Delhi

StateCommission

CC/130/2016

SMT. MUKUL SHARMA - Complainant(s)

Versus

M/S VSR INFRATECH PVT. LTD. - Opp.Party(s)

ASHWANI KUMAR SHARMA

23 Mar 2016

ORDER

IN THE STATE COMMISSION

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

 

Date of Argument: 23.03.2016

Date of Decision: 01.04.2016

 

Complaint Case No. 130/2016

 

        In the Matter of:

               

                Mukul Sharma,

          W/o Sh. Ashwani Kr. Sharma,

          R/o B-119, G.F. Ardee City, Sec- 52,

          Gurgaon, Haryana

 

……Complainant     Versus   M/s VSR Infratech Pvt. Ltd. A-22, Hilliview Apartment, Vasant Vihar, New Delhi-110057   Also At: Plot No. 44, Ground Floor, Sector 44, Institutional Area, Gurgaon 122003, Haryana   Through Its Managing Director/ Principal Officer                                                                           …….Opposite Party

CORAM

  O.P. Gupta, Member (Judicial)

  S.C. Jain, Member

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 case is based on the allegations that the complainant booked commercial unit No. 7A-07 in “114Avenue”, Sector 114, Gurgaon, Haryana. In Novermber 2011 she paid Rs. 9,80,561/- as initial amount and total Rs. 25,00,000/-. The total price was Rs. 55,00,000/-. She has prayed for handing over physical possession, refund Rs. 25,00,000/- with interest @ 24%, compensation of Rs. 25,00,000/-, Rs. 5,00,000/- for litigation charges.

2.             The copy of agreement filed subsequently by the complainant contains in clause-E that the super area of the apartment is 587.280 sq. ft.

3.             On further enquiry the counsel for the complainant submitted that complainant is none else but his wife and the apartment was booked for office of Advocate by him i.e. husband of the complainant. It is not the case of the complainant that complainant has any professional qualification of Advocate. If the booking was for office of husband of the complainant, it is not clear as to why the booking was done in the name of the complainant and why not in the name of husband of complainant.  

4.             The allotment letter copy of which is at page 18 shows that the super built up area is 587.280 sq. ft.

5.             We put it to the counsel for the complainant that apparently the unit was commercial as is mentioned in Para 4 of the complaint. So, the complainant does not fall within the definition of Consumer under section 2(1)(d) Consumer Protection Act. The counsel for the complainant submitted that Para (a) at the top of page 5 of the complaint shows the complainant booked the same for earning her livelihood through this land and its investment.

6.             The complaint does not show as to what is the qualification of complainant and what livelihood she was to adopt. It is not the case of the complainant that she is a qualified professional.

7.            Moreover, in order to come within the exception of clause 2(1)(d) the livelihood should be by means of self employment. To find whether one intends to earn livelihood by self employment, the relevant considerations are what was the amount invested, what is the area of unit, what was the nature of business likely to be commenced, number of persons likely to be employed.

8.             A person purchasing unit for Rs. 55,00,000/- cannot be said to be a bonafide user for self employment. The things could have been understood, had the investment been reasonable say Rs. 5,00,000/- to 7,00,000/-.

9.             The premises booked for ATM cannot be said to be earning livelihood by self employment. A unit booked for BPO cannot be said to be booked for earning livelihood by self employment as number of employees are likely to be deployed. Area of about 100 sq. ft. can be said to be of personal office but not office with the area of 567 sq. ft.

10.            In Jagmohan Chhabra Vs. DLF Ltd. IV (2007) CPJ 199 it was held by National Commission that space purchased by complainants was earning profit and was relatable to commercial purpose. The complaint was found to be not maintainable and was dismissed at the stage of admission.

11.            In Travel India Bureau Pvt. Ltd. Vs. HUDA II (2008) CPJ 329 it was held that purchase of unit not for earning livelihood by means of self employment relates to commercial purpose which was excluded from the definition of Consumer and the complaint was dismissed at the stage of admission.

12.            Similar view was taken by National Commission in complaint case No. 183/12 titled as Shikha Birla Vs. DLF Relaxable Developers Ltd. decided on 01.02.2013, in complaint case No. 236/12 titled as Richa & Company Vs. DLF Universal Ltd decided on 01.01.2012.

13.            The pronouncement by National Commission in Monstera State Pvt. Ltd. Vs. ARDEE Infrastructure Pvt. Ltd. IV (2010) CPJ 299 SKG Engineers Pvt. Ltd. Vs. EMAAR MGF Land Pvt. Ltd. III (2010) CPJ 260 and Rajasthan State Industrial Development and Investment Corporation Ltd. Vs. Dikha Enterprises III (2010) CPJ 333 are also for the same preposition.

14.            In Pradeep Singh Pehel Vs. TDI Pvt. Ltd. decided on 21.09.2015 National Commission did not find area of 800 sq. ft. as one for self employment.

15.            The counsel for the complainant has relied upon decision of National Commission in complaint case against M/s DLF Universal Ltd. decided on 15.12.2014. In Para 7 it has been held that complainants were trying to seek shelter of bald plea in the complaint that they had booked commercial spaces in the tower for earning their livelihood by means of self employment. Merely, taking of plea will not entitle the complainants to get the benefit of explanation which carves out exception for the person who has hired the services exclusively for earning his livelihood by means of self employment. This judgment in a way goes against the complainant instead of helping her.

16.            As a result of the above discussion, the complaint is dismissed in Limini.

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

                File be consigned to record room.

(O.P. Gupta)

Member (Judicial)

 

 

(S.C. Jain)

Member