Delhi

New Delhi

CC/819/2012

Alka Makharia - Complainant(s)

Versus

M/S. Ansal Properties & Infrastructure Ltd. - Opp.Party(s)

01 Jun 2019

ORDER

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC/819/2012                                                                                Dated:

In the matter of:

Smt. Alka Makharia,

W/o Sh. Naveen Makharia,

R/o S-1, Sharda Chamber II,

D-15, Prashant Vihar,

Central Market, New Delhi-34.

                                                                                                                                                                ……..COMPLAINANT

                                        VERSUS 

 

1. Ansal Properties and Industries Ltd.,

Through its Director.

 

2. The Director of

Ansal Properties and Industries Ltd.,

 

Both at  112, Ansal Bhawan,

16, Kasturba Gandhi Marg,  New Delhi-110001.

 

………. OPPOSITE PARTIES

ARUN KUMAR ARYA, PRESIDENT

                

ORDER

The complainant has filed the present complaint against the OPs under section 12 of Consumer Protection Act, 1986.  The brief facts as alleged in the complaint are that the complainant was the transferee/allottee of shop bearing No. GF-041, area 281 sq.mtrs at Citi Centre “C” Block, Sushant Lok, Gurgaon, Haryana, with OP-1.  The total cost of the said shop was Rs.14,05,000/-.  One Smt. Puja  had applied with OP-1 for the said shop and paid a sum of Rs.3 lacs  as a part payment.  Thereafter, Smt. Puja has transferred her rights qua the aforesaid shop in favour of complainant and the said shop was transferred by the OP in favour of complainant vide letter dt. 26.5.1997 and an allotment letter dt. 27.5.1997 was also issued by OP-1  in favour of complainant.    As per demand of OP-1, complainant further paid a sum of Rs.94,629/-.  Thereafter, the complainant approached the OP and offered  to pay the balance amount of aforesaid shop with interest and requested to handover the possession of said shop but OP-1 neither raised any further demand towards balance cost of shop nor accepted handed over the possession of  the shop.    The legal notice dated 16.3.2012 was sent to the OP-1 thereby calling upon the OP-1 to accept the balance amount of shop and handover the possession of the said shop but nothing was done by  OP-1, hence this complaint.

2.     Complaint has been contested by OP-1.  In its reply OP-1 has stated that total amount paid by the complainant towards the basic price of the said Commercial space amounting to Rs.3,83,565/- had already been refunded to her vide cheque No.770277 dt. 24.9.2005.  It is further stated by the OP that this Forum has no jurisdiction to entertain and adjudicate the present complaint as the complainant has booked the said Commercial Unit for Commercial purpose, as such, it does not fall within the ambit of Consumer Protection Act,  besides other issue and prayed for the dismissal of the complaint.

3.     Both  the parties have filed their evidences  by way of affidavit,

4.     We have heard argument advance at the Bar and have perused the record.

5.     On the issue of Commercial Unit booked by the complainant  we are guided by Hon’ble National Commission in Rajesh Gulati and another Vs. DLF Commercial Complex Ltd. 2016 (2) CPR 219 in which it was held that :

“It is not disputed that the complainants had booked the office space in the commercial project undertaken by the OP.  Therefore, if we go by the definition of “consumer” as envisaged under section 2(1)(d)(ii), it is clear that the complainants do not fall within the definition of “consumer” as they have availed of the services for the commercial purpose, unless their case is covered under the Section 2(1)(d) of the C.P. Act.

Section 2(1)(d) of the Act defines the term “Consumer” as under :

               2 (1) (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 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 of for any commercial purpose; or

 

2. [hires or avails of] any services for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any beneficiary or such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid any 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 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}

          On reading of the above, it is clear that in order to avail the benefit of the explanations, the onus lies on the complainant to show that they have availed the services of the opposite party exclusively for the purpose of earning their livelihood by means of self-employment.  In order to find out whether or not the complainants are covered within the explanation, we have perused the affidavit evidence filed by the parties on the issue of maintainability.

          So far as the explanation is concerned, para 5 and 28 of the affidavits of the respective complainants are relevant.  Both the complainants have filed affidavit with identical language. Para 5 and 28 of the respective affidavits are reproduced as under:-

“5. That on the basis of information provided by the respondent and on the assurance given by it to the effect that the respondent would complete the construction of the said complex within three years from the date of booking, for my use, I along with the complainant No. 2 applied for allotment of a unit in the said complex/DLF Towers, at a consideration of Rs. 1,82,88,000/- plus Rs. 6,00,000/- towards parking space and as per terms and conditions, then intimated, and paid a sum of Rs, 7,50,000/- towards booking amount, vide following cheques :

1. Cheque No. 000046 dated 8/3/08 for Rs. 3,75,000/- drawn on Kotak Mahindra Bank Ltd., payable at New Delhi and

 

2. Cheque No. 756899 dated 8/3/08 for Rs. 3,75,000/- drawn on Indian Bank, payable at New Delhi

Both the cheques were duly acknowledged vide receipt No. QEC/Sales/DSH427/SHP020R=16869 dated 8/3/08. Copy of the receipt dated 8/3/08 bas been filed on record and is exhibited as Exhibit CW-1/1.

28.  That since the respondent had not yet commenced any construction work at the site and in the facts and circumstances the respondent will not be able to complete the construction work at site and will not be able to deliver the said unit to me along with the complainant No. 2 as it was promised while seeking booking from me along with the complainant No. 2, the respondent is guilty of having rendered deficient services, and committed unfair trade practices.  The respondent by its said conduct has also caused damage and loss to me along with the complainant No. 2 as I along with the complainant No. 2 have not been able to get the possession of the unit booked by us, which was for our own personal use, and for the said reason, I along with the complainant No. 2 value the said loss and damage of Rs. 5,00,000/- and the said amount is payable by the respondent to me along with the complainant No. 2.”

 

          On reading of the above, it is clear that if the affidavits are to be believed the subject unit was booked by the complainants jointly for their personal use affidavit nowhere states that subject unit was booked exclusively for the purpose of earning livelihood by way of self-employment.  Therefore, in our considered view the case of the complainants is not covered, within the exclusion clause, Reference be made to the decision of this Bench in the matter of Inder Nath Mehra & Ors. Vs. Purearth Infrastructure Ltd. decide on 15/5/15.

6.     In the present case also complainant has mentioned in her complaint and affidavit that she had booked shop bearing No. GF-041, area 281 sq.mtrs at Citi Centre “C” Block, Sushant Lok, Gurgaon, Haryana  and it is nowhere stated that the subject unit was booked exclusively for the purpose of earning livelihood by way of self-employment. Admittedly, the commercial unit was booked by the complainant, it is obvious that the services of the OP were availed for commercial purpose and as such, in view of the exclusion carved out under Section 2 (1) (d) (ii) of the C.P. Act, 1986. The complainant is not the “Consumers” in the light of Rajesh Gulati’s Case (supra).

7.     In view of the discussion above, the instant complaint is not maintainable.  Hence, the complaint is dismissed with liberty to the complainants to avail of their remedy by moving appropriate court as per law.

This final order be sent to server (www.confonet.nic.in ). A copy of this order each be sent to both parties free of cost by post.  File be consigned to Record Room.

Announced in open Forum on  01/06/2019

 

                                                          (ARUN KUMAR ARYA)

                    PRESIDENT

(NIPUR CHANDNA)                                                         (H M VYAS)

                    MEMBER                                                                     MEMBER