National Consumer Disputes Redressal
M/S. Tdi Infrastrue Pvt. Ltd. vs Pradeep Singh Pahal on 21 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1138 OF 2014 (Against the Order dated 11/09/2014 in Complaint No. 89/2011 of the State Commission Delhi) 1. PARDEEP SINGH PAHAL S/o Amar Singh Pahal, D-34, IInd Floor, Pamoposh Enclave(GK-1), New Delhi-110 048. ...........Appellant(s) Versus 1. M/S. TDI INFRASTRUCTURE PVT. LTD. Formerly known as Intime Promoters Pvt. Ltd, 9, Kasturba Gandhi Marg, New Delhi-110 001. ...........Respondent(s) FIRST APPEAL NO. 1423 OF 2014 (Against the Order dated 11/09/2014 in Complaint No. 89/2011 of the State Commission Delhi) 1. M/S. TDI INFRASTRUE PVT. LTD. THROUGH ITS AUTHORISED REPRESENTATIE, 9, KASTURBA GANDHI MARG, NEW DELHI-110001 ...........Appellant(s) Versus 1. PRADEEP SINGH PAHAL S/O. AMAR SINGH PAHAL, D-34, 2ND FLOOR, PAMPOSH ENCLAVE, GREATER KAILASH-1, NEW DELHI-110048 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Appellant : For the TDI Infrastructure : Ms. Kanika Agnihotri, Advocate
with Mr. Harshavardhan Singh
Rathore, Advocate For the Respondent : For the Pardeep Singh Pahal : Mr. Syed Hasan Isfahani, Advocate
Dated : 21 Sep 2015 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
Both these appeals arise out of one order of State Commission; hence, decided by common order.
2. Appeal No. 1138 of 2014 has been filed by the complainant and Appeal No. 1423 of 2014 has been filed by OP against the order dated 11.09.2014 passed by the learned State Consumer Disputes Redressal Commission, Delhi (in short, 'the State Commission') in Consumer Complaint No. 89/2011 - Pardeep Singh Pahal Vs. M/s. TDI Infrastructure Pvt. Ltd. by which, complaint was allowed.
3. Brief facts of the case are that complainant applied for allotment of a shop in 'Radeo Drive Complex' in TDI City at Kundali, a project developed by OP and paid Rs.8,50,000/- as registration amount. OP allotted shop No. 205 having covered area of 536 sq. fts. and super built up area 800 sq. ft. vide letter dated 31.08.2006. As per demand of OP, complainant deposited total Rs.35,20,000/- towards this shop against total cost of Rs.44,00,000/-. This amount was deposited with a dream to have his own business, but OP has not handed over possession of unit till date even after 24 months from sanction of building plans. It was further submitted that on 6.3.2011, complainant found no construction activity at the complex and in such circumstances, by letter dated 12.3.2011 requested OP to refund amount with interest, but OP did not bother to reply. Alleging deficiency on the part of OP, complainant filed complaint before State commission. OP resisted complaint and admitted allotment of shop and receipt of money. It was further pleaded that Hon'ble High Court stayed operation and effect of licences and put the entire development work process on the standstill. After vacating stay order, construction work was reinstated. It was further submitted that complainant was not consumer as the allotment of shop was obtained with motive of earning profit, but unfortunately due to global economic meltdown, prices declined and prayed for dismissal of complaint. Complainant filed replica and submitted that complainant agreed to purchase commercial unit for the purpose of earning his livelihood by means of self-employment. Learned State Commission after hearing both the parties, allowed complaint and directed OP to refund Rs.35,20,000/- with 9% p.a. interest and further directed to pay compensation of Rs.50,000/- and cost of litigation Rs.10,000/- against which both parties filed appeals.
4. Heard learned Counsel for the parties finally at admission stage and perused record.
5. OP has filed application for condonation of delay in FA No. 1423 of 2014. Appellant submitted that Counsel for the appellant was to appear in number of cases pending before District Forum/State Commission filed against appellant in Lok Adalat for a number of day; so, appeal could not be drafted and filed in time, so, delay of 53 days may be condoned. No doubt, appeal should have been filed within the permissible time, but as Counsel for the appellant was busy in attending Lok Adalat for number of days, I deem it appropriate to condone delay of 53 days in filing appeal subject to cost in the light of latest judgment of Hon'ble Apex Court in (1) Civil Appeal Nos. 10120-10121 of 2014 - Jeevanti Devi Vs. Commercial Motors & Anr.; (2) Civil Appeal No. (s) 10289 of 2014 - A.T.S. Govindarajane Vs. Chief Manager, State Bank of India; (3) Civil Appeal No. 5071 of 2014 - Taipen Traders Ltd. & Anr. Vs. M/s. Bhawani Cold Storage & Ors. by which delay of 135 days, 149 days and 218 days, respectively in filing revision petition was condoned. In view of this, the delay stands condoned subject to payment of cost of Rs.5,000/- to complainant.
6. Learned Counsel for OP submitted that complainant neither pleaded, nor proved to be a consumer within Consumer Protection Act; even then, learned State Commission committed error in allowing complaint; hence, appeal be allowed and impugned order be set aside. On the other hand, learned Counsel for the complainant submitted that learned State Commission rightly allowed complaint treating complainant as consumer, but has committed error in not allowing appropriate compensation and interest; hence, appeal of OP be dismissed and his appeal be accepted.
7. The core question to be decided is whether complainant falls within purview of consumer.
8. It is admitted case of the parties that complainant was allotted a commercial shop in commercial project of OP. OP in written statement specifically pleaded that complainants are not consumer, but speculator who invested money by registering allotment of commercial units believing that prices of real estate will rise in future. In replica complainant submitted that he agreed to purchase commercial unit for the purpose of earning his livelihood by means of self-employment. In affidavit evidence filed by complainant he submitted that he invested money with a dream to have his own business.
9. By perusal of aforesaid pleadings and evidence of complainant, it becomes clear that complainant has not pleaded in the complaint that he got commercial unit allotted to be used by him exclusively for the purpose of earning his livelihood by means of self-employment. On objection taken by OP in its written statement, complainant in replica mentioned that he agreed to purchase commercial unit for earning his livelihood by means of self-employment which cannot be treated as averment made in the original complaint. Not only this, in affidavit evidence, he has nowhere mentioned that he purchased aforesaid unit for the purpose of earning his livelihood by means of self-employment and only mentioned that he purchased this unit for his own business. The question is merely by putting word "own business" whether purchase of commercial unit can be treated as purchase of unit to be used by himself exclusively for the purpose of earning his livelihood by means of self-employment. In the absence of specific pleadings and proof merely by mentioning that he purchased commercial unit for his own business it does not stand proved that he purchased commercial unit to be used by him exclusively for the purpose of earning his livelihood by means of self-employment.
10. Hon'ble Apex Court in (1995) 3 SCC 583 - Laxmi Engineering Works Vs. P.S.G. Industrial Institute observed as under:
"12. xxx The explanation excludes certain purposes from the purview of the expression "commercial purpose" - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition of expression "consumer". If the commercial use is by the purchaser himself for the purpose of earing his livelihood by means of self-employment, such purchaser of goods is yet a "consumer". In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self- employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasis what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words."
11. Hon'ble Apex Court in (1997) 1 SCC 131 - Cheema Engineering Services Vs. Rajan Singh observed as under:
"In other words, the Explanation excludes from the ambit of commercial purpose in sub-clause (i) if section 2(1)(d), any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. The question, therefore, is : whether the respondent has been using the aforesaid machine for self-employment? The word 'self-employment 'is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is included that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing o regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self- employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but "merely earning livelihood in commercial business", does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. 'He' includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that, therefore, it is not a commercial purpose. The orders of all the Tribunals stand set aside. The matter is remitted to the District forum. The District Forum is directed to record evidence of the parties and dispose it of in accordance with law within a period of six months from the date of receipt order."
12. This Commission in Consumer Complaint No. 236 of 2012 - M/s. Richa & Co. Vs. DLF Universal Ltd. observed that purchase of commercial space by partnership firm was for commercial purposes and complainant was not consumer.
13. In the light of aforesaid judgments, it becomes clear that purchase of commercial unit measuring 800 sq. ft. super built area by complainant in OP's commercial project is for commercial purpose and complainant does not fall within purview of consumer under Section 2 (d) of the C.P. Act. Learned State Commission has wrongly observed that distinction between the 'commercial purpose' and 'non-commercial purpose' is so obscure and thin that it becomes very difficult to reach on a definite conclusion and expression 'commercial purpose' must be given precise and restrictive meaning in favour of the consumer. Learned State Commission committed error in treating complainant as consumer and allowing complaint and in such circumstances, appeal filed by OP is to be allowed and impugned order allowing complaint is liable to set aside. When complaint is to be dismissed, appeal filed by complaint is liable to be dismissed as having become infructuous.
14. Consequently, Appeal No. 1423 of 2013 - TDI Infrastructure Pvt. Ltd. Vs. Pradeep Singh Pahal filed by OP is allowed and impugned order dated 11.09.2014 passed by learned State Commission in Complaint No. 89 of 2011 - Pradeep Singh Pahal Vs. TDI Infrastructure Pvt. Ltd. is set aside and complaint stands dismissed with liberty to the complainant to approach appropriate form for redressal of his grievance. Appeal No. 1138 of 2014 filed by complainant Pardeep Singh Pahal Vs. M/s. TDI Infrastructure Pvt. Ltd. is dismissed having become infructuous.
......................J K.S. CHAUDHARI PRESIDING MEMBER