Delhi

StateCommission

CC/1259/2017

NIPUN AGGARWAL & ANR - Complainant(s)

Versus

TDI INFRASTRUCTURE PVT. LTD. - Opp.Party(s)

MANJIT SINGH

21 Aug 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

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

Date of Arguments : 21.08.2017

Date of Decision : 01.09.2017

Complaint No. 1259/2017

 

 

IN THE MATTER OF:

 

1. Nipun Aggarwal,

S/o Shri Darshn Aggarwal.

2. Kiran Aggarwal,

W/o Shri Darshan Aggarwal,

 

Both resident of :

425, Kohat Enclave,

Pitampura,

Delhi-110034.                                                         ........Complainants

 

VERSUS

 

TDI Infrastructure Pvt. Ltd.,

(earlier known as Intime Promoters Pvt. Ltd.)

UG Floor, Vandana Building,

11, Tolstoy Marg, Connaught Place,

New Delhi-110001.

Through its Managing Director                                       …….…Opp. Party

 

 

Complaint No. 1260/2017

 

 

IN THE MATTER OF:

 

Shobhita Jindal,

W/o Late Sh. Vinod Jindal,

R/o 221, Rajdhani Enclave,

Pitam Pura,

Delhi-110034.                                                                   ........Complainant

 

VERSUS

 

 

 

TDI Infrastructure Pvt. Ltd.,

(earlier known as Intime Promoters Pvt. Ltd.)

UG Floor, Vandana Building,

11, Tolstoy Marg, Connaught Place,

New Delhi-110001.

Through its Managing Director                                                     …….…Opp. Party

 

CORAM

 

SH. ANIL SRIVASTAVA, MEMBER

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

 

Present  :   Sh. Manjit Singh Ahluwalia, Counsel for the Complainants.

 

PER  :  SHRI ANIL SRIVASTAVA, MEMBER

          Both complaints having identical facts of the case are being disposed of by a common order, taking CC No.1259/2017 as the lead case.

          Nipun Aggarwal and Kiran Aggarwal, son and mother, residents of New Delhi, hereinafter referred to as complainants, have filed instant complaint against the M/s. TDI Infrastructure Pvt. Ltd. & Ors, for short opposite parties, alleging deficiency in service on the part of the opposite party in respect of commercial unit booked by the complainants in the development project in TDI Mall, TDI City, bearing Shop number UGP-95, Kundli, Distt. Sonepat.  The grievance of  the complainants are that pursuant of the allotment, they have made a substantial payment to the opposite party after taking loan from the Punjab National Bank but the opposite party has failed to fulfil their promise/assurance of construction and delivery of the shop promises, within the agreed period of time.

          The complainants have prayed for relief as under :

1. Direct the OP to pay a minimum sum of money calculated atleast @Rs.8500/- per sq.ft x super area of the Shop to the buyer to enable the complainant to purchase another Shop on their own. 
382.  
2. Direct the OPs jointly and severally to return the total amount paid so far with interest @36% monthly compounded interest per annum from the date of first payment made as the builder has misused the money paid by the complainant for its commercial purposes and the complainant has also suffered financial losses.

AND

3. Direct the OPs jointly and severally to pay adequate compensation to the complainant towards damages for the physical and mental torture, agony, discomfort, undue hardships and loss of livelihood caused to the buyer and her family as a result of the above acts of omission on the part of the OP, as this Hon’ble  Commission may determine.
342.  
4. Direct the OPs jointly and severally to pay a sum of Rs.1,00,000/-to the complainant forwards the cost of litigation.

          The matter was listed for admission hearing on 21.08.2017 when the ld. Counsel made his submissions. Records of the case have been perused.

          In the first instance clarification was sought from the ld. Counsel regarding  maintainability of the compliant as prima facie it appears that the shop was booked by the complainant jointly in a commercial complex being developed by the opposite party and therefore services alleged to have been availed by the complainants, were availed for commercial purpose and consequently in view of the exclusion provided under Section 2(1)(d)(ii), the complainants do not appear to be consumer and as such this cannot raise a consumer dispute by filing a consumer complaint. The ld. Counsel has contended that the case of the complainants is covered under the explanation to the Section 2(1)(d)(ii) which gives a restricted meaning to the commercial purpose.  It is argued that the complainants booked the premises in question with the intention to earn their livelihood.  Therefore if one goes 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 service for the commercial purpose, unless their case is covered under the Section 2(1)(d) of the Consumer Protection Act 1986.

          Section 2(1)(d) of the Act defines the term “Consumer” as under:

(d) “consumer” means any person who,—

(i)    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

 

(ii)      [hires or avails of] any services 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 services other than the person who ¹² [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 ¹³ [but does not include a 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;]

          On reading of the above, it is clear that in order to avail the benefit of  the explanation, the onus lies on the complainants to show that they have availed the service 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 within the explanation, the records of the case have been perused again.

          On perusal of the averments contained in the complaint, it is clear that it nowhere states that subject unit was booked exclusively for the purpose of earning livelihood by way of self-employment.  It only avers that the unit was booked for earning livelihood. Therefore, in’ my considered view, the case of the complainants is not covered within the exclusion clause. Decision of the Hon’ble NCDRC in the matter of Inder Nath Mehra & Ors. Vs. Purearth Infrastructure Ltd. decided on 15.05.2015 is referred to.  The commercial unit was booked by the complainants. It is obvious that the services of the opposite party were availed for commercial purpose and as such, in view of the exclusion carved out under Section 2(1)(d)(ii) of the Consumer Protection Act 1986, the complainants are not the “consumers” and as such they cannot maintain the consumer complaint.

          In view of the above discussion, the instant complaint is not maintainable.   Hence, the complaint is rejected with the liberty to the complainants to avail their remedy by moving appropriate forum.

          Ordered accordingly.

          Copy of the order be forwarded to the parties.

          On these facts the complaint number 1260/17 filed by Shobhita Jindal Vs. TDI Infrastructure Pvt. Ltd. x Ors. stands disposed of accordingly.

          Registrar of this Commission is directed to place a certified copy of this order in the case file bearing number C-1260/2017 for records.

          Both the files be consigned to Record Room.

         

(ANIL SRIVASTAVA)

  MEMBER