Haryana

StateCommission

CC/100/2015

BACHITTER SINGH - Complainant(s)

Versus

UNIVERSAL BUILDWELL PVT.LTD. AND OTHERS - Opp.Party(s)

R.C.SHARMA

15 Dec 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                      

                             Consumer Complaint No.     100 of 2015

                                      Date of Institution                  09.06.2015

                                       Date of Decision                             15.12.2015

 

 

1.      Bachitter Singh son of Sh. Ram Singh, resident of House No.5203, Modern Housing Complex, Manimajra, U.T, Chandigarh.

 

2.      Ms. Ashu Singh wife of Bachitter Singh, resident of House No.5203, Modern Housing Complex, Manimajra, U.T, Chandigarh.

                                      Complainants

Versus

 

M/s Universal Buildwell Private Limited having its Corporate Office at Universal Trade Tower, 8^th Floor, Sector 49, Gurgaon, Sohna Road, Gurgaon.

Opposite Party

 

 

CORAM:   Hon’ble Mr. Justice Nawab Singh, President.

                   Mr. B.M. Bedi, Judicial Member.

                   Mr. Diwan Singh Chauhan, Member.

                                                                                                               

 

For the parties:   Sh. Bachitter Singh, Complainant in person with Sh. R.C. Sharma, Advocate

                             Opposite Party ex parte

 

                                                   O R D E R

 

NAWAB SINGH J, (ORAL)

 

          Bachitter Singh and Ashu Singh-complainants (husband and wife) applied for office space with Universal Buildwell Private Limited, Gurgaon-opposite party (for short, ‘Builder’) for the purpose of earning livelihood by means of self employment.  Bachitter Singh is Architect and his wife Ashu Singh is an Interior Designer and Decorator by profession. The basic sale price of the office space was Rs.65,10,000/-.  Buyer’s Agreement (Exhibit C-1) was executed between the complainants and the builder on September 25^th, 2010.  The builder allotted Unit No.530 (Office Space) super area 1050 sq. ft. on fifth floor in Universal Square to the complainants vide allotment letter dated 13^th October, 2010 (Exhibit C-2).   In all, complainants paid Rs.38,54,154/- vide receipts Exhibit C-3 to C-8.  The payments were made as per the Schedule.  As per Clause 15 of the Buyers Agreement, the possession of the office space was to be delivered within 36 months of the execution of the agreement, that is, by September 24^th, 2013. Inspite of repeated requests made by the complainants to the builder to handover the possession of the office space, it failed to do so because no construction work was started by the builder.  Complainants also made requests to the builder to refund the amount but they did not pay any heed.  Complainants have filed the present complaint averring that since the builder failed to handover the possession of the office space to them, it be directed to refund the deposited amount, that is, Rs.38,54,154/- alongwith interest at the rate of 18% per annum from the date of its respective deposit; Rs.4,00,000/- as compensation for deficiency in service and Rs.30,000/- towards litigation expenses

2.      The builder in its reply pleaded that complainants are not consumers as provided under Section 2 (d) of the Consumer Protection Act, 1986 (for short, ‘the Act’) because the office space was in the commercial project with the sole purpose of investment.  Booking of the office space bearing No.530 admeasuring super area 1050 sq. ft on fifth floor of the project has not been denied.  Application No.274 dated September 16^th, 2010 of the complainant has also been admitted.  Buyers Agreement entered into between the parties has also not been denied. Allotment letter (Exhibit C-2) was also admitted to be issued by the builder to the complainants.  The builder applied with concerned authorities, that is, District Town and Country Planning (DTCP) to sanction building plan.  In earlier drawing sanctions, there were three basements in the project in order to accommodate extra parking space in abundance.  The drawing sanctions were submitted with DTCP in November, 2012 but later on the drawings were amended on the directions of the DTCP.  Accordingly, basements in the said project were reduced from three to two.  On account of that, possession could not be handed over in time. 

3.      The reply was filed by Sh. Shailender Mohan, Senior Manager (Legal) on behalf of the Builder on September 10^th, 2015.  Thereafter on the last four consecutive dates of hearing, nobody put in appearance on behalf of the builder.  Hence, builder was proceeded ex parte. 

4.      The complainants in their evidence examined Bachitter Singh, complainant as CW1 and produced documents. 

5.      The question for consideration is as to whether the builder defaulted in delivering the possession of the office space to the complainants or not?

6.      Indisputably, the complainants had applied for office space with the builder.  Buyers Agreement (Exhibit C-1) was executed between the parties on September 25^th, 2010. The basic sale price of the office space was Rs.65,10,000/-.  Unit No.530, super area 1050 sq. ft on fifth floor was allotted to the complainants.  The complainants paid Rs.38,54,154/- as per the schedule.   As per clause 15 of the Buyers Agreement, the possession of the office space was to be delivered and handed over to the complainants by September 24^th, 2013 but the builder failed to do so and it was certainly a case of deficiency in service.  Bachitter Singh-CW1 reiterated the facts mentioned in the complaint.  It has been stated by him that he is an Architect and his wife Ashu Singh is an Interior Designer and Decorator by profession. So, they had purchased the office space for the purpose of earning livelihood by means of self employment.  It cannot be said by any stretch of imagination that the property was to be used for commercial purpose.

7.      Section 2 (i) (d) of the Act defines ‘consumer’. 

          (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 '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 a person who avails of such services for any commercial purposes;

          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;”    

 

8.      A bare perusal of the provisions of Section 2(i)(d) reveals that for the purposes of this Act a “Consumer” means : (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration (iii) but does not include a person who buys such goods for resale or for any commercial purpose. 

9.      The expression “commercial purpose” is not defined in the Act as such.  In common parlance, the term ‘commercial’ indicates that when the goods are bought by a person not for his direct consumption but used for profit making, it may be said that goods are used for commercial purpose.  However, the Explanation added later to Section 2(d)(i) by Ordinance/Amendment Act, 2003, excludes one category of profit making exercise from the purview of ‘commercial purpose’, namely, when the goods bought by a person are used “exclusively for the purposes of earning his livelihood by means of self-employment.  So, the plea raised by the builder that complainants are not consumers, is hereby repelled.

10.    The stand taken by the builder that possession could not be delivered to the complainants on account of amendment in the drawings on the directions of the DTCP, is not acceptable because no evidence has been led by the builder to prove the same.  Complainants had paid the money in the hope of getting office space of which they have been deprived of.  From the complaint and the evidence led by the complainants, it is proved to the hilt that the builder was deficient in service for not delivering the possession of the office space to the complainants within the stipulated period.

11.    In view of above, the complaint is allowed. M/s Universal Buildwell Private Limited, Gurgaon-builder is directed to pay Rs.38,54,154/- (Rupees Thirty Eight Lac Fifty Four Thousand and One Hundred Fifty Four Only) to the complainants, alongwith interest at the rate of 12% per annum from the date of its respective deposits till the date of realization; Rs.50,000/- as compensation for rendering deficient services and Rs.20,000/- towards litigation expenses. The entire amount be paid by the builder within a period of 45 days, from the date of receipt of the order, otherwise, it will carry interest at the rate of 18% per annum, till realization and it calls for pointed notice that under Section 27 of the Act, if the opposite party fails or omits to comply with this order, it shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine or with both.           

  

 

December 15th, 2015

Diwan Singh Chauhan Member

B.M.Bedi Judicial Member

Nawab Singh President

 

U.K