State Consumer Disputes Redressal Commission
M/S Tdi Infratech Ltd. vs Amit Kumar on 19 February, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1130 of 2015
Date of institution : 14.10.2015
Date of decision : 19.02.2016
M/s TDI Infratech Ltd., having its Regd. Office at 9 Kasturba Gandhi
Marg, New Delhi 110001, through its Authorized Signatory Rohit
Gogia.
Second Address: SCO 51-52, Sector-118, T.D.I. City, Kharar Road,
Mohali.
....Appellant/Opposite Party
Versus
1. Amit Kumar son of Sham Lal;
2. Arun Kumar son of Sham Lal;
Residents of 274, Phase-7, Mohali.
....Respondents/Complainants
First Appeal against the order dated
23.07.2015 of the District Consumer
Disputes Redressal Forum, S.A.S. Nagar,
Mohali.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant : Shri Manoj Vashishtha, Advocate For the respondents: Shri Arun Kumar, Respondent No.2 in person.
JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by the appellant/opposite party against the order dated 23.07.2015 passed by District Consumer Disputes Redressal Forum, S.A.S. Nagar, Mohali (in short, "District Forum"), vide which the complaint filed by the respondents/complainants, under Section 12 of the Consumer First Appeal No.1130 of 2015 2 Protection Act, 1986 (in short, "the Act"), was allowed and the following directions were issued to it:-
i) to refund the amount of Rs.6,00,000/-, along with interest at the rate of 15% per annum from the date of deposit till the realization of that amount; and
ii) to pay Rs.25,000/-, as lump sum compensation for mental agony and harassment suffered by the complainants and cost of litigation.
2. As per the allegations, made in the complaint, the complainants solicited inquiries about the investment in upcoming "T.D.I. Business Centre" in Sector 117-118, S.A.S. Nagar, Mohali from the opposite party and submitted application on 28.09.2008 for getting themselves registered for the allotment of a unit, measuring 750 square feet, at the rate of Rs.4,000/- per square foot, in order to earn their livelihood. Along with that application, they deposited an amount of Rs.6,00,000/-, vide two cheques dated 09.06.2008, as earnest money; which was duly acknowledged by the opposite party, vide receipt dated 04.08.2008. They were provisionally allotted Unit No.F8-018C on the 8th Floor. The Building Plan was revised by the opposite party and after that revision, they were provisionally allotted another Unit bearing No.F7-023, measuring 678.85 square feet, on 7th Floor. The Project was not started and accordingly they asked from the opposite party, vide letter dated 18.01.2012, as to why the smaller unit had been allotted to them and also enquired whether that unit had been allotted through lottery or by adopting some other method. No reply was received to that letter. They were ready to First Appeal No.1130 of 2015 3 make the payments, but did not make those payments, as they did not receive any response to their letters dated 07.02.2012, 15.04.2012, 24.04.2012 and 20.06.2012. They were expecting that the unit would be ready within two years at the cost of the opposite party, but it kept on issuing demand notices for depositing the money. Ultimately, their registration was cancelled, vide letter dated 22.08.2012, and it was intimated that they had ceased to have any right or title in the unit; which was so allotted to them. It was not mentioned in that letter that the advance money deposited by them had been forfeited. In view of that cancellation, they, vide their letter dated 30.07.2013, made a request to the opposite party to refund the amount of Rs.6,00,000/-, so deposited by them, along with interest at the rate of 18% per annum from 04.08.2008 till the date of payment. The refund was not made in-spite of the fact that they issued reminders dated 12.03.2014 and 24.03.2014. They personally visited the office of the opposite party and met Mr. Nitin, who, on their request, refused to refund their amount. Thereafter, they approached the Senior Superintendent of Police (Economic Offence Wing), Mohali, to intervene in the matter and get their money refunded, along with interest, by making application dated 08.05.2014. The matter was got investigated, through D.S.P., City Sub Division, Kharar, who submitted his report dated 14.08.2014; in which he mentioned that the opposite party was ready to make the payment of advance money of Rs.6,00,000/- but without interest and that they be advised to approach the appropriate Forum to get their advance First Appeal No.1130 of 2015 4 money refunded. They prayed for the issuance of following directions to the opposite party:-
i) to pay Rs.12,30,000/-, including interest at the rate of 18% per annum from 04.08.2008 to 03.03.2014;
ii) to pay Rs.2,00,000/- for ignoring their correspondence; thereby resulting in mental stress and agony to them for six years; and
iii) to pay Rs.5,000/- for seeking legal assistance and the legal expenses.
3. The complaint was contested by the opposite party, by filing written reply before the District Forum; in which it admitted that the complainants made investment, by getting themselves registered for the offer of the allotment of commercial unit for a sum of Rs.30,00,000/- and deposited Rs.6,00,000/-, as earnest money. It also admitted that provisionally, Unit No.F8-018C on the 8th Floor was allotted to them; which was subsequently changed to Unit No.F7-023 on the 7th Floor. While denying the other allegations made in the complaint, it averred that while making application for the allotment of the unit, the complainants opted for Plan-B for making payment of the sale consideration. About the change of the unit, they were duly intimated, vide letter dated 15.09.2011. Demand of Rs.4,29,046/- was raised, by means of that letter; which was not paid by them. They were in arrears of Rs.6,37,945/- and after waiting for some time, demand letter dated 21.12.2011 was issued to them to make that payment. They were not having sufficient funds to make the payment of the outstanding amount and, as such, did not make the payment, despite reminders dated 27.11.2012, First Appeal No.1130 of 2015 5 17.02.2012, 07.04.2012 and 02.06.2012. On account of the non- payment of the balance amount, it was left with no other option but to cancel the registration and the same was accordingly cancelled, vide letter dated 22.08.2012 and the complainants were requested to surrender the original receipts issued to them; which they never surrendered. As per Clause-7 of the Application Form submitted by them, 20% of the total sale amount constituted the earnest money and the same is not refundable; as they themselves backed out of the deal, by not following the Payment Schedule opted by them. They have concealed the material facts and have tried to mislead the District Forum, by filing this complaint. They are not consumers within the meaning of Section 2 (1) (d) of the Act; as they made the investment in the commercial unit to make profit out of the investment. They are not potential users of the commercial unit, in question. The complaint filed by them is totally misconceived. They prayed for the dismissal thereof, with costs.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide aforesaid order.
5. We have heard learned counsel for the appellant/opposite party and Arun Kumar, respondent No.2/complainant No.2, in person. We have also carefully gone through the records of the case.
6. It has been submitted by the learned counsel for the opposite party that the opposite party in the written reply took up the First Appeal No.1130 of 2015 6 specific plea that the complainants have made investment in the commercial unit, in order to make profit out of that investment and, as such, were not consumers and still the District Forum did not adjudicate upon that point before deciding the complaint on merits. It is an admitted fact that the unit, so got booked by the complainants, was a commercial unit and in their complaint, they did not plead that they wanted to purchase that commercial unit exclusively for the purpose of earning their livelihood by means of self-employment and, as such, they cannot take the benefit of the "Explanation", appended to the definition of "consumer", as contained in Section 2 (1) (d) of the Act. The complaint filed by them was not maintainable before the District Forum and was liable to be dismissed. To meet with that argument of the learned counsel for the opposite party, it was contended by Arun Kumar, complainant No.2, in person, that it was specifically alleged in the complaint that the investment was made in the unit, in question, for earning their livelihood and, as such, their case is covered by the "Explanation", so appended to the said Section and they fall under the definition of the "consumer". No illegality was committed by the District Forum, by deciding the complaint on merits.
7. It is very much clear from the evidence produced on the record by the parties that the unit, in which the investment was made by the complainants, was a part of the commercial Project and was termed as "Commercial Unit" by the complainants themselves. They alleged in Para No.2 of their complaint that they made an application for getting themselves registered for the allotment of that unit, in First Appeal No.1130 of 2015 7 order to earn their livelihood. They did not allege therein that they intended to purchase that unit, exclusively for the purpose of earning livelihood, by means of self-employment. It is very much clear from the "Explanation", so appended to the definition of the "consumer", contained in Section 2 (1) (d) of the Act and which is reproduced below, that any person hiring service for commercial purpose still falls under the definition of the "consumer", if that service is hired exclusively for the purpose of earning his livelihood by way of self- employment:
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 purposes of earning his livelihood by means of self- employment.
Thus, the complainants were required to allege and prove two ingredients; (1) that the commercial unit was booked by them, exclusively for the purpose of earning their livelihood; and (2) the earning of the livelihood was to be by means of self-employment. They did not allege and prove the second ingredient and, as such, they did not fall under the definition of the "consumer". Therefore, the District Forum had no jurisdiction to entertain and decide the complaint and it committed an illegality, while deciding the complaint on merits, without first adjudicating upon the question, whether the complainants were consumers or not?First Appeal No.1130 of 2015 8
8. In the result, the appeal is allowed and the order passed by the District Forum is set aside. The complaint filed by the complainants is dismissed, without prejudice to their rights to avail of the other remedy available to them under the law, by way of filing civil suit or application etc. before the appropriate Court/Forum. The period during which they had been pursuing the complaint before the District Forum and the period during which the present appeal was pending before this Commission shall be excluded by that Court/Forum, while calculating the period of limitation.
9. The appellant had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another sum of Rs.12,54,411/-, vide receipt dated 05.01.2006, in compliance of the order dated 23.12.2015. Both these sums, along with interest which has accrued thereon, if any, shall be remitted by the registry to TDI Infratech Limited, SCO 51-52, Sector 118, TDI City, Kharar Road, Mohali, as per the undertaking given by its counsel at the time of filing of the appeal, by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
(JUSTICE GURDEV SINGH) PRESIDENT (MRS. SURINDER PAL KAUR) MEMBER February 19, 2016.
(Gurmeet S)