STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Raj Kumar Singh S/o Late Sh. Desraj Singh, Resident of H.No.2, Sector-9, Panchkula-Haryana.

2. Kamla Devi W/o Sh. Raj Kumar Singh, Resident of H.No.2, Sector-9, Panchkula-Haryana.

3. Baljinder Singh S/o Sh. Raj Kumar Singh, Resident of H.No.2, Sector-9, Panchkula-Haryana.

4. Harvinder Singh S/o Sh. Raj Kumar Singh, Resident of H.No.2, Sector-9, Panchkula-Haryana.

……Complainants

V e r s u s

1. Emaar MGF Land Limited, through its Branch Head, Ist Floor, S.C.O. No.120-122, Sector 17-C, Chandigarh-160017.

2. Emaar MGF Land Limited, ECE, House, 28 Kasturba Gandhi Marg, New Delhi 110001.

              .... Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE: MR. JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                  MRS. NEENA SANDHU, MEMBER

Argued by: Sh. Arun K. Kaundal, Advocate for the complainants.

                     Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

              The facts, in brief, are that the complainants, applied for a unit, having  approximately super area of 1665 sq. ft. @Rs.4050 per sq. ft., alongwith one car parking, in Central Plaza, Mohali Hills, Sector 105, Mohali, with a view to earn their livelihood, by way of self employment. At the time of submission of the application form alongwith the requisite fee, the complainants were assured by the Opposite Parties, that possession of the unit, shall be handed over to them, within a period of 30 months, and, maximum within 36 months, from the date of signing the “Buyer`s Agreement”. The complainants, vide allotment letter dated 10.03.2008, were allotted unit no.34, Floor FF (First Floor), measuring 1665 sq. ft., in Central Plaza, Mohali Hills, Sector 105, Mohali, @Rs.4050 per sq. ft,. alongwith one car parking, for a total consideration of Rs.66,95,465/-. It was stated that the complainants made payment of 95% of price of the unit, and the remaining 5% was payable, when due intimation, with regard to the delivery of possession, was to be received by them, from the Opposite Parties.

2.             It was further stated that even after the expiry of 36 months, possession of the unit was not delivered to the complainants, by the Opposite Parties. It was further stated that various letters and reminders, were sent to the Opposite Parties, for delivery of possession of the unit, in question, and payment of compensation, as promised by them, as per the terms and conditions of the “Buyer`s Agreement”, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to handover the physical possession of the allotted unit, to the complainants, within a fixed time frame; pay compensation for delayed payment, as per clause 24.1 of the “Buyer`s Agreement” @Rs.50/- (Rupees Fifty only), per sq. ft. per month of the super area, from 01.04.2011 till 31.05.2012 i.e. Rs.10,82,250/-, alongwith interest @24% P.A., and compensation on delayed possession, till actual possession of the unit; pay compensation, for mental agony and physical harassment, to the tune of Rs.10 lacs; pay damages for depriving the complainants of the use and enjoyment of their money, to the tune of Rs. 5 lacs; and pay cost of litigation, to the tune of Rs.40,000/-.

3.             The Opposite Parties, in their joint written version, stated that the complainant purchased space in Central Plaza, which is a commercial complex, consisting of high end commercial space, shops, restaurants, showrooms etc. It was further stated that the complainants, concealed the factum, that they had applied for the Complete Vertical Unit (CVU), comprising 4 units, from basement, including ground floor to third floor, in Central Plaza, and were allotted 4 commercial space units, vide letters dated 10.03.2008 Annexure RW/A (colly.) It was further stated that the complainants, having applied for 4 commercial space units together, valued at Rs.2,77,67,902/-, in a commercial project, intended to purchase the same, for commercial purpose, for earning huge profits, and, as such, they did not fall within the definition of consumers, as defined under Section 2(1)(d) of the Act. It was further stated that, thus, the Consumer Complaint was not maintainable. It was further stated that the property, being situated at Mohali, and, no cause of action having arisen, to the complainants, within the territorial Jurisdiction of Chandigarh, this Commission had no Jurisdiction, to entertain and decide the complaint. It was admitted that the complainants were allotted the commercial unit, as mentioned, in the complaint, the price whereof was Rs.66,95,465/-. It was also admitted that 95% of the price of the unit, in dispute, was deposited by the complainants, from time to time. It was also admitted that the possession of the said unit, was to be delivered to the complainants, within 36 months, from the date of signing the “Buyer`s Agreement”, but the same could not be delivered, on account of force majeure circumstances. It was further stated that the Opposite Parties were liable to pay compensation for delayed possession @Rs.50/- (Rupees Fifty only), per sq. ft. per month of the super area, for the period of delay, as per the terms and conditions of the “Buyer`s Agreement”, which was executed between the parties. It was further stated that the possession of the unit was expected to be delivered within 6 to 8 months. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.             One of the complainants, namely Baljinder Singh (complainant no.3), submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.

5.             The Opposite Parties, in support of their case, submitted an affidavit of Mohit Kaura s/o Late Sh. VK Kaura, their AGM-Customer Services and Authorized representative, by way of evidence, alongwith which, a number of documents were attached. 

6.             We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.

7.             The core question, that falls for consideration, is, as to whether, the complainants fall within the definition of consumers or not. For proper decision of this question, the provisions of Section 2(1)(d) and Section 2(I)(o), defining the ‘consumer’ and ‘service’  respectively are extracted 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 then 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 purpose]; Added by Act 62 of 2002 w.e.f. 15.03.2003.

[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer 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;]

Section 2(1)(o) defines service as under:-

(o) "service" means service of any description which is made available to potential 16[users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

8.             No doubt, in paragraphs number 1 and 15 of the complaint, it was stated by the complainants, that they had purchased the unit, in question, and deposited their hard earned money, in the hope to earn their livelihood, by means of self employment, by starting some business/venture/ vocation etc. Undoubtedly, the unit, which is the subject matter of this complaint and purchased by the complainants, is commercial, the price whereof is Rs.66,95,465/-. However, in the complaint, it was nowhere stated by the complainants, that they applied for the Complete Vertical Unit (CVU), and were allotted 4 commercial space units, comprising basement (including ground floor) to third floor, in Central Plaza. In paragraph number 2 of the written version, the Opposite Parties, in clear-cut terms, stated that the complainants applied for the Complete Vertical Unit (CVU) comprising 4 units, from Basement (including ground floor), to third floor, in Central Plaza, and were allotted 4 commercial space units, vide allotment letters dated 10.03.2008 Annexure RW/A (colly.). Annexure RW/A (colly.) is the allotment letter dated 10.03.2008, in respect of unit number 34 on BF Floor (“Unit”), in the upcoming Commercial Project “Central Plaza” situated at Mohali Hills, in Sector 105, S.A.S. Nagar, District Mohali, Punjab, in favour of the complainants, the price whereof, is Rs.32,13,085/-. Unit No.34 on GF (“Unit”), was allotted, vide letter dated 10.03.2008, at page 144 of the District Forum file, in the upcoming Commercial Project ‘Central Plaza” situated at Mohali Hills, in Sector 105, S.A.S. Nagar, District Mohali, Punjab, in favour of the complainants, the price whereof, is Rs.81,91,048/-. The Basement Floor and the Ground Floor consist of one unit. The second unit bearing no. 34 on FF Floor (“Unit”) was allotted, vide letter dated 10.03.2008, at page 147 of the District Forum file, in the upcoming Commercial Project ‘Central Plaza” situated at Mohali Hills, in Sector 105, S.A.S. Nagar, District Mohali, Punjab, in favour of the complainants, the price whereof, is Rs.66,68,492/-. The third unit bearing number 34 on SF Floor (“Unit”) was allotted, vide letter dated 10.03.2008, at page 150 of the District Forum file, in the upcoming Commercial Project ‘Central Plaza” situated at Mohali Hills in Sector 105, S.A.S. Nagar, District Mohali, Punjab, in favour of the complainants, the price whereof, is Rs.52,89,872/-. The fourth unit bearing number no.34 on TF Floor (“Unit”) was allotted, vide letter dated 10.03.2008, at page 153 of the District Forum file, in the upcoming Commercial Project ‘Central Plaza” situated at Mohali Hills in Sector 105, S.A.S. Nagar, District Mohali, Punjab, in favour of the complainants, the price whereof, is Rs.42,94,846/-.  Complainant no.1 is Raj Kumar Singh son of late Sh. Desraj Singh, whereas, complainant no.2 Kamla Devi is the wife of Raj Kumar Singh (complainant no.1), complainant no.3 Baljinder Singh, and complainant no.4 Harvinder Singh, are the sons of Raj Kumar Singh (complainant no.1). All the four  members of one family were allotted four commercial units, in the same Plaza, the total price whereof was Rs.2,77,67,902/-. In these circumstances,  the question arises, as to whether, these units, valued at Rs.2,77,67,902/-, were purchased by the complainants, for earning their livelihood, by way of self employment, or, for running the commercial activities, on a large scale, with a view to earn huge profits. The complainants are agriculturist, as is evident, from the application, moved by them, for the allotment of unit, the subject matter of this complaint.  By no stretch of imagination, it could be said that 4 commercial units, aforesaid, were purchased by the complainants, for earning their livelihood, by way of self employment. On the other hand, these were purchased by the complainants, with a view to run commercial activities, on a large scale, to earn huge profits. The services of the Opposite Parties were, thus, availed of by the complainants, for commercial purpose. The complainants, thus, do not fall within the definition of consumers. In Chilukuri Adarsh Vs. M/s Ess Ess Vee Constructions, Consumer Complaint No.111 of 2012, decided on 02.07.2012, by the National Consumer Disputes Redressal Commission, New Delhi,  the complainant entered into an agreement, with the Opposite Party, for the construction of two showrooms, for a consideration of Rs.37,02,000/-. When the possession was not delivered, within the stipulated period, he filed a Consumer Complaint. The National Consumer Disputes Redressal Commission, New Delhi, held that the complainant did not fall within the definition of a consumer under Section 2(1)(d) of the Act, as he availed of the services of the Opposite Party, for commercial purpose. In this very case, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that even a consumer, who had booked more than one unit of residential premises, it amounted to booking of such premises for investment/commercial purpose. Similar principle of law, was laid down, in Jag Mohan Chhabra & Anr. Vs. DLF Universal Ltd., IV (2007) CPJ 199 (NC). Against this decision, Civil Appeal No. 6030-5031 of 2008, was filed, which was also dismissed, by the Supreme Court of India, on 29.09.2008. In M/s Advik Industries Ltd. Vs. M/s Uppal Housing Limited, Consumer Complaint No.146 of 2011, decided on 03.09.2012, the complainant applied for the allotment of second floor of commercial space/unit no.216, having super area of 3493 sq. ft., in “Uppal`s Element 9” in the “Office use” category on 28.06.2006. The National Consumer Disputes Redressal Commission, New Delhi,  held that the complainant did not fall with the definition of a consumer, and, as such, the complaint was not maintainable. In Shri Harnam Singh Vs. Shalimar Estate Pvt. Ltd. and Others, Revision Petition No.1129 of 2012, decided on 29.05.2012, the complainant applied for a showroom, the price whereof was Rs.80 lacs. Alleging deficiency on the part of the Opposite Party, he filed a Consumer Complaint. The State Consumer Disputes Redressal Commission, Haryana, Panchkula, held that he did not fall within definition of a consumer, and, as such, dismissed the complaint, being not maintainable. The National Consumer Disputes Redressal Commission, New Delhi, dismissed the Revision Petition. In the instant case also, since, the complainants are held to be not consumers under Section 2(1)(d), the complaint is not maintainable, and the same is liable to be dismissed, on this ground alone.

9.             The Counsel for the complainants, however, placed reliance on Haryana Urban Development Authority Vs. Usha Vohra, IV (2009) CPJ 305 (NC), Mr. Ravi Kumar Bagga and Anr. Vs. The Shalimar Estates (P) Ltd. and Anr., Complaint Case No.08 of 2011, decided on 02.09.2011, by this Commission, and Sandeep Gulati Vs.  The Shalimar Estates (P) Ltd., and Anr., Complaint Case No.10 of 2011, decided on 02.09.2011,by this Commission, to contend that the Complainants, fall within the definition of consumers, as they purchased the commercial units, referred to above, for earning their livelihood, by way of self employment. In Haryana Urban Development Authority`s case (supra), dispute was only with regard to a booth, the total price whereof was Rs.8,29,354.50P. Alleging deficiency, in rendering service, the complainant filed a complaint, which was accepted. Appeal filed against the same was dismissed and the Revision Petition was also dismissed, holding that it could not be said that the said booth was purchased for commercial purpose. In Mr. Ravi Kumar Bagga and Anr.`s case (supra), the total price of the showroom, purchased by the complainants, was Rs.28,87,464/-, and, they, in clear-cut terms, stated that they had purchased the same, for earning their livelihood, by way of self employment. In Sandeep Gulati `s case (supra), the complainant booked a showroom having super area of 400 sq. ft, which was allotted to him. He stated, in the complaint, that he intended to purchase the showroom, for running his business, to earn his livelihood, by way of self employment. No evidence was produced by the Opposite Parties, in those cases, that the complainants Mr. Ravi Kumar Bagga & Anr. and Sandeep Gulati, had also booked the other commercial showrooms, for a total consideration of Rs.2,77,67,902/-. In the instant case, as stated above, 4 commercial units, referred to above, allotted to the complainants, valued at Rs.2,77,67,902/-, could not, by any stretch of imagination, be  said to have been purchased, by them, for the purpose of earning their livelihood, by way of self employment. On the other hand, the same were purchased by them, for running commercial activities, on a large scale, for earning huge profits. No help, therefore, can be drawn by the Counsel for the appellants, from Haryana Urban Development Authority`s, Mr. Ravi Kumar Bagga and Anr.`s and Sandeep Gulati `s cases (supra). The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 

10.          It is settled principle of law, that a person who approaches the Court or Fora, by concealing the material facts, which tantamounts to fraud, is not entitled to any relief and can be thrown out, at any stage of the proceedings. In S.P Chengalvaraya Naidu Vs. Jagannath, AIR 1994 SC 853,  the principle of law, laid down, was to the effect, that the Courts of law are meant for imparting justice, between the parties. One, who comes to the Court, must come with clean hands. A person whose case is based on falsehood or concealment of material facts is not entitled to any relief and can be thrown out, at any stage of the litigation. Similar principle of law, was laid down, in S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.[(2004)7SCC166], and G.M. Haryana Roadways vs Jai Bhagwan & Anr, 2008(3) SCR1156. In S.P Chengalvaraya Naidu`s case (supra), it was further held as under:-

"Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law, that a judgment or decree obtained by playing fraud on the Court is a nullity and nonest in the eyes of law. Such a judgment/decree by the first Court or by the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings”.

11.          Since, there was deliberate concealment of material fact, by the complainants, in the complaint, regarding the allotment of 4 commercial units to them, valued at Rs.2,77,67,902/-, as is proved from the documents, on record, i.e. the allotment letters dated 10.03.2008 RW/A (colly.), they could not be said to be entitled to any relief.

12.          For the reasons recorded above, the complaint is dismissed, being not maintainable, with no order as to costs.

13.          The complainants shall, however, be at liberty, to resort to any other remedy, which may be available to them, under the provisions of law

14.          Certified Copies of this order, be sent to the parties, free of charge.

15.          The file be consigned to Record Room, after completion

Pronounced.

November 8, 2012

Sd/-

[JUSTICE SHAM SUNDER(RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg