Delhi

StateCommission

CC/10/141

R.R. BUILDERS & FURNISHERS PVT. LTD. - Complainant(s)

Versus

EMAAR MGF LAND LTD. - Opp.Party(s)

27 Nov 2015

ORDER

 

IN THE STATE COMMISSION

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

 

Date of Argument: 19.11.2015

Date of Decision: 27.11.2015

 

Complaint Case No.-141/2010

 

        In the Matter of:

               

R.R.Builders & Furnisher (P) Ltd. 19, Furniture Block, Kirti Nagar, New Delhi-110015 (Through Director)                                                                                 ……Appellant     Versus    M/s Emaar, (MGF) Land Ltd. ECE House 28, Kasturba Gandhi Marg, New Delhi-110001 (Through Director)   Also at: M/s Emaar (MGF) Land Ltd. S.C.O 1220-122, First Floor, Sector 17C, Chandigarh Punjab-160017                                                         …….Respondent

CORAM

Justice Veena Birbal, President

Salma Noor, Member

O.P. Gupta, Member (Judicial)

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

2.   To be referred to the reporter or not?

 

O.P. Gupta, Member (Judicial)

1.             The present complaint has been filed on the allegations that complainant is carrying on the business of Furniture. In 2006 representative of OP approached the complainant and represented that OP was providing plot/property/flat in Central Plaza Mall, Mohali Hills, Mohali Chandigarh in pre-launched stage and the work will be finished within two years. The representative of OP assured the complainant to invest and get incentive/discount @ 6% on the total purchase price. The complainant agreed to book plot worth Rs. 1,41,14,301/- on 03.10.2006 the complainant made payment of Rs. 30,00,000/- towards booking amount of plot no. 61, Central Plaza, Sector- 105, S.A.S. Nagar, Distt. Mohali, Punjab. He put signatures on some paper carried by the representative of OP. Thereafter, the OP neither provided any further payment schedule nor started work to finish the project. On 11.01.2008 the complainant sent mail and asked about further payment schedule. The OP neither replied the same nor sent payment schedule. On 06.06.2008 the complainant sent legal notice asking for payment of incentive and interest. On 10.02.2010 the OP issued letter of payment schedule. On the same date the OP sent a letter for cancellation of unit of the complainant. On 06.04.2010 complainant issued letter demanding booking amount with interest. The OP fraudulently and dishonestly induced complainant to make advance payment. Hence, this complaint for directing OP to pay Rs. 30,00,000/- which was the booking amount, to pay Rs. 1,00,000/- as mental agony and costs of the complaint.

2.             The OP filed written statement raising preliminary objections that complainant approached OP for booking of commercial unit. It booked the property for running its office. As per OPs understanding it was to construct a building consisting of basement, ground to third floor in said unit. Total sale consideration was Rs. 2,47,06,031/-. The complainant paid Rs. 30,00,000/- towards part payment of the booking amount of Rs. 35,08,445/-. Provisional allotment letter dated 08.05.2007 was sent with all the details to the complainant including payment schedule. Allegations of pre-launch were denied. The OP demanded balance booking amount and next instalment and the amount was to be deposited by 31.05.2007. The complainant failed to comply with the same. Due to non deposit of entire booking amount and agreed construction linked instalments, OP was constrained to cancel the booking and forfeit the earnest money vide letter dated 17.12.2009 and 10.02.2010. This Commission has no territorial or pecuniary jurisdiction. There is no cause of action. On merits it denied the allegations of the complainant and reiterated the objections taken by OP.

3.             In its evidence the complainant filed affidavit of Sh. Ratinder Singh Bhatia, one of the Director of the complainant. The same referred to board resolution for filing complaint as Ex. CW1/1. Copy of certificate of incorporation as Ex. CW1/2. It referred to copy of e-mail dated 11.01.2008 as Ex. CW1/3, Copy of notice as Ex. CW1/4 and postal receipts as Ex. CW1/5 & Ex. CW1/6, letters dated 10.02.2010 sent by OP as Ex. CW1/7 and Ex. CW1/8, copy of letter dated 05.04.2010 sent by complainant as Ex. CW1/9 and postal receipt as Ex. CW1/10.

4.             On the other hand, the OP filed affidavit of its AR Sh. Nikhil Srivastava. The same referred to board resolution as Ex. RW-1/1, application as Ex. RW-1/2, letter dated 08.05.2007 as Ex. RW-1/3, request letter as Ex. RW-1/4 and copy of cancellation letter as Ex. RW-1/5.

5.             Both the parties have filed written arguments. The same have been carefully perused. Oral arguments have been heard. The complainant has relied up decision in A.P. Gupta Vs. Skipper Towers (P) Ltd., 1992 (1) CPR 817 Delhi. That was the case of hiring services of OP to provide flats/shops. The same is not applicable. The present case is of booking of a plot. It has also relied upon decision in S.A.S. Films Vs. Bhatia Sehgal Construction Corporation, 1 (1992) CPJ 407. In that case the OP was providing accommodation by building multi-storyed building. That is again distinguishable on the same reasoning as that of A.P. Gupta (Supra).

6.             The written arguments of the OP referred to decision of this Commission in Preet Singh Vs. M/s Unitech Limited complaint no. 286/10  decided on 28.09.2010. The same pertains to territorial jurisdiction.

7.             The OP has also relied upon decision of National Commission in Travel India Bureau Pvt. Ltd. Vs. Huda, II (2008) CPJ 329 in which it was held that purchase of dwelling unit not for earning livelihood by means of self employment, relates to commercial purpose. The same is excluded from definition of Consumer and complaint before Consumer Forums is not maintainable.

8.             The OP has also relied upon decision of National Commission in Monstera Estate Pvt. Ltd. Vs. ARDEE Infrastructure Pvt. Ltd., IV (2010) CPJ 299 in which it was held that even if a private limited company is treated as a ‘person’ purchase of space by company cannot be for earning its livelihood. Purchase of space is for commercial purpose and the complaint was dismissed.

9.             During oral arguments, the counsel for the OP relied upon latest decision of National Commission in first appeal No. 850/2013 titled as EMAAR (MGF) Land Ltd. Vs. M/s Banga Constructions Pvt. Ltd.  decided on 24.03.2015. The said decision pertains to the unit of OP and same project known as Central Plaza, Mohali Hills, SAS Nagar, Mohali, Punjab. The National Commission held that units acquired by the complainant were purely for commercial purpose and therefore by no stretch of imagination the complainant could be said to be a consumer within the meaning of section 2(1)(d) of Consumer Protection. It is trite with the words ‘commercial purpose’ used in the section means that goods purchased or services hired are used or proposed to be used in any activity directly intended to generate profit. It was manifest that units booked by complainant were meant to be used in some activity directly intended to generate profits. Therefore, it could not be held that the units were acquired by the complainant for earning livelihood by means of self employment falling within the ambit of explanation of section 2(1)(d). Hence, the complaint was not maintainable and complainant was not a consumer. The complaint was dismissed.

10.            The case law cited by the OP is squarely applicable to the facts of the present case. Hence, there is no option but to dismiss the complaint. Accordingly, the complaint is dismissed. Anyhow, the complainant is given liberty to approach any appropriate forum, except a Consumer Fora, for redressal of its grievance and seek exclusion of time spent in the present complaint in terms of decision of Hon’ble Supreme Court in Luxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583.

                A copy of this order be sent to both the parties free of costs as per rules.

                File be consigned to record room.   

(Justice Veena Birbal)

President

 

(Salma Noor)

Member

 

(O.P. Gupta)

Member (Judicial)