Delhi

New Delhi

CC/610/2014

Balbir Singh - Complainant(s)

Versus

M/S. Parsvnath Developers Ltd. - Opp.Party(s)

22 May 2017

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./610/2014                                                                                                               Dated:

In the matter of:

SH. Balbir Singh

House No. 13/71,

Dakshim Puri Ext.

New Delhi

        ……..COMPLAINANT

VERSUS

M/S. Parsvnath Developers Ltd.

Through –Its Managing Director,

5^th floor, Arunchal Building 19.

Barakhamba Road New Delhi-110003

 

 

 

       .... OPPOSITE PARTIES

 

MEMBER : NIPUR CHANDNA

ORDER

Complainant is a senior citizen and has filed the present complaint alleging the deficiency in services on the part of the OP for neither giving the possession nor refunding the money paid by him .  The case of the complainant is that he had  booked a unit/shop bearing no. UGF – 09  in the project of the Op named as “ Parsvnath Mall “ at  Sonepat, Haryana to earn his livelihood, and paid a total  sum of Rs. 11,06,947/- in three installments, against the said payment he  had been provided the customer code bearing no. B35/B0006. It is alleged by the complainant that OP had promised him that the possession will be handed over in 5 years from the date of booking, but the same was not delivered even after the passing of 1½ year of the promised date of delivery. Complainant raised the objection regarding the delay in construction as well as delivery of the project with officials of OP, who in turn assured him that the possession will be delivered on time. It is further alleged by the complainant that only because of his continuous persuasion he came to know from one of the executive of OP namely Mr. Rahul singh that the OP had abandoned the project and hence the same would not be completed.

  Despite regular follow up when the complainant did not receive any response from the OP regarding the alleged project ,  he visited the office of the OP and requested for the refund of money orally as well as through application , but the  receipt against the same was not given by the OP. Despite several visits and requests OP neither refunded the money to the complainant nor had given the possession of the unit to him. Complainant therefore, approached this forum for the redressal of his grievance.

Complaint has been contested by the OP. It denies any deficiency in services on its part and had prayed for the dismissal of the complaint on the ground that complainant is not consumer as the property purchased is for the commercial purpose and not for earning livelihood of the complainant and his family.

Rejoinder to the WS has been filed by the complainant. Complainant filed his evidence by way of affidavit, wherein he has corroborated the contents of his complaint. On behalf of OP the evidence by way of affidavit of Sh. Madan Lal Dogra , Deputy General Manager is filed.

We have heard arguments advanced at the bar and have perused the records.

        Ld. Counsel for the OP had contended that the present complaint is not maintainable on the ground that complainant is not the consumer within the meaning of section 2(1) (d) of the Consumer Protection Act, as he had purchased the property for the commercial purpose and not for earning livelihood of himself and his family and has prayed for the dismissal of the complaint.  

          Ld. Counsel for the complainant on the other hand, had argued that complainant is the consumer as he had purchased the alleged property for earning his livelihood and the judgment mentioned by Ld. Counsel for OP is not applicable.

         

 

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 complaint filed by the complainant on the issue of maintainability.

          So far as the explanation is concerned, para no. 1 and 03 of the complaint are relevant and are reproduced as under:-

1. That complainant is a law abiding, peace loving  and respected citizen of India and holds good reputation in the society. He has never been indulged in frivolous case of any kind in his life. That the complainant is a consumer within the definition of section 2(d) of the Consumer Protection Act,1986 as amended till date the Opposite Party (hereinafter referred as OP) has caused deficiency in services by neither giving the possession of the unit as promised nor refunding the money paid by the complainant. It finds pertinent to mention here that the complainant had booked said unit/shop to earn his livelihood.
2. That the OP is one of the big construction houses in India and registered under the provisions of the companies Registration Act 1956 and having its office at the aforesaid address.
3. That the OP had launched a future project under the name and style of “Parsvanth Mall” at Sonepat, Haryana. It finds pertinent to mention here that to lure the innocent consumer, the OP had promoted the said project through print and electronic media at large scale and had promised world class amenities and timely development of the project. That the complainant had booked a unit/shop to earn his livelihood.  

 

On reading of the above, Paragraph of Complainant it is clear that the subject unit was booked by the complainant  exclusively for the purpose of earning livelihood by way of self-employment.  Therefore, in our considered view the case of the complainants is covered, within the above explanation.

In the present case, it is not disputed that the complainants had booked the office space in the commercial project undertaken by the OP, but the same is for the purpose of earning livelihood by way of self-employment which is the part of the pleading of the complainant. Therefore, in our considered view the case o the complainants is covered, within the explanation to section 2(1)(d) .Keeping the money of the complainant for long period , non-refund of the same by the OP despite his repeated requests despite the fact that the project was not even started till date by the OP , amounts to deficiency in services on its part. We therefore, hold OP liable for deficiency in services and direct it as under:-

1. Refund to the complainant a sum of Rs. 11, 06,947 along with 9% interest from the date of filing of complaint i.e 05.09.2014 till payment.
2. Pay to the complainant a sum of R. 20,000/- on account of pain and mental agony suffered by him.
3. Pay to the complainant a sum of Rs. 10,000/- toward cost of litigation.

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.

Pronounced in open Forum on..............

 

                                                                                (S K SARVARIA)

                                                                                    PRESIDENT

 

 

 

 

                                            (H M VYAS)                                                  (NIPUR CHANDNA)

                                               MEMBER                                                                  MEMBER