Delhi

New Delhi

CC/101/2013

Trump Holdings Pvt.Ltd. - Complainant(s)

Versus

M/S. DLF LTD. - Opp.Party(s)

06 May 2016

ORDER

 

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE, NEW DELHI-110001.

 

 

           Case No.C.C./101/13                                                                                                             Dated:

           In the matter of:

M/S. TRUMP HOLDINGS PVT. LTD.

Through its Managing

Director-Sh. Arvind Chopra,

207 R, Model Town,

Jallandhar-144003  PUNJAB

 

        ……..COMPLAINANT

 

VERSUS

 

          M/S. DLF LIMITED

         Through its Chairman,

         DLF Centre,

         Sansad Marg,

         New Delhi-110001

 

               .... OPPOSITE PARTY

 

 

S K SARVARIA, PRESIDENT

 

ORDER  

        This complaint under section 12 of the Consumer Protection Act, 1986 (in short ‘Act’) is filed by the complainant company alleging, in brief, that OP Company floated a new project known as DLF Galleria, situated at  Ferozpur Road, Ludhiana, Punjab and the complainant through its Managing Director Sh. Arvind Chopra filled an application form for allotment of office space in the said project.  The OP allotted provisionally property bearing number LDM 530 measuring 710 sq. ft. at basic price of Rs. 7000 per square feet.  The maintenance security was charged by the OP at the rate of Rs. 500 per square feet.  The complainant paid a sum of Rs. 6 lacs at the time of booking as per the construction Linked Payment Plan.  As per payment notice 15/12/2009 of the OP, the complainant also submitted Rs. 4,54,000/- to the OP which was due at the payment plan for the first two months of booking.

On 13/12/2010 OP informed the complainant that due to the circumstances beyond their control the project, “DLF Galleria” has been abandoned and OP has decided to refund the money paid to them towards the said allotment.  On 17/12/2010  the complainant wrote to the OP asking them to honor the interest clause of 9% per annum as mentioned in the application form.  However, OP not only refused to comply with the said clause of the Application Form but also refused to refund the money till the complainant signed a ‘No Objection Certificate’ in their favour.  Thereafter complainant received a cheque dated 31/01/11 of Rs. 10,54,000/- without any interest component which was to be paid as per in the Application Form.

The complainant has sought the direction against the OP to pay the amount of Rs. 5,98,492/- being 18% interest for the period March, 2010 to January, 2013 (Rs. 5,38,492/-) and damages towards emotional distress and litigation expenses (Rs.60,000/-)

The notice of the complaint was issued to OP Company who contested the complaint and filed reply challenging the territorial Jurisdiction of the District Forum the project of DLF Galleria was situated at Firozpur Road, Ludhiana, Punjab. Another preliminary  objection taken is that as per clause 34 of the application form, the disputes between the parties are required to be referred to arbitration as per  arbitration clause so this Forum has no jurisdiction to entertain the present complaint. Another objection is that the complainant is not a consumer so the complaint cannot be entertained by this Forum as the allottee of the space in question is a company and not any individual.

The alleged payment made by the complainant to the OP in respect of allotment of the office space in the project DLF Galleria sitated at Firozpur Road Ludhiana, Punjab is not disputed by the OP.  OP has also alleged that the complainant has received the amount of Rs. 10,54,000/-  without any objection so complainant is not entitled to file the present complaint.  The OP has denied other facts stated in the complaint and has prayed for its dismissal.

In the replication the complainant has denied the averments made in the reply of the OP and has reaffirmed the facts stated in the complaint.

On behalf of the complainant the affidavit in evidence of Sh. Arvind Chopra, Managing Director of the complainant company is filed and on behalf of the OP Company the affidavit in evidence of Ms. Poonam Madan Authorized Representative of the OP Company is filed, both parties have filed written arguments.

We have heard the Ld. Counsel of the parties and have gone through the written arguments filed on their behalf, the record of the case and relevant provisions of law.

The basic facts in this complaint case are not disputed.  Admittedly, the complainant Company had applied for a office space in “DLF Galleira” and was allotted the space.  It is also not disputed that the total principal amount paid by the complainant company to OP (Rs.10,54,000/-) for the said office space has been refunded by the OP Company.  The present claim of the complainant is in respect of interest @18% p.a. from the period from March,2010 to January, 2013 in the sum of Rs. 5,38,492/- and compensation on account of emotional distress including litigation expenses amounting to Rs. 60,000/- making total  of Rs. 5,98,492/-.

On the question of territorial jurisdiction raised by the OP Company, no doubt, the property in question was to be given to the complainant in district Ludhiana, Punjab which is beyond territorial jurisdiction of this District Forum but the territorial jurisdiction of the Distric Forum has to be ascertained as per Section 11 of the Consumer Protection Act, 1986.  In the written arguments the complainant has alleged that the money was received by the OP in Delhi, Registered Office of the OP is situated in Delhi and allotment letter was also issued by OP from Delhi, therefore, this district forum has territorial jurisdiction to entertain and adjudicate the present complaint.  We find force in this argument. The registered office of the OP company being situated at Sansad Marg, New Delhi-01 within territorial jurisdiction of this Forum and the amount was received by the OP in Delhi Office and allotment letter was also issued from this Delhi office then certainly part of cause of action arose within territorial jurisdiction of this district forum besides the registered office of the OP is situated within territorial jurisdiction of this Forum. Therefore, we hold that this district forum has territorial jurisdiction to entertain the adjudicate of the present complaint. 

The objection of OP regarding arbitration clause in the application form also in our view, does not help the OP for the simple reason that the remedy before the District Forum under the provisions of the Act and an additional remedy and provisions of this Act are in addition to and not in derogation of the provisions of any other law for the time being in force by virtue of section 3 of the said Act. Therefore, the fact that the parties agreed for arbitration in the application form, does not bar the complainant from filing the present complaint.

The next objection of the OP against present complaint is that the complainant is not the consumer.  The complaint before the consumer forum can only be filed for redressal of grievances of the consumer.  A person who does not fall within the meaning of ‘Consumer’ as given under Section 2(1)(d) of the Act cannot file the complaint or take the benefit of the said Act.  The perusal of the meaning of ‘Consumer’ under Section of the Act clearly shows that buying any goods for consideration or hiring or availing any services for a consideration by a person should not be for any commercial purpose.  However, the Explanation under section 2(1)(d) of the Act indicates that if a person has bought the goods or availed of services exclusively for the purpose of earning his livelihood by means of self-employment  then the said person even though buying goods or availing services for consideration for a commercial or business purpose would still be a consumer. The key words in the explanation in our view are ‘earning his livelihood’ and ‘self-employment’.  The complainant being an artificial person being  a Pvt. Ltd. Company and has applied for an office space in commercial complex “DLF Galleria” cannot be presumed to have done it for the purpose of earning its livelihood by means of self-employment.  On behalf of the OP Company reliance is placed upon the decisions of the Hon’ble National Commission in M/s Moran Plantation Pvt. Ltd. Vs. M/s. Ambience Private Ltd.CC No. 307/012 decided on 2/9/2013 and M/s. Purusharath Builders Pvt. Ltd. Vs. M/s Uppal Housing Ltd. in 112 of 2012 decided by Hon’ble National Commission on 5/7/2013 to show that the Pvt. Ltd. Company cannot be a Consumer.

In the complaint no where the complainant has pleaded that the office space was being purchased by it from the OP for the purpose of earning livelihood.  The omission of these pleadings also takes the complainant out of the perview of section 2(1)(d) of the Act. This view is also supported by the authority ABN India Equity (P) Ltd. Vs. DLF Commercial Complex Ltd.  CC No. 158 of 2008 decided by the Hon’ble National Commission on 26/8/2009.

Therefore, we are, of the considered view that the complainant is not a consumer within the meaning of Section 2(1)(d) of the Act. When the complainant company is not a consumer within the meaning of section 2(1) (d) of the Act, the present complaint is not maintainable.  Therefore, there is no need to go into other arguments raised on behalf of both the parties as the same would not change the fate of this complaint.

        In view of the above discussion since the complainant company is not found to be a Consumer as per Section 2(1)(d) of the Act, the complaint is dismissed.  The parties are left to bear their own cost of litigation.
 

 

Copy of the order be sent by registered post to the parties free of cost. This order be sent to server www.confonet.nic.in

File be consigned to record room.

Announced in open Forum on 06/05/2016.

 

 

(S K SARVARIA)

PRESIDENT

 

                                                          (RITU GARODIA)                     (H M VYAS)

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