dated 21.04.94 written by the complainant and the said letter clearly instructs the Bank to return the documents if not honoured by drawee by 07.06.94.. Obviously, the cause of action accrued to the complainant on 07.06.94 when it did not receive the demand draft for Rs.2,47,154/- nor received the documents. The limitation, thus, began to run from 07.6.1994. The complaint ought to have been filed within two years therefrom which in fact was not done as the complaint was filed much thereafter i.e., on 05.5.1997. The complaint was apparently time barred. Ld. Counsel for the complainant would, however, submit that the complainant sent various letters to the Bank and vide their reply dated March 11, 1997, the Bank asked the complainant to forward a copy of the letter dated May 4, 1996 for necessary action. It was thus contended by the Ld. Counsel for complainant that complaint filed on May 5, 1997 was within time. We are afraid the letter dated March 15, 1995, May 4, 1996 and March 1, 1997 sent by the complainant to the Bank and Bank’s reply dated March 11, 1997 are of no help to the complainant. The Bank has not by their reply dated March 11, 1997 acknowledged its liability The Bank only wanted the complainant to send a copy of the letter dated May 4, 1996 for necessary action. By no stretch of imagination, it can be said that the limitation came to be extended by Ban’s reply dated March 11, 1997. So the complaint is also barred by limitations.
In view of the above facts, 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
