Delhi

StateCommission

CC/87/2016

SH. ANURAG JUNEJA - Complainant(s)

Versus

M/S UNIVERSAL BUILDWELL PVT. LTD. & ANR. - Opp.Party(s)

28 Sep 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 28.09.2018

                                                                                                              

                                                                   Date of decision:05.10.2018

 

 

Complaint No. 65/2014

Complaint No. 87/2016

Complaint No. 88/2016

 

IN THE MATTER OF:

 

C-65/2014

Sh. Jagdish Lal Sahni

S/o Sh. Durga Dass Sahni,

R/o C-403, Dream Apartment,

Plot no. 14, Sector-22,

Dwarka, New Delhi-110075

 

Sh. Neeraj Gautam

S/o Sh. T.C. Gautam

R/o A-2/23, Janakpuri,

New Delhi-110058                                                ….Complainants  

 

VERSUS

 

M/s Universal Buildwell Pvt. Ltd.

Company registered under the Companies Act, 1956

 

Having registered office at:

102, Antriksh Bhawan, 22 K.G. Marg,

Cannaught Place, New Delhi-110001

 

Having corporate office at:

Universal Tower, 8^th floor, sector-49,

Gurgaon, Sohna road, Haryana, 122018

Through its managing Director/CEO/Person-Incharge

 

M/s First Avenue Real Estate Pvt. Ltd.

Company registered under the Companies Act, 1956,

 

Having registered office at:

1103, Naurang House,

21 K. G. Marg Connaught Place,

New Delhi-110001

Haryana regulation of property dealer

and consultation act,

2008 registered licence no. 676

dated: 10.11.2010

 

Having corporate office at:

CS-242, DLF City Centre Mall,

2.  

Through its managing

Director/CEO/Person-Incharge                            …Opposite Parties

 

                C-87/2016

Sh. Anurag Juneja

S/o Sh. Ram Juneja

R/o Flat no. 803,

Tower C-4, the Legend, Sec-57,

Gurgaon-122002

Through G.P.A. Holder

Sh. Sudershan Kumar Ahuja

R/o Flat no. 605,

New Shivani GHS, Plot no. 51,

Sector-56, Gurgaon-122011                                          ….Complainants  

 

VERSUS

 

M/s Universal Buildwell Pvt. Ltd.

Company registered under the Companies Act, 1956

 

Having registered office at:

102, Antriksh Bhawan, 22 K.G. Marg,

Cannaught Place, New Delhi-110001

 

Having corporate office at:

Universal Tower, 8^th floor, sector-49,

Gurgaon, Sohna road, Haryana, 122018

Through its managing Director/CEO/Person-Incharge

 

M/s First Avenue Real Estate Pvt. Ltd.

Company registered under the Companies Act, 1956,

 

Having registered office at:

1103, Naurang House,

21 K. G. Marg Connaught Place,

New Delhi-110001

Haryana regulation of property dealer

and consultation act,

2008 registered licence no. 676

dated: 10.11.2010

 

Having corporate office at:

CS-242, DLF City Centre Mall,

2.  

Through its managing

Director/CEO/Person-Incharge                            …Opposite Parties

 

C-88/2016

Sh. Gaurav Juneja

S/o Sh. Ram Juneja

R/o Flat no. 803,

Tower C-4, the Legend, Sec-57,

Gurgaon-122002

Through G.P.A. Holder

Sh. Sudershan Kumar Ahuja

R/o Flat no. 605,

New Shivani GHS, Plot no. 51,

Sector-56, Gurgaon-122011                                          ….Complainants  

 

VERSUS

 

M/s Universal Buildwell Pvt. Ltd.

Company registered under the Companies Act, 1956

 

Having registered office at:

102, Antriksh Bhawan, 22 K.G. Marg,

Cannaught Place, New Delhi-110001

 

Having corporate office at:

Universal Tower, 8^th floor, sector-49,

Gurgaon, Sohna road, Haryana, 122018

Through its managing Director/CEO/Person-Incharge

 

M/s First Avenue Real Estate Pvt. Ltd.

Company registered under the Companies Act, 1956,

 

Having registered office at:

1103, Naurang House,

21 K. G. Marg Connaught Place,

New Delhi-110001

Haryana regulation of property dealer

and consultation act,

2008 registered licence no. 676

dated: 10.11.2010

 

Having corporate office at:

CS-242, DLF City Centre Mall,

2.  

Through its managing

Director/CEO/Person-Incharge                            …Opposite Parties

 

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

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER (GENERAL)

 

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

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

 

 

Present:       Ms. Rajat Sahni, Counsel for the Complainant in all three cases

                   None of OPs in either of the three cases

                  

PER:           ANIL SRIVASTAVA, MEMBER (G)

 

JUDGEMENT

Facts of the three complaints and law points involved being identical we propose to dispose them off by a common order, taking C-65/2014 as the lead case.

 

1.           Sh. Jagdish Lal Sahni and Sh. Neeraj Gautam, resident of Delhi, have filed this complaint, for short complainants, before this Commission under Section 17 of the Consumer Protection Act 1986, the Act, against the M/s Universal Buildwell Pvt. Ltd., hereinafter referred to as OPs alleging deficiency of service on the part of the OP having not commenced the construction of the project they had launched as also unfair trade practice demanding the money even when they did not have proper approval and sanction for the project under consideration and praying for relief as under:

 

1. Admit the present complaint, issue notice to the respondents, try and adjudicate this complaint.
2. Direct the respondents to refund my consideration amount of Rs. 13,03,875/- with 24% interest compounded (as per the respondent no.1 demanded on the late payment charges) till the date of Hon’ble Commission Decision (on the amount of which we have paid to respondent no. 1) in favour of the complainants in respect of the said unit;
3. Direct the respondents to pay of Rs. 5,00,000/- damages to the complainants towards the sell of disputed property of the project from land measuring 3.487 Acres situated in Sector-59, revenue estate of village Ullahwas, Tehsil Sohna, District Gurgaon, Haryana as by way of this act of the judgment of Hon’ble Punjab and Haryana High Court, “direction to setback this land to farmers’, and the complainants looses various at this time no property available at this price and also compromises with the locations;
4. Direct the respondents to clear the above mentioned number of Two RTI replies from DGTCP without building sanction plan they ask for the payments and after that the project has not approved so far and project already cancelled and licence expired after that why they cancel the Unit of the complainants;
5. The compensation be commensurate to the losses suffered by the complainants;
6. Direct the respondents to pay of Rs. 3,00,000/- damages towards delay/misguide in handing over the unit within period of three years and the issues on Basements;
7. Direct the respondents to pay of Rs. 5,00,000/- being damages for harassment, humiliation and mental pain caused to the complainants due to deficiency in service and negligence on part of the respondent companies;
8. Direct the cancel the licence of respondent no. 2 in ‘HARYANA REGULATION OF PROPERTY DEALER AND CONSULATION ACT, 2008, registered licence no. 676 Dated: 10.11.2010 and take an appropriate action in this Act or forward this complaint to Haryana Govt., i.e. Cancellation of Licence.
9. Any other relief which this Hon’ble Commission deem fit and proper may also be awarded in favour of complainants and against the respondent companies;

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainants being swayed by the advances and advertisement of the OPs and having been assured that they (OPs) are in the process of obtaining the approval for the commercial project from the concerned government authorities at Chandigarh expressed their desire for purchasing the office space of the area of 750 sq. ft. in their upcoming project in Universal Square, Sector 59, Gurgaon, Haryana at the booking rate of Rs. 5,795/-. The total approximate cost of the office space was Rs. 43,46,250/- of which 20% was to be paid within 60 days from the date of the allotment. The possession of the office space was agreed to be handed over in three years, which means by 2013. The complainants having deposited Rs. 3,00,000/- by way of cheque, the OPs issued an allotment letter in favour of the complainant on 22.06.2010 allotting the complainants unit no: 425 of 750 sq. ft. on fourth floor in Universal Square, Sector 59, Gurgaon. Simultaneously a demand notice for an amount of Rs. 5,69,250/- was sent, which amount the complainant paid on 26.08.2010. Further payment of Rs. 4,34,625/- was also made by the complainant on receipt of the demand notice. In the process an amount of Rs. 13,03,875/- was paid to the OPs by 2010.
4.           It is at this stage the complainants came to know that the OPs have not received the approval sanction of the Governmental Authorities regarding the project, which information they obtained from the office of the District Town Planning cum SPIO, Office of Director General, Town and Country Planning, Chandigarh.
5.           The complainant has alleged that this act of the OP apart from illegal amounts to unfair practice. Consequently the complainants had lodged a criminal complaint with SHO, Police Station, Sector 23, Dwarka, New Delhi on 09.09.2013 but no case was registered, leading to filing of this complaint before this Commission for the redressal of their grievances cause of action having arisen as against the OPs.
6.           OPs were noticed and in response threto they have filed their written statement resisting the complainant on various grounds but for the disposal of the complaint suffice would be to take their objection/ground that the transaction in the whole matter having been done for commercial purpose, the complainants are not consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act 1986. The complainants have also filed rejoinder and their evidence b way of affidavit reiterating their averments contained in the complaint. The OPs have also filed their evidence rebutting the contentions raised by the complainants.

 

1.  

7.           Sh. Anurag Juneja resident of Gurgaon, through GPA Sh. Sudershan Kumar Ahuja, has filed this complaint alleging deficiency of service and unfair trade practice on the part of the OPs on the grounds set out by the complainants in C-65/2014. Here also 20% of the total sale consideration was paid but with no progress in the construction of the project. In this case the OPs having not filed their written statement within the permissible time their right to do so was closed.

 

1.  

8.           Sh. Gaurav Juneja through GPA Sh. Sudershan Kumar Ahuja, has filed this complaint with identical facts and here also right to file written statement stood the same not having been filed within the time prescribed for the purpose. In all three complaints relief claimed is the refund of the amount deposited alongwith the interest.
9.           These complaints were listed before for final hearing on 28.09.2018 when the ld. Counsel for the complainants appeared and advanced his arguments on all three complaints. None appeared for OPs. We have perused the records and given a careful consideration to the subject matter.
10. We may in the first instance examine the contention raised by the OPs to the effect that the complainants having booked office are not consumer since the transaction is for commercial purpose prohibited under Section 2(1)(d) of the Act.
11. In order to appreciate their contention, it is necessary to have a look on section 2(1)(d) of the Act.

 

1. 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 ho obtains such goods for resale or for any commercial purpose or;
2. 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 and 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 purposed of earning his livelihood by means of self employment. 

 

12. It would thus be seen that the emphasis is on the purpose for which the goods are obtained, though the use to which the goods are actually put would be helpful in deciding the purpose for which they were obtained. The terms commercial purpose has not been defined in the Consumer Protection Act and as held in Laxmi Engineering Works vs. P.S.G. Industrial Institute [MANU/SC/0271/1995 : (1995) 3 SCC 583], in the absence of a statutory definition, we have to go by its ordinary meaning. ‘Commercial denotes ‘ pertaining to commerce (Chamber’s Twentieth Century Dictionary); it means connected with, or engaged in commerce; mercantile, having profit as the main aim’ (Collin’s English Dictionary) and the word ‘commerce’ means ‘financial transactions, especially buying and selling of merchandise on a large scale’ (Concise Oxford Dictionary)’.
13.   On reading of the above, it is clear that qua the dispute relating to hire/availing of service, a person is a consumer who hires/avails service for consideration but does not include a person who has availed service for commercial purpose. Admittedly, the complainants purpose i.e. booking of shop/commercial space in the proposed project undertaken by the OP. Therefore, in order to be termed as ‘consumer’, the complainants are required to show that their cases are covered by the explanation to Section 2(1)(d) of the Act, which gives restricted meaning to the term commercial purpose.
14. The Hon’ble National Commission in Vishwani Puri & Ors. vs/ DLF Universal Ltd. 1 [2015] CPJ 65 (NC) and MANU/CF/0920/2014 has observed and held that complainants have booked flat in commercial tower therefore they are not covered under definition of “Consumer” under Section 2(1)(d) of the Act. As such the complaint filed by them is not maintainable.

          Similarly Hon’ble National Commission in the matter of State Industrial and Investment Corporation Ltd. versus Dikhsha Enterprises, [2010] Vol. III, CPJ 335 & MANU/CF/0082/2010 has observed and held that any person who buys goods and avails any service for a consideration, if it relates to a commercial purpose, except on the ground of earning his livelihood by means of self-employment, would not fall within definition of a consumer and, therefore any such dispute jurisdiction to entertain any such dispute.

15. In terms of the explanation the complainants are required to prove that they had booked the office space in question exclusively for the purpose of earning livelihood by way of self employment. For this purpose we have adverted to the evidence and pleadings and we find no submission or averment that the space in question was booked exclusively for the purpose of earning his livelihood by means of self employment, which means and to put it differently the complainants have admittedly availed of the services of the OP for commercial purpose i.e. booking/allotment of commercial space in the proposed project undertaken by the OP. If that be the case the complainants are not covered under the definition of “Consumer”. Consequently they do not have any locus standi to maintain the consumer complaint. the consumer complaints are, therefore rejected since not maintainable under the Consumer Protection Act 1986. It is clarified that this order will not come in the way of the complainants to avail of their legal remedy by moving appropriate forum.
16. Ordered accordingly.
17. However we also reserve the rights of the complainants to approach the appropriate civil court to seek their remedy, if so advised. They may take advantage of the ruling of the Hon’ble Supreme Court of India in the case of Laxmi Engineering works versus P.S.G. Industrial Institute-(1995) 3 SCC 583 to seek exclusion of the time spent in processing these complaints before this Commission.
18. Registrar of this Commission is requested to place on the records of C-87/2016 and C-88/2016 a certified copy of this order for permanent records.
19. A copy of this order be forwarded to the parties to the cases in each of the three complaints. Files be consigned to records.

 

 

          

 

(ANIL SRIVASTAVA)                                                                                            (O.P.GUPTA)

     MEMBER (GENERAL)                                                                                    MEMBER (JUDICIAL)