Delhi

StateCommission

CC/13/567

SUDESH THUKRAL - Complainant(s)

Versus

M/S VARDHMAN PROPERTIES - Opp.Party(s)

26 Sep 2017

ORDER

 IN THE STATE COMMISSION : DELHI

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

 

Date of Decision: 26.09.2017

 

Complaint case No.567/2013

 

1. Smt. Sudesh Thukral,

W/o Late shri Surender Kumar Thukral,

H-25, Second Floor, Vikas Apartment,

West Enclave, Pitampura, Delhi -110034.

 

2. Shri Atul Thukral,

S/o Late shri Surender Kumar Thukral,

H-25, Second Floor, Vikas Apartment,

West Enclave, Pitampura, Delhi -110034.

 

3. Ms. Netasha Thukral,

D/o Late shri Surender Kumar Thukral,

H-25, Second Floor, Vikas Apartment,

West Enclave, Pitampura, Delhi -110034.

 

4. Smt. Rita Arora & Radhika

W/o Shri Rajeev Arora,

D/o Late shri Surender Kumar Thukral,

BT-46, Shalimar Bagh,

Delhi -110088.

 

5. Smt. Anju Gulati

W/o Shri Vishal Gulati

D/o Late shri Surender Kumar Thukral,

295, Napier Town, Jabalpur, MP

 

6. Smt. Simmi Sabharwal

W/o Shri Vikram Sabharwal,

D/o Late shri Surender Kumar Thukral,

53/26, Ramjas Road, Karol Bagh,New Delhi.

….. Complainants.

 

Versus

 

M/s. Vardhman Properties Ltd.,

G-9, Vardhman Trade Centre,

Nehru Place, New Delhi -110019.

                                ….Opposite Party

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

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

    

2. To be referred to the reporter or not?

 

 

Ms. Salma Noor, Member  

 

 

1. This is a complaint under Section 17 of the Consumer Protection Act, 1986 (in short, “the Act”) filed by the complainant No.3 Ms. Netasha Thukral on behalf of complainants No.1, 2 4 to 6 being their attorney, wherein it is averred that in the year 2006, Late Shri Surender Kumar Thukral, father of complainant No.2 to 6 and husband of complainant No.1 booked a commercial built up space in Vardhman A.C. Market, Vigyan Vihar, Delhi by depositing initial amount of Rs.2,07,600/-. It was alleged that OP allotted a commercial space vide Unit No.G-27, Ground Floor, Plot No.CSC in Vardhman AC Market, Vigyan Vihar, Delhi having approx. super area 173 sq. ft. @Rs.12,000/- per sq. ft. It was alleged that thereafter he paid further payment of  Rs.2,07,600/- to the OP. It was alleged that after his death on 03.09.2011, the legal heirs of the deceased enquired about the execution of the agreement in respect of the aforesaid commercial space but all in vain, hence the complainants stopped further payments towards the said allotment. It was alleged that thereafter, the complainant issued a legal notice dated 16.01.2012, which was replied by the OP stating therein that said allotment has been cancelled due to non-payment during the period 21.11.2006 to 21.09.2007 i.e. about Rs.13,49,000/- as on 10.11.2007.
2. It is alleged that there is delay in handing over the possession that amounts to deficiency in service. The complainant has prayed that OP be directed to handover the possession of the said commercial built up space and/or to refund the deposited amount of Rs.4,15,000/- alongwith interest @18% PA from the date of deposit i.e. 25.06.2006 till realization. The complainant has also prayed compensation of Rs.5,00,000/- for deficiency in service and Rs.1,00,000/- towards litigation expenses.
3. The OP has opposed the complaint by filing written statement, inter-alia, raising preliminary objections that the unit in question being a commercial unit is meant for commercial purpose, therefore the complainants are not consumers within the definition of ‘consumer’ as defined under section 2(1)(d)(ii) of the Consumer Protection Act, 1986. That the complaint is barred by limitation as it has been filed more than 02 years after the unit in question was cancelled by the OP on account of non-payment of the dues. It is alleged that the OP vide letter dated 22.10.2007, after issuing notices and reminders to late Shri S.K. Thukral to complete various formalities and sign the formal agreement and also to make payments against the unit, cancelled the allotment.
4. Apart from the above objection, the OP denied all the allegations of deficiency in service. It is alleged that the allegations of the complainants as regards the alleged deficiencies in the building and non-construction of the building are false and incorrect. It is alleged that the building has been constructed as per sanctioned building plans. It is alleged that the complainants have not annexed any succession certificate or letter of administration granted by a court of competent jurisdiction under Indian Succession Act, in support of their claim of being legal heirs of Shri S.K. Thukral, thus the complainant have no locus standi to file the present complaint. It is alleged that the allotment was cancelled by the OP vide letter dated 22.10.2007 on account of default in making payment of scheduled installment for the unit in question. It is alleged that the OP issued letter dated 07.11.2006, 25.11.2006, 27.12.2006, 24.01.2007, 21.02.2007, 21.03.2007, 24.08.2007, 22.05.2007, 25.06.2007, 23.07.2007, 27.08.2007 and 21.09.2007 to Shri S.K. Thukral demanding the outstanding installments and it is only thereafter the allotment was cancelled on 22.10.2007.  It is alleged that the OP has also forfeited the earnest money as per the agreement. It is alleged that the complainants are not entitled for the reliefs as are prayed and the complaint is liable to be dismissed.
5. Rejoinder is filed by the complainants wherein contents of the complaint are reiterated.
6. In support of complaint case, affidavit of complainant No.3 Ms. Netasha Thukral who is also the attorney of others complainants has been filed. In the affidavit contents of complaint are reiterated on oath.
7. On behalf of OP, affidavit of its authorized signatory, namely, Shri Ajit Singh, has been filed by way of evidence wherein the stand taken in the written statement has been reproduced on oath.

8.                     We have heard learned Counsel for the parties on the preliminary issue of maintainability and perused the record. In order to appreciate the contention of the respective parties, it would be useful to have a look on the definition of consumer as envisaged under Section 2(1)(d) of the Act. The section reads as under:

“(d) “consumer” means any person who—

(i)

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

(ii)

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 purposes;

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.                     On reading of the above, it is clear that consumer is a person who buys goods or hires or avails of services of any one for consideration present, past or future. The section however carves out an exception by providing that the person who has purchased goods or hired/availed of services for commercial purpose, shall not be included in the definition of consumer.

10.                   Admittedly, in the instant case the complainants have entered into an agreement with the opposite partiy in respect of a commercial space/unit No. G-27, Ground Floor, Plot No. CSC in Vardhman AC Market, Vigyan Vihar, Delhi having approx. super area 173 sq. ft. Thus, it is clear that the services of the opposite parties were availed by the complainant for commercial purpose.

11.                   On bare reading of the above it is clear that the space/unit booked by the complainants is a commercial property and it was supposed to be used for commercial purpose. Thus, it cannot be disputed that the complainants had hired or availed of services of the opposite party for commercial purpose.

12.                   In view of the discussion above, as the complainants had availed of services of the opposite party for commercial purpose, they are not a consumer as envisaged under Section 2(1)(d) of the Act. Thus, the complainants have no locus standi to file a consumer complaint. Complaint is accordingly rejected.

13.                   The complainant, however, shall be at liberty to avail of his remedy by approaching the appropriate Forum on the same cause of action.

14.                   A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. 

              File be consigned to Record Room.

 

(Justice Veena Birbal)

President

 

 

 

(Salma Noor)

Member