National Consumer Disputes Redressal
M/S. Unicity Projects & Anr. vs Rajan Bhateja & Anr. on 9 October, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 421 OF 2015 (Against the Order dated 01/04/2015 in Complaint No. 4/2014 of the State Commission Punjab) 1. M/S. UNICITY PROJECTS & ANR. UNICITY BUSINESS PARK, G.F. SUITE NO. 2, NEAR RAILWAY CROSSING, PUNCHKULA ROAD, NAC ZIRAKPUR DISTT, MOHALI, PUNJAB 2. SHRI NAVEEN BANSAL, PARTNER M/S. UNICITY PROJECTS, UNICITY BUSINESS PARK, C.F. SUITE NO. 2, NEAR RAILWAY CROSSING, PUNCHKULA ROAD, NAC ZIRAKPUR DISTT, MOHALI, PUNJAB ...........Appellant(s) Versus 1. RAJAN BHATEJA & ANR. S/O. SHRI R.K. BHATEJA, PRESENTLY RESIDING AT FLAT NO. 312, SADASHIV ALPINE, RESIDENCY, CHANDIGARH-AMBALA HIGHWAY, MARRYLAND, ZIRAKPUR, DISTRICT- MOHALI , PUNJAB 2. SHRI RAMESH KUMAR BHATEJA S/O. SHRI NIAMAT RAI, PRESENTLY RESIDING AT FLAT NO. 312, SADASHIV ALPINE RESIDENCY, CHANDIGARH-AMABALA HIGHWAY, MARRYLAND, ZIRAKPUR, DISTRICT-MOHALI, PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE DR. B.C. GUPTA, MEMBER For the Appellant : Mr. Sanjay Goswami, Advocate For the Respondent : Mr. Vikram Bajaj, Advocate Dated : 09 Oct 2015 ORDER The complainants/respondents booked office space with the appellants in a commercial building, which the appellants/opposite parties were to develop at Zirakpur. The complainants are father and son, complainant no.2 being the father and complainant no.1 being the son. The booking was made on 08.07.2010 and a formal agreement was executed between the parties for the sale of office space having an area of 551 square feet for a total consideration of ₹19,28,500/-, which was payable in installments. At the time of the booking, complainant no.1 was working with Videocon Industries Ltd. and complainant no.2 had retired from the service of Muthoot Finance Ltd.
2. Under the agreement between the parties, the appellants were to pay a sum of ₹31,400/- to the complainants as the return on the investment made by them till the possession was offered to them by the seller. It was also agreed between the parties that the seller would offer possession to the complainants by 31.12.2010 and in case of default, they would pay ₹5/- per Sq. ft. per month as penalty to the purchaser.
3. The appellants paid return @ ₹31,400/- till on 30.09.2012. Thereafter neither the aforesaid promised return was made nor the possession of the unit was handed over to the complainants. Being aggrieved, they approached the concerned State Commission by way of a complaint.
4. The complaint was resisted by the appellants, inter alia, on the ground that unit in question having been purchased for a commercial purpose, the complainants were not consumers within the meaning of Section 2 (1) (d) of the Consumer Protection Act.
5. The State Commission vide its order dated 01.04.2015 directed the appellants to refund a sum of ₹18,73,493/- to the complainants along with interest @ 12% p.a. They were also directed to pay a monthly return of ₹31,400/- along with interest @ 12% w.e.f. 1.10.2012 till the date of payment. The appellants were also directed to pay penalty @ ₹5/- per sq. ft. per month w.e.f. 1.1.2011 along with compensation quantified at Rs.2 lacs and the cost of litigation quantified at ₹21,000/-.
6. Being aggrieved from the order passed by the State Commission, the appellants are before us by way of this appeal.
7. Section 2 (1) (d) of the Consumer Protection Act to the extent it is relevant provides that the term 'consumer' does not include a person who hires or avails services for a commercial purpose. In view of the explanation attached to Section 2(1) (d), the term commercial purpose does not include hiring or availing of services exclusively for the purpose of earning livelihood by means of self-employment.
8. At the time of booking the unit in question, the complainant no.1 was gainfully employed and the complainant no.2 had retired from his service. A perusal of the application form dated 08.07.2010 submitted by the complainants to the appellants would show that they had agreed to acquire Unit No.109 having Super Area of 551 sq. ft. as End User for BPO, meaning thereby that the aforesaid office premises was intended to be used by the complainants for running a Business Process Outsourcing (BPO) Centre. We are in agreement with the learned counsel for the appellants that by the very nature of its activity, a BPO cannot be run by the two persons. Running a BPO requires installation of telephone network and employment of a number of persons who would carry out the business which is outsourced to the BPO by some firm/company/institution. We are unable to accept the contention of the learned counsel for the complainants that the complainants themselves would have run a BPO without employing any other person to work with them. Therefore, we are satisfied that the office space was purchased by the complainants for undertaking a commercial activity which did not fall within the purview of the explanation attached to Section 2 (1) (d) of the Consumer Protection Act.
9. Since the activity of running a BPO is a commercial activity, we need not examine the other contentions of the learned counsel for the appellants that stipulation for payment of return of ₹31,400/- per month on investment of about ₹18 lacs, which was higher than the return one can get from a bank deposit, is also a clear indicator that in fact, the said office space was acquired for a commercial purpose and not for the self-employment of the complainants.
10. For the reasons stated hereinabove, the impugned order is set aside and the complaint is consequently dismissed with no order as to costs. We however make it clear that the dismissal of the complaint will not come in the way of the complainants approach the Civil Court for the redressal of their grievance and in case, they decide to approach a Civil Court, they also be entitled to seek a provision of Section 14 of the Limitation Act, if such a benefit is otherwise admissible to them in law.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER