Delhi

New Delhi

CC/926/2009

Pawan Bhargava & Ors. - Complainant(s)

Versus

M/S. Solid Properties - Opp.Party(s)

22 Mar 2017

ORDER

 

NEW DELHI DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

M BLOCK, 1ST FLOOR, VIKAS BHAWAN, I P ESTATE, NEW DELHI-110002

 

Case No.CC/926/2009                                                                    Dated:

 

IN THE MATTER OF:-

Pawan Bhargava

Mrs. Vijay Bhargava

Mrs. Shashi Bhargava

All Residing at

R/o 91, Medha Apartments

Mayur Vihar Phase 1

Delhi-110091.

                                                                                                   ………………………………………COMPLAINANT

VERSUS

 

M/S. Solid Properties

Surya Kiran Building

19, Kasturba Gandhi Marg,

Connaught Place

New Delhi-110001.

 

                                                                                                  ……………………………………….OPPOSITE PARTY

 

 

 

 

ORDER

NIPUR CHANDANA MEMBER

Complainants booked commercial space in the upcoming project of OP namely   Express Mall “at Indirapurma, vide Shop Bearing no. 17, at upper ground Floor admeasuring super area of 290 sq. ft. @ Rs. 5,820 + 10 % per sq. ft. on 16.02.2005,    on the assurance of the representative of OP that the project will start very soon and same will be completed by March- 2007. 

          It is alleged by the complainants that they paid a sum of Rs. 6,39,801/- in total, the details of which as under:-

S.No.	DATE	AMOUNT
	16.02.2005	RS. 10,000/-
	17.02.2005	RS. 58,552/-
	17.02.2005	RS. 58,552/-
	17.02.2005	RS. 58,554/-
	08.04.2005	RS. 92,829/-
	08.04.2005	RS. 92,829/-
	08.04.2005	RS. 92,829/-
	04.11.2006	RS. 58,552/-
	04.11.2006	RS. 58,552/-
	04.11.2006	RS. 58,552/-
TOTAL		RS. 6,39,801/-

 

It is alleged by the complainants that despite assurance, Op failed to deliver the possession of the shop in the year 2006 and as such he visited the office of the OP, where the officials of OP informed him that the construction will be completed in the second week of December, 2007. After waiting for a considerable long period, when he found that the construction was not completed in the second week of December-2007, he again visited the office of the OP. The officials of OP instead of satisfying the complainant on the delayed possession, demanded him the further payment along with interest. Being, aggrieved by the conduct of the OP, complainants demanded their money back along with interest vide their letter dt. 1.02.2008. It is further alleged by the complainants that OP paid them the principal amount but did not paid the interest and forced them to gave a written letter stating that the interest may be waived. Complainant requested the OP to pay , but the same was flatly refused by OP , and as such , complainants sent a legal notice demanding the interest to be paid on the refunded principal amount, but all in vain. Complainant therefore, approached this Forum for the redressal of his grievance.

 

     The Complainant has been contested by OP. In its W.S. OP has denied any deficiency in service on its part and has alleged that the present complaint is not maintainable as the complainant is not a ‘Consumer’ and this Forum has no jurisdiction to entertain the same.

     Rejoinder to the WS has been filed by the complainant wherein, the objection raised by OP  were simply denied. Complainant filed his evidence by way of affidavit, wherein he has corroborated the contents of his complaint.

     Despite several opportunities OP failed to place on record its evidence and as such its defence was struck off on 11/11/16.

     We have heard arguments advanced at the bar by  the complainants.

          In Rajesh Gulati and another Vs. DLF Commercial Complex Ltd. 2016 (2) CPR 219 of Hon’ble National Commission 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 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:-

“5. 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 the complainants 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 Inder Nath Mehra & Ors. Vs. Purearth Infrastructure Ltd. decide on 15/5/15.

          In the present case also complainants has mentioned in their complaint, rejoinder and evidence that they had booked commercial space in the upcoming project of OP namely   Express Mall “ at Indirapurma, vide Shop Bearing no. 17, at upper ground Floor admeasuring super area of 290 sq. ft. @ Rs. 5,820 + 10 % per sq. ft. on 16.02.2005,  and it is nowhere stated that the subject unit was booked exclusively for the purpose of earning livelihood by way of self-employment. Admittedly, the commercial unit was booked by the complainants, it is obvious that the services of the OP were availed for commercial purpose and 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 forum, 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.

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

 

 

(S K SARVARIA)

 PRESIDENT

 

 

 

(H M VYAS)                                       (NIPUR CHANDANA)

                                                               MEMBER                                                   MEMBER