REKHA GUPTA, PRESIDING MEMBER The present appeal has been filed against the judgment dated 07.04.2017 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (‘the State Commission’) in CC no. 29 of 2015. 2. The facts of the appeal as per the appellant/complainant are that the appellant had booked a shop no. OF - 17 A measuring 478 sq feet with the respondent/ opposite party for Rs.16,96,900/- against an initial payment of Rs.1,69,690/- on 24.07.2008 for earning her livelihood. Vide letter dated 20.08.2008 allotment was made and it was told that the possession would be delivered within 36 months thereof. The appellant deposited the entire consideration within 10 months of allotment, as detailed in the complaint, but the possession was not delivered. Hence, the appellant filed the complaint with the prayer that the OP be directed to grant relief as mentioned below: Get the sale deed of the shop being unit no. OF – 17 A in the next door, sector 76, Parklands, Faridabad registered in favour of the appellant and hand over the possession of the shop to the appellantor alternatively, refund the appellant the entire amount paid by the appellant till date along with interest @ 24% per annum; Pay the appellant compensation for delay in handing over the possession of the shop in accordance with clause 3 of Buyer’s agreement along with interest @ 24% per annum till the date of payment; Pay the appellant interest @ 24% per annum on Rs.2,92,504/-, i.e., the amount deposited by the appellant on 04.03.2014 till the date of registration of sale deed (in case of order of refund of the entire amount as per prayer clause (i) the appellant be directed to refund Rs.2,92,504/- along with interest @ 24% per annum); Refund the appellant the amount of Rs.61,877/- of enhanced external development charges which hs been charged illegally without any justification along with interest @ 24% per annum; Refund the appellant electricity connectioncharges of Rs.60,000/- which has been charged illegally without any justification along with interest @ 24% per annum; Refund the appellant power back up charges of Rs.75,000/- which has been charged illegally without any justification along with interest @ 24% per annum; and Pay the appellant a sum of Rs.20,00,000/- as compensation for harassment and mental agony caused to appellant due to delay in handing over of possession of shop, non-payment of compensation for delay in possession, non-registration of sale deed and the respondent company’s authoritative manner in pressurising appellant to deposit/ submit the illegal demands raised by respondent company.
3. The respondent filed their reply admitting allotment but alleged that the appellant did not fulfil the conditions stipulated in agreement for possession as well as execution of sale feed. Possession was offered to her in the month of February 2014, but the appellant did not execute relevant documents, so there was no fault on their part and prayed that the complaint be dismissed. 4. The State Commission vide its order dated 07.04.2017 while dismissing the complaint observed as under: “4. Learned counsel for the complainant argued that the shop was booked for earning livelihood as specifically alleged in complaint so it cannot be considered that it was for commercial purpose. She is covered by definition of consumer and this complaint is maintainable. 5. However, there is no dispute that in paragraph no. 3 of the complaint it is alleged that the shop was booked for earning livelihood, but she did not produce any evidence to prove this fact. When complainant entered witness box it was no-where stated that this shop was booked in commercial complex for earning livelihood. The National Commission has clearly opined in Revision Petition no. 4044 of 2009 titled as M/s JCB India Ltd., vs M/s Chandan Traders and Ors., decided on 19.02.2015 that simple averments that anything was taken for earning livelihood is not sufficient to presume this fact to be true. It is specifically opined therein that concerned person is supposed to prove that said article was to be used by him or her for earning livelihood. Complainant no-where alleged that what is she doing and what business was to be run in this shop. It is also not alleged that she was not having any source of income and particular type of business was to be run by her. When these facts are missing it cannot be presumed that the shop was booked for earning livelihood. These views are also fortified by the opinion of the National Commission in Revision Petition no. 421 of 2015 titled Unicity Projects and Anr. Vs Ranjan Bhatia decided on 09.10.2015, Pradeep Singh Pahal vs TDI Infrastructure Pvt. Ltd., CPJ 1 (2016) 219. When she is not covered by definition of consumer, complaint is not maintainable and this Commission can’t adjudicate upon this dispute because judgment without jurisdiction is nullity as opined by the National Commission expressed in Revision Petition no. 317 of 1994 titled as Haryana Urban Development Authority vs Vipan Kumar Kohli decided on 19.01.1995. Resultantly complaint fails and the same is hereby dismissed". 5. Hence, the present appeal. 6. Learned counsel for the appellant had contended that the appellant has been earning her livelihood as an LIC insurance agent since August 2003 from her residence and has now booked a shop to use it her office. Learned counsel for the complainant has cited three citations to support his argument; Ashok Thapar vs Supreme Indosaigon Associates & Anr.; Anand Prakash Gulati vs SDO DHBVNL; and Dwarikesh Sugar Industries Ltd., vs Dhurendrapal Singh
7. Before disposing of the case I would like to advert to section 2 (d) of the Consumer Protection Act, 1986, which 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; 8. On-going through the complaint, it is seen that the State Commission had correctly observed that in the complaint apart from making a bald statement that the complainant had booked a shop no. 17 A in the commercial project of the respondent for earning her livelihood, there is no pleading to the effect that she had booked it for earning her livelihood by means of self-employment and if so, in what manner. She had also not revealed in the complaint that she was already working as an LIC insurance agent from 2003 onwards. As per the record now placed on file, the appellant was working as an agent from House no. 1138, Sector 8 Faridabad, Haryana. It is quite evident from the facts of the case that at the time when the appellant booked the said shop in the year 2008, she was already earning her livelihood by self-employment as an LIC insurance agent. Nowhere in the complaint has she mentioned the business she wishes to pursue from the shop. 9. In the case of Ashok Thapar vs Supreme Indosaigon decided on 19.11.2015, it has been held that the complainant had booked three offices spaces on the plea that it would be used by him exclusively for the purposes of earning his livelihood by means of self-employment. A Coordinate Bench of this Commission had observed that the complainant was already in the business of real estate and was generating sufficient income to run the said real estate from the residence. It had further observed as under: “Since the complainant was already having sufficient income at the time commercial flats in question were booked by him, it cannot be said that he had booked the aforesaid flats exclusively for the purpose of earning his livelihood. The very fact that the complainant was having sufficient income at the relevant time by itself rules out acquisition of these flats for the purpose of earning his livelihood. Since the complainant was seeking to use these three commercial flats as his personal office, it appears that the activity to use these three commercial flats as his personal office, it appears that the activity which he was seeking to carry in the aforesaid commercial flats would have been different from the activity from which he was having substantial income at the time the flats in question were booked by him. This is not the case that he will carry, in the office spaces booked by him, the same activity, which was the source of his income at the time of booking. 10. The facts of the two citations quoted below, i.e., Anand Prakash Gulati vs SDO DHBVNL and Dwarikesh Sugar Industries Ltd., vs Dhurendrapal Singh are not applicable to the case on hand. 11. In this case the complainant has been earning her livelihood by generating income by working as an LIC insurance agent since 2003 by working from her residence. Hence, it cannot be stated that the complainant who was already earning her livelihood and had sufficient income had booked the shop for the purpose of earning her livelihood by self-employment. Further, the appellant has nowhere stated as to why she was in need of the shop. She has also concealed the fact that she was an LIC insurance agent since 2003. The learned counsel for the appellant could not give any explanation why the complainant needed the shop after successfully generating business as an LIC insurance agent from her residence for the last fourteen years. 12. In view of the foregoing discussion, I do not find any cogent ground to interfere with the impugned order of the State Commission. The appeal is accordingly dismissed, leaving the parties to bear their own costs. |
