CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

       Case No.24/2022

MRS. REENA KUMARI,

W/O SH. TIRATH PAL SINGH,

R/O H.NO. C-609, NAND GRAM,

PERMANENT ADDRESS:

VPO SASULI, PATTI, LEPRAN

MUZAFFAR NAGAR…..COMPLAINANT

Vs.

M/S IMPERIA STRUCTURES LIMITED,

REGD. OFFICE AT:

A-25, MOHAN CO-OPERATIVES INDUSTRIAL ESTATE,

NEW DELHI-110044,

THROUGH ITS CHAIRMAN                                    …..RESPONDENTS

Date of Institution-14.02.2022

Date of Order-21.07.2023

         O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency in service on part of OP with respect to non delivery of plot.

2. Brief Facts are stated in complaint are that complainant invested her savings in OP project namely Imperia H20 IT SPACE located at 44-45, knowledge Part V, Greater Noida, UP. She alleges that she was allured by advertisements which presented a rosy picture regarding the features, location, completion and time of project. She booked an office space with assured return in the said project to fulfil her dream of an office for her husband.

3. She paid Rs.2,00,000/- and Rs.61,250/- vide cheques dated 21.04.2012. She applied for allotment of a lockable office in Onyx Lockable Area comprising super area of 500 sq.ft. vide application dated 23.04.2012. The complainant paid a total consideration of Rs.19,65,000/-.

4. She signed a memorandum of understanding dated 01.05.2012 which was in pre-printed format. Complainant has filed a copy of price list and payment plan. She made payment in the following manner:-

5. The complainant relies on clause ‘assured return’ plan of MoU wherein OP undertook to pay an assured amount after receipt of full sale consideration. Complainant further submits that OP paid the assured amount till November, 2015 whereas the assured amount should have been paid till May, 2016.

6. OP vide letter dated 21.04.2016 allotted unit no. 425A to the complainant. OP vide letter dated 26.09.2016 demanded a sum of Rs.2,57,512/- due on offer of possession. The complainant paid the amount vide cheque dated 15.10.2016. A no due certificate was issued vide letter dated 18.01.2017. OP has also issued letter dated 26.05.2017 for registration of office.

7. The complainant did not get the property registered as OP had not completed work pertaining to the lift, parking area, EEC, FFC, IFMS, one time Lease rent, sinking fund, interiors and clearance of garbage/debris etc. Thereafter, the complainant received a letter dated 08.10.2021 for registration of Agreement for Sub-Leases Deed for the office space. The complainant visited the site and found that no work has been initiated for completion of work pertaining to the lift parking area, interiors and clearance of garbage/debris etc. The complainant also received a letter dated 20.11.2021 from OP demanding an amount of Rs.6,27,200/- towards holding charges. It is also submitted that there is zero occupancy due to non-completion of project.

8. The complainant alleges that OP has failed to redress her grievance and hand over the possession of the completed office space. she demanded for refund of the amount paid. The complainant also sent a legal notice dated 14.12.2021. OP once again issued a letter dated 10.01.2022 demanding Rs.6,49,600/- towards holding charges.

9. The complainant states that the cause of action first arose when she had applied for commercial space/office and had made the requisite payments. The complainant prays for refund of Rs.21,52,708/- along with interest @18%p.a. from May,2016 a sum of Rs.20,000/- per month amounting to Rs.13,40,000/- that the complainant paid as office rent, Rs.1,00,000/- towards compensation.

10. Notice was issued to OP but none appeared. OP was proceeded ex-parte vide order dated 08.06.2022.

11. Complainant has filed Ex-parte evidence by way of affidavit and exhibited the following documents:-

1. Copy of Aadhar Card of the complainant is exhibited as EX CW1/A.
2. Copy of MoU is exhibited as EX CW1/B.
3. Copy of Price List and Payment Plan is exhibited as EX CW1/C.
4. Details of proof of payment and Receipts are exhibited as EX CW1/D (Colly).
5. Copy of letter issued by OP is exhibited as EX CW1/E.
6. Copy of Demand Letter issued by OP is exhibited as EX CW1/F.
7. Copy of No Dues Certificate is exhibited as EX CW1/G.
8. Copy of letter issued by OP is exhibited as EX CW1/H, EX CW1/I and EX CW1/J.
9. Copy of the photographs of the Plan/area is exhibited as EX CW1/K (Colly).
10. Copy of legal notice along with postal receipt is exhibited as EX CW1/L (Colly).
11. Copy of letter is exhibited as EX CW1/M.

12. We have heard the counsel and perused the material on record. The preliminary issue to be decided is whether that complainant is a consumer under the Consumer Protection Act, 2019 and whether the present complaint falls within the definition of commercial purpose. 

13. The term consumer in Section2(7) of Consumer Protection Act, 2019 is as follows:-
14.  

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 or for any commercial purpose; or
2. hires or avails of any service 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 service 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 service for any commercial purpose.

Explanation.- For the purposes of this clause’-

1. the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
2. the expressions “buys any goods” and “hires or avails any services” includes offline and online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

14. The aforesaid provision is clear that the Act does not cover any services which were availed for commercial purpose.

15. The question which needed to be decided was the effect of assured return on the agreement. 
16. Hon’ble State Consumer Disputes Redressal Commission in Kusum Goenka & Anr. vs M/S Wianxx Impex Pvt. Ltd. Complaint No.1636/2017 has observed that:

 However, he has also mentioned about the assured returns. The Hon'ble NCDRC have laid down that issue relating to assured return tantamount to commercial transaction, which means, from that angle the complainants keeping  in view the provisions contained under Section 2(1)(d), would not be a consumer. 

…………

The Hon'ble NCDRC in the matter of Smt. Priti Arora vs. M/s. ARN Infrastructure India Pvt. Ltd., CC. no. 246/13  decided on 06.04.2017 has ruled that any transaction having assured returns is a commercial transaction. Commercial transaction is not covered within the definition of consumer.   

Having regard to the discussion done we are of the considered view that the transaction of the complainants is of a commercial nature and if that is the case they are not entitled to raise the consumer dispute under the provisions of the Consumer Protection Act, 1986.

17. In the present case, the sole purpose of transaction is for securing an office space with assured return for the complainant’s husband. She also submit that an assured amount has been received from OP till November, 2015. 

18. In the light of the discussion above, the complainant is not a consumer as such transactions are of commercial nature. Hence, the complaint is dismissed with no orders as to costs.