Chandigarh

DF-II

CC/192/2021

Parteek Arora - Complainant(s)

Versus

The Shalimar Estates Pvt. Ltd. - Opp.Party(s)

Devinder Kumar adv

17 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	192 of 2021
Date  of  Institution	:	19.03.2021
Date   of   Decision	:	17.04.2023

 

 

 

 

 

Parteek Arora son of Sh.P.P.Arora, aged about 32 years, resident of Flat No.101, B-Block, Springdale Tower-II, VIP Road, Zirakpur, SAS Nagar, Mohali.  

            …..Complainant

 

Versus

 

1]  The Shalimar Estates (P) Limited, Regd. Office at House No.1081, Sector 8-C, Chandigarh through its Managing Director.

 

2]  Mr.R.K.Aggarwal, Managing Director, Shalimar Estates Pvt. Ltd., r/o House No.1084, Sector 8-C, Chandigarh-160009

3]  Mrs.Kamlesh Aggarwal, Managing Director, Shalimar Estates Pvt. Ltd., r/o House No.1084, Sector 8-C, Chandigarh-160009.

 

    ….. Opposite Parties

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA                 MEMBER

                               

Argued by   :  Sh.Devinder Kumar, Counsel of complainant.

    Sh.Varun Bhardwaj, Counsel of OPs

 

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

             The complainant filed present complaint pleading that the complainant purchased one Showroom in the project of OPs i.e. Shalimar Plaza, I.T. City, Mohali., to earn his livelihood by way of self employment, which was earlier in the name of Abha Jain & Dulari Jain.  It is stated that vide Acceptance-cum-Demand Letter dated 28.2.2006, an amount of Rs.10,80,000/- was paid to them (Ann.C-3).  It is also stated that under the directions of OPs, the complainant paid the said amount of Rs.10,80,000/- to Abha Jain & Dulari Jain (Ann.C-4 to C-6) and Rs.20,000/- was paid to OPs as transfer fee on 25.4.2006.  Thereafter the said Showroom was transferred in the name of complainant vide letter dated 1.5.2006 (Ann.C-7).  The complainant further make payment of Rs.6,50,000/- to the OPs as per their directions against receipts (Ann.C-8 to C-12) and in that way, the complainant made payment of Rs.17,30,000/- against the said showroom. It is submitted that the balance amount was to be paid after handing over of possession by the OPs. It is pleaded that the complainant visited the site but there was no significant progress in the project.  The complainant vide letter dated 18.12.2012  (Ann.C-13) requested the OPs to inform about the development of the project and date of handing over the possession of the showroom, it was not replied by them.   It is pleaded that the OPs have abandoned the construction of the Mall and even the allotment of site of Mall in favour of Shalimar Estates Private Limited has been cancelled by the Punjab Small Industries and Export Corporation Ltd., Chandigarh (PSIEC) due to default in payment by OPs and still the OPs have withheld the money paid by complainant.  It is further pleaded that the OPs are neither willing to complete the project and handover the possession of the showroom nor refunded the money of the complainant.  Hence, this complaint has been preferred alleging the said act & conduct of the OP as deficiency in service and unfair trade practice, which caused loss and harassment to the complainant.  

 

2]      The OPs have filed written version stating that the complaint is not maintainable as it relates to the commercial property for commercial activities which are not covered under the definition of ‘consumer’.  On merits, while admitting the allotment of the showroom in the name of complainant, it is stated that the complainant is earning handsomely from their other business and purchased the rights of commercial showroom from some other person which clearly shows that he made an investment to earn commercial profit by way of appreciation in price. It is stated that the project was delayed due to various persons, who have not paid the due installments in time due to which the OPs suffered losses.  It is submitted that the construction of entire ten storey building including two basements has already been completed by OPs; all outer and inner walls, partitions, plasters, base floorings etc. are also complete and only finishing works and fittings of electrical & air-conditioning works are left.  It is also submitted that OPs have not abandoned the project; however the further progress in the project got stalled awaiting decision in the arbitration proceedings between the OP and PSIEC.  It is further submitted that the OPs are trying to revive the project as soon as possible which got delayed due to arbitration proceedings between the OP and PSIEC pending before the Hon’ble Punjab & Haryana High Court. Denying all other allegations and pleading no deficiency in service, the OPs have prayed for dismissal of the complaint.

 

3]      Replication has also been filed by the complainant thereby controverting the assertions of OP made in its reply.

4]      Parties led evidence in support of their contentions.

5]      We have heard the ld.Counsel for the parties and have gone through the entire record.

6]      The complainant has himself stated that he has been allotted Showroom at Shalimar Plaza, I.T. City, Mohali and he intends to use this Showroom to earn his livelihood by way of self-employment. Thus, as per pleading of the complainant, he is ‘consumer’ as defined under Section 2(7) of The Consumer Protection Act, 2019.

 

7]      Now the question which arises before this Commission is that whether the complainant is a ‘consumer’ under the definition provided under Section 2(7) of The Consumer Protection Act, 2019.

 

8]      In order to find out answer to this question, we have to study the definitions of ‘consumer’ provided under The Consumer Protection Act, 1986 and The Consumer Protection Act, 2019.  Hence, we needs to study the “Explanation” provided to definition of ‘consumer’ under Section 2(d) of The Consumer Protection Act, 1986 and the “Explanation” provided to definition of ‘consumer’ under Section 2(7) of The Consumer Protection Act, 2019, which are reproduced hereunder:-

        Section 2(d) of The Consumer Protection Act, 1986:-

 

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So, the comparative study of ‘Explanation’ to Section 2(d) of The Consumer Protection Act, 1986 and ‘Explanation’ to Section 2(7) of The Consumer Protection Act, 2018 is as under:-

         

    [A]     Explanation under Section 2(d) of The Consumer Protection Act, 1986, provides that ‘For the purposes of this clause, the expression ‘commercial purpose’ does not include use by a 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.

 

[B]     Explanation under Section 2(7)(a) of The Consumer Protection Act, 2019, provides that ‘For the purposes of this clause, the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment.

 

9]      So the main difference between the Explanations, provided under the definition of ‘consumer’ under Section 2(d) of The Consumer Protection Act, 1986 and under Section 2(7) of The Consumer Protection Act, 2019 is that The Consumer Protection Act, 1986 provides benefit of “Explanation” to definition under Section 2(d) of being ‘consumer’ was granted to both the categories of complainants, who bought goods and to the complainants who availed services exclusively for the purpose of earning his livelihood by means of self-employment. But the “Explanation” to definition under Section 2(7) of The Consumer Protection Act, 2019 gives benefit of being ‘consumer’ only to the complainants, who “buy goods” but not to the complainants who “avail services” in connection with “commercial purpose”. So under the new Act i.e. The Consumer Protection Act, 2019, with regard to “commercial purpose” a complainant who ‘buys goods’ exclusively for the purposes of earning his livelihood by means of self-employment is a ‘consumer’; but a complainant who ‘availed services’ exclusively for the purpose of earning his livelihood by means of self-employment is not a ‘consumer’.  Therefore, it is clear that in the present complaint, the complainant is not a ‘consumer’ being ousted by the “Explanation” (a) to definition of ‘consumer’ under Section 2(7) of The Consumer Protection Act, 2019.

 

10]     The complainant relied upon the judgment of Hon’ble State Consumer Disputes Redressal Commission, U.T, Chandigarh passed in C.C. No.11 of 2015 titled as Ramanjit Kaur Batth & Anr. Vs. The Shalimar Estates Pvt. Ltd. & Anr., decided on 02.09.2015. However, the same is not applicable to the present case because the said case was decided in the year 2015 when The Consumer Protection Act, 1986 was in force and benefits of “Explanation” regarding exemption to “commercial activity” to definition under Section 2(d) of The Consumer Protection Act, 1986 provided to both categories of persons who “bought goods” and “availed services” for earning his livelihood by way of self-employment but the present complaint is filed in the year 2021 when The Consumer Protection Act, 2019 is in force and the benefit of “Explanation” (a) to definition under Section 2(7) of The Consumer Protection Act, 2019 provided to only one category of person who “bought goods” for earning his livelihood by way of self employment but not to the other category of persons who “availed services” for earning his livelihood by way of self employment in relation to “commercial purpose”.

        Reliance has been placed on the latest decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Consumer Complaint No.886 of 2020 titled as M/s. Freight System (India) Private Limited Vs. Omkar Realtors & Develop Private Limited & Anr., decided on 25.01.2021.

  

11]     We are also of the opinion that in case of “commercial purpose” the “services” are not included in the definition of “consumer” under The Consumer Protection Act, 2019 and it has been excluded, therefore, the present compliant is not maintainable. It is also opined that if the complaint involving ‘commercial activity” of “services” as in the present complaint, is entertained, then it would amounts to evasion of court fee to be paid before the Civil Court and this will also amount to consume the time and energy of Consumer Commission by non-consumers instead of using that time & energy for the benefit of consumers.

 

12]     Taking into consideration the above discussion & findings, the present complaint being not maintainable is hereby returned to the complainant being dismissed. No order as to costs. The complainant shall, be at liberty, to approach an appropriate Authority/Court in the matter and the time spent herein would stand commuted/condoned for the purpose of limitation.

13]     The pending application(s) if any, stands disposed of accordingly.

14]     Office is directed to return the complaint to the complainant against proper receipt and after retaining its copy.

        Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced

17^th April, 2023                                                                        

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

(B.M.SHARMA)

MEMBER