Delhi

StateCommission

A/106/2015

M/S UNI STEEL CORPORATION - Complainant(s)

Versus

M/S PURE EARTH INFRASTRUCTURE LTD. & ANR. - Opp.Party(s)

16 Mar 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 16.03.2018

 

                                                                                                             Date of Decision:02.04.2018

 

 

FIRST APPEAL NO-106/2015

 

 

IN THE MATTER OF:

 

          M/s Uni Steel Corporation

          706, Kunde Wallan

          Ajmeri Gate,

          Delhi-110006

          Through its partner                                                        ….Appellant                                                                                                                            

VERSUS

 

 

1. M/s Pure Earth Infrastructure Ltd.

5^th Floor, 4, Rajender Place,    

New Delhi-110008                                                         ….Respondent no-1

 

2. M/s Kailash Nath Associate, 1006,

Kanchanjunga Building,

18, Barakhamba Road,

New Delhi                                                                      ….Respondent no-2

 

 

HON’BLE  SH. O.P. GUPTA, MEMBER(JUDICIAL)

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER

 

 

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

 2.   To be referred to the reporter or not?                                               Yes

 

 

Present:    Sh. Subhash Garg, Counsel for the appellant

                   Sh. Gaurav Mitra, Sh. Lokesh Chopra and Ms. Rashmita Roy, Counsel for the respondents

 

 

PER: SHRI ANIL SRIVASTAVA, MEMBER (G)

JUDGMENT

1.            The orders passed by the District. Forum-VI (District New Delhi) in CC-525/2008 in the matter of M/s. Uni Steel Corporation versus M/s. Pure Earth Infrastructure Ltd. and M/s. Kailash Nath Associated, dismissing the complaint, holding no deficiency on the part of the respondents, has been assailed before us in appeal filed by the M/s. Unisteel Corporation, for short appellants, under Section 15 of Consumer Protection Act 1986 (the Act) against M/s. Pure Earth Infrastructure Ltd., hereinafter referred to as Respondents, praying for the relief as under:-

 

1. Set aside and reverse the impugned order dated 19.09.2014 passed by the Ld. Forum No.IV in CC No.525/08.
2. Direct the respondents/builders/poromoters or their successors in interest, if any, to allot and deliver a flat equivalent to the value and size of the flat at the booking price prevailing in 1989 of alternatively to direct the respondents etc. to pay the compensation of Rs. 60Lac. Being assessed as per the current market price.
3. Direct the respondents etc to pay compensation to the tune of Rs. 50,000/- to the appellant for the deficiency in service/unfair trade practices of the respondents as well as for the mental pain and agony suffered by the appellant.
4. Direct the respondents etc. to also pay the costs of litigation throughout amounting to Rs.50, 000/-.
5. Issue any other or further directions which this Hon’ble Commission of the case in favour of the appellants to meet the ends of justice

 

2.           Facts of the case necessary for the disposal of the appeal are these.
3.           The appellant/complainant had booked with the respondent No.2 a 400 sq. ft. office space in the basement of their proposed project, namely, “DCM TECHNO PLAZA” Techno Business Parks, situated at DCM Complex, KishanGanj, Bara Hindu Rao, Delhi 110006, on 06.05.1989 by depositing Rs.86,000/-. Subsequently a sum of Rs.26,000/- was adjusted against other booking, leaving only Rs.60,000/- as deposited against the booking done. Later, the said project was taken over by Respondent No.1.
4.           In the meanwhile the MCD took a decision permitting basement only for car parking, which means, and to put it differently, not for the office space for which the complainant/appellant had done the booking. The respondents had accordingly sent a communication to the appellant on 28.12.2006 cancelling the booking and refunding the amount. The contents of the letter so sent is reproduced below:

 

          “In this regard we further refer to the letter of the erstwhile builders bearing No.KNA-1997-98/26 dated 31.03.1997 whereby they had informed you that the Municipal Corporation of Delhi, while sanctioning the building plans, approved use of basement only for parking of vehicles and for providing services to the complex. Since the said provisional booking was subject to sanction of the building plans the erstwhile builders cancelled the said booking and offered to refund in full the amount paid by you.

          Accordingly, we are refunding the full amount paid by you against the said provisional booking along with the interest @ 10% from the date of payment till date as per the enclosed statement of Account, after deduction of tax at source on the amount of interest vide Cheque No.000021 dated 26.12.2006 drawn on HDFC Bank Ltd. For Rs.1,54,029/-. Please provide your Permanent Account Number for forwarding you the TDS Certificate.

          Please note that the provisional allotment letter and all the original receipts issued by the erstwhile builders to you against the said provisional booking stand cancelled.

 

5.           The allegation either before the District Forum or before this Commission is that this act on the part of the respondents cancelling the booking was totally illegal, unwarranted, arbitrary and high handed as there is no justification to do so. The respondents since were bound by the decision of the MCD could not have recalled their decision.
6.           This led to filing of the complaint before the District Forum which complaint, as stated above, stood dismissed leading to filing of this appeal. The respondents were noticed and in response therto they have filed reply resisting the appeal on the ground that the same is not maintainable as the appellant having already in possession a registered office, has transacted into for a commercial purpose and thus not a consumer and if that be so they are not entitled to raise a consumer dispute under the Consumer Protection Act 1986. Respondents have taken other grounds also resisting the claim of the appellant.
7.           The appeal was listed before us for final hearing on 16.03.2018 when the Counsel for both sides appeared and advanced their arguments. We have perused the records of the case carefully and considered the issues.
8.           During the course of hearing on 08.03.2018, both the parties were asked if the, subject matter of the complaint, could be resolved by refunding to the appellant/ complainant the total amount deposited by them with the respondent with some reasonable interest from the date of deposit till realization. The response of the respondents was positive in as much as they agreed to refund the principal amount of Rs.60,000/- plus simple interest @ 10% from the date of deposit till now. After calculating the interest they agreed to refund Rs.2,50,000/-. But the appellant however demanded Rs.1,54,029/- which was proposed to be refunded in the year 2006, which offer was then not accepted by them, plus simple interest @ 10% on the said amount of Rs.1,54,029/- from 2006. The Ld. Counsel for the respondent argued that this way the appellant is demanding interest on the interest which is not acceptable to them. Having regard to this we proceeded to hear the case on merit.
9.           The matter was finally argued on 16.03.2018. The appellant while agreeing for the refund had again averred that the amount of Rs.1,54,029/- plus 10% simple interest from 2006 be refunded. The Ld. Counsel for the respondents on the other hand argued that the property proposed to be purchased since was for commercial purpose, the appellant is not a consumer. Since this argument has been advanced we may in the first instance examine whether the appellant is a consumer or not and for this purpose we may advert to the provisions of Section 2(1)(d) of the Act which posits as under :

 

“Consumer means any person who.-

1. Buy any goods for a consideration which has been paid or promised of 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
2.  [hires or avails of] any services of 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 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.

 

10. On a plain reading of the above provision it is clear that in order to avail the benefit of the explanations, the onus is on the complainant to show that they have availed the services of the OPs/Respondents exclusively for the purpose of earning their livelihood by means of self-employment.
11. To put it differently, one while purchasing a commercial unit would be a consumer within the meaning of Section 2(1)(d) only if one is not having already business. Booking of a unit for the purpose of expansion as is the object in the given case, envisage existence of business establishment already, in which case one would not be covered within the exception clause of Section 2(1)(d) of the Act (supra) and if that be the case, availing of service would tantamount to for commercial purpose and in such event complainant would not be a consumer. This view is fortified by the decision of the Hon’ble NCDRC in the matter of Ashish Ahuja vs. M/s. Gold Cause Construction Pvt. Ltd. & fours ors-cc 201/15- decided on 15.04.2015- reported-2015 SCC online NCDRC 31-holding as under;-

 

We have carefully considered the submissions made on behalf of the complainant and perused the record. It is undisputed that the complainant alongwith his wife has been running family business of retail fashion accessories. It is also not disputed that the consumer complaint has been filed in respect of alleged deficiency in service in respect of booking of shop, which is a commercial premises. Therefore, unless the case of the complainant is covered with the Explanation, which provides restricted definition for commercial purpose the complainant cannot be termed as ‘consumer’ as envisaged under Section 2(1)(d) of the Act. The complainant has alleged that the is presently running the business under the name of ‘fashion and trends’ in which he is self employed for earning livelihood and he has booked the commercial space in the project undertaken by the opposite party with a view to expand its business. Therefore, he is squarely covered under the restrictive definition of commercial purpose given in the Explanation to Section 2(1)(d) of the Act.

  

12. In view of the discussion above, it is clear from the averments in the complaint that the services of the Op were availed for commercial purpose. As such the complainant cannot be termed as ‘consumer’ for the purpose of the Act. Since the complainant is not a consumer he cannot maintain the consumer complaint.
13. Since we have arrived at the conclusion that the complainant is not a consumer we do not wish to consider other submissions made by the parties on the merit of the case.
14. Consumer complaint is accordingly dismissed on the ground that the transaction having been done for commercial purpose the complainant is not a consumer and thus not entitled to raise a consumer dispute under the provisions of the Consumer Protection Act 1986. We find no reason to interfere with the orders passed by the District Forum.
15. Ordered accordingly.
16. However we reserve the right of the complainants/appellants to approach the appropriate Fora to seek their remedy if so advised. They may take the advantage of the ruling of the Hon’ble Apex Court in the case of Laxmi Engineering works verses PSG Industrial Institute as reported in (1995) 3 SCC 583 to seek the exclusions of the time spent in prosecuting the complaint before this Commission or before the District Consumer Forum.
17. Copy of this order be forwarded to the parties to the case free of cost as statutorily required. Copy of this order be forwarded to the District Forum also for information.
18. File be consigned to records.    

 

 

(ANIL SRIVASTAVA)                                                                                 (O.P.GUPTA)

MEMBER (GENERAL)                                                                            MEMBER (JUDICIAL)