Delhi

StateCommission

A/12/299

VARDHMAN PROPERTIES LTD. - Complainant(s)

Versus

RAMESH KR. BANSAL - Opp.Party(s)

10 Dec 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing: 10.12.2018

                                                                                                              

                                                                   Date of decision:12.12.2018

 

 

First Appeal No. 299/2012

 

IN THE MATTER OF:

 

Vardhman Properties Ltd.,

Through its Authorised Signatory

Shri Ajit Singh, G-9, DDA Building,

Nehru Place, New Delhi-110019                                      ….Complainant                     

VERSUS

 

Sh. Ramesh Kumar Bansal

•  

Priya Industries

86/214, Dev Nagar, Kanpur,

Uttar Pradesh-208002

 

Also At:

Priya Industries

136, Anandpuri,

Kanpur (U.P)-208023                                         ….Opposite Parties

 

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER

 

 

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

 

Present:       Sh. K. Bhimarj Achary Counsel for the appellant

                   None for the respondent

 

PER:           ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           Aggrieved by the orders dated 24.02.2012 passed by the Consumer Disputes Redressal Forum, X, in C-537/2016 in the matter of Ramesh Kumar Bansal versus Vardhman Properties Ltd., directing the OPs before the District Forum to refund the total amount paid by the complainant towards booking of the commercial space with interest @ 9% from the date of deposit (s) till the refund is made as also Rs. 5000/- towards litigation cost, the Vardhman Properties Ltd., have preferred an appeal before this Commission under Section 15 of the Consumer Protection Act 1986 (the Act) for short Appellant, against Sh. Ramesh Kumar Bansal, hereinafter referred to as respondent, assailing the said order and praying for setting aside the order impugned herein.
2.           Facts of the case necessary for the adjudication of the appeal are these.
3.           The complainant/respondent, resident of Kanpur, U.P., responding to a circular issued by the appellant/OPs inviting applications for the allotment of a shop/office space, had applied for the allotment of one unit and for this purpose, booking amount of Rs. 69,471/- was paid on 09.08.2003. The covered area of the units is 161 sq. ft. Total sale consideration was Rs. 6,94,710/-. Further payment of the same amount of Rs. 69,471/- was made on 30.09.2003. Payment thereafter was made by the complainant as per the agreed payment schedule. Provisional allotment of a shop unit no. VDP-227 in the plaza i.e. Vardhman diamond Plaza at Plot No. 3 Community Center Motia Khan, D.B. Gupta Road, Paharganj, New Delhi was allotted in favour of the complainant.
4.           However, according to the complainant, despite the payment having been substantially, the OPs had cancelled the allotment of the shop on 01.11.2004. In these circumstances the complaint was filed before the District Forum praying for the relief as indicated below:

 

1. To withdraw letter dated 01.11.2004 whereby allegedly cancelling allotment of complainant’s shop i.e. Unit No. VDP 227 in the plaza i.e. Vardhman Diamond Plaza at Plot No. 3, Community Center, Motia Khan, D.B. Gupta Road, Paharganj, New Delhi and direct the OP to handover the possession of the same to the complainant without delay.
2. To compensate the complainant to the tune of Rs. 1,50,000/- on account of mental agony and harassment suffered by the complainant due to illegal cancellation of the shop of the complainant.

 

5.           The District Forum ordered for the refund of the amount despite an objection having been taken that the transaction of the matter being of a shop is commercial in which case, relying on Section 2 (1)(d) of the Consumer Protection Act 1986, the complainant is not a consumer which means and to put it differently, they cannot raise a consumer dispute.
6.           Respondents were noticed and in response thereto they have filed the reply resisting the reply.
7.           This matter was listed before this Commission on 10.12.2018 when the counsel for the appellant appeared and advanced his arguments. None appeared on behalf of the respondents. Records have been perused. I have carefully considered the issues involved.
8.           The issue in the case is of purchase of a shop. The ld. Counsel for the appellant maintained that the appeal/complaint is not entertainable on the ground that the complainants are not consumer. We may at this stage advert to the provisions of Section 2(1)(d) of the Act and exception, which is indicated as under:

 

“Consumer means any person who.-

1. Buy any goods for a consideration which has been paid or promised of 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 services of 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 services 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 person who avails of such services for any commercial purpose];

{Explanation- For the purpose of this clause,” commercial purpose” does not include use by person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.

9.           On reading of the above definition it is evident that a person is a consumer who buys any goods for consideration or hires any services for consideration and also includes a user of such goods or a beneficiary of such services. To this vide definition the section itself provides an exclusion and it excludes a person from the definition of consumer who obtains such goods for resale or any commercial purpose or who avails services of any description free of charge or under a contract of personal service for any commercial purpose. The legislature has also provided for a further exception by providing the explanation envisaging that commercial purpose does not include use by a person of goods bought and used by him and the services availed by him exclusively for the purpose of earning his livelihood by means of self employment.
10. On perusal of the application of allotment and the record it is obvious that the respondent/complainant had booked a commercial space with the petitioner developer. Thus, it is clear that the services of the petitioner were hired by the complainant for commercial purpose. There is no evidence on record that the petitioner is covered under the exception carved out by the explanation to Section 2 (1) (d) of the Consumer Protection Act,1986. Therefore, we have no hesitation in holding that the respondent is not a consumer as such he could not have maintained the consumer complaint. The Foras below while allowing the complaint have lost sight of the above material aspect of the case. Therefore, their orders cannot be sustained.
11. The Hon’ble NCDRC in the matter of Mostera Estate Pvt. Ltd. vs. Ardee Infrastructure Pvt. Ltd. as reported in IV [2010] CPJ 299 (NC) is pleased to hold as under:

 

“Complainant alleges that it has availed of the services of the opposite party for providing space in the Mall and paid Rs. 33,01,740/- towards sale consideration. Even if the complainant, a private limited company is treated as a ‘person’ the purchase of space cannot be for earning its livelihood by means of self-employment within the meaning of the explanation not such a case has been specifically pleaded in the complaint. Purchase of space was for commercial purpose. Complaint, therefore, deserves to be dismissed being not maintainable under the Act. Dismissed as such.

 

12. Same view was taken by the Hon’ble NCDRC in the matter of SKG Engineering Pvt. Ltd. vs. Emaar MGF Land Pvt. Ltd. as reported in III [2010] CPJ 260 (NC).
13. In view of the discussion done, the instant appeal is allowed and the complaint since not maintainable is dismissed. Ordered accordingly. Liberty is granted to the complainant to seek exclusion of time spent in this Commission as per the dictum laid down by the Hon’ble Apex Court in Laxmi Engineering works versus P.S.G. Industrial Institute II as reported in II [1995] CPJ 1 (SC).
14. A copy of this order be forwarded to the parties to the case free of cost as statutorily required. A copy of this order be forwarded to the concerned District Forum for information. File be consigned to record.

 

 

(Anil Srivastava)

MEMBER

•