Delhi

New Delhi

CC/210/2014

SH. Krishan Kumar Dhingra - Complainant(s)

Versus

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

06 Mar 2020

ORDER

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC/210/2014                                 Dated:

          Inthe matter of:

1. Sh. Krishan Kumar Dhingra

S/o Sh. AshaNandDhingra

 

2.  Dr. (Mrs.) Rama Dhingra

     Wife of Sh. K.K. Dhingra

 

    Both Resident of F-153, 2^nd Floor

   Mansarover Garden, New Delhi-15                                                                             ....COMPLAINANTS

                                                            VERSUS

 

                M/ S Parsv Nath Developers LTD

                Through Sh. Pradeep Kumar Jain ( Chairman) 6^th Floor,     

          Arunachal Building 19, Barakhamba Road,

           New Delhi – 110001                                                   

………. OPPOSITE PARTY

            ARUN KUMAR ARYA- PRESIDENT

ORDER

The complainant has filed the present complaint against the OP under section 12 of Consumer Protection Act, 1986.  The brief facts as alleged in the complaint are that the complainant booked one shop, bearing no. SF-034, Second Floor  area measuring 367 sq feet (34.09 sq. metres) in the Shopping Mall PARSV NATH CITY CENTRE at Sonipat on 30/09/2008 which was to be constructed and given possession within a period  of 36 months and could be extended another 6 months  by assigning reason.

The complainants paid an advance of Rs. 2,31,210 to the OP  on 30/09/2008 for the booking of aforesaid shop. Later on, the complainant’s paid a total sum of Rs. 5,28,700/- to the OP against the basic price of the shop. There was no progress at the construction site for the last four years.

Later on, the complainant gave a legal notice  dated 27/04/2013 through  their counsel to the OP. No materials came out  from the side of  OP, hence the complaint is made for a sum of Rs. 13,04,858/-

The OP was noticed and filed written statements/ versions denying all allegations and stating that the complainant is not a consumer as the property purchased  is for the commercial purpose and not for earning the livelihood of the complainant and his family. He has placed on record the judgement of ChilukuriAdarsh  vs. M/s EssEssVee Constructions the Hon’ble National commission i.e.

        “The complaint cannot be maintained before  the Consumer for a  like the agreement  was for the construction  of two showrooms, which  obviously  relate to commercial purpose and the complainant , therefore,  will not come within the definition of a “Consumer” as per the section  2 (1) (d) of the Consumer Protection Act, 1986. “

Both the parties filed their evidence by way of affidavit. Oral arguments were also addressed.

We have heard arguments advanced at the bar by both the parties.

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
3. 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:-

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 thecomplainants 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 InderNathMehra&Ors. Vs. Purearth Infrastructure Ltd. decide on 15/5/15.

The Forum has our considered view that the complainant has booked this space for commercial purpose as he is chartered accountant. Nowhere in the pleadings he has mentioned that  the space booked by him for earning his livelihood. Under these circumstances, the complainant is not a consumer as per the Consumer Protection Act, 1986. 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).

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  06/03/2020.

 

(ARUN KUMAR ARYA)

 PRESIDENT

    

  (NIPUR CHANDNA)                                                                                         (H M VYAS)

                         MEMBER                                                                                                    MEMBER