National Consumer Disputes Redressal
M/S. Aps International Private Limited ... vs M/S. Emaar Mgf Land Limited on 8 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 576 OF 2015 1. M/S. APS INTERNATIONAL PRIVATE LIMITED & ANR. Having its Registered office at B-XXX-891, Near Mothu Ram Pump, Sherpur, Ludhiana ...........Complainant(s) Versus 1. M/S. EMAAR MGF LAND LIMITED Through its Managing Director/Director/Authorized Person, 28, Kasturba Gandhi Marg, New Delhi - 110 001. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. B.B. Singh Sobti, Advocate
With Ms. Sakie Jakharia, Advocate For the Opp.Party :
Dated : 08 Sep 2015 ORDER
JUSTICE J.M.MALIK
1.The key controversy swirls around the question of maintainability of this complaint, i.e., "Whether, M/s. APS International Private Limited, the complainant, is a consumer under Section 2(1)(d)(i) and (ii) with the Explanation appended to it, of the C.P. Act, 1986?".
2. The complainant, has filed the present complaint, on 06.07.2015. Sh. P. Prem Kumar Gupta, the complainant No.2 is its Managing Director and vide Resolution dated 15.05.2015 passed by the company, he has been authorized to file this case. On 17.01.2008, the complainants paid an amount of Rs.31,74,906/- to M/s. Emaar MGF Land Ltd., the OP, towards registration amount for shops/commercial area measuring 5858 sq.ft., in Mohali Hills, Sector-105, SAS Nagar, District Mohali, Punjab, while executing the advance registration form for expression of interest, marked as Annexure C-1. On 06.02.2008, both the parties entered into a Central Plaza Premises Buyer's Agreement, Annexure C-2, whereby they impressed upon the complainants to purchase commercial area being Unit No.55 measuring 5858 sq.ft. on different floors and for each floor, the OP entered into separate Central Plaza Premises Buyer's Agreements with the complainants for the area at sale price mentioned against each other, as under :
Sl.No. Floor Area (sq.ft.) Sale price (in Rs.)
1.
BG (Basement & Ground Floor) 2012 89,17,633/-
2. FF (First Floor) 1282 54,51,651/-
3. SF (Second Floor) 1282 43,32,465/-
4. TF (Third Floor) 1282 73,72,872/-
3. The complainants were made to understand that the development activities are in full swing and that the possession, complete in all respects, with all amenities, would be handed over, within a period of 36 months. During the period, from 14.01.2008 to 10.12.2011, the complainants paid various cheques, ten in number and the total amount of Rs.2,13,02,114/-. During the period from 31.03.2011 to 01.03.2015, the OP was requested on regular basis to deliver the shops/commercial space along with all amenities and facilities as promised by them and to comply with all the terms, but no positive response was received from the OP. On 31.03.2015, due to complete failure on the part of OP to comply with their contract, the OP was requested to return the whole of the amount, along with interest, to pay the compensation on account of financial loss suffered by the complainants and also to pay the amount towards harassment caused to the complainants. Ultimately, the present complaint was filed, with the following prayers :-
"It is, therefore, prayed that the complaint may kindly be allowed with costs and the OP may be directed to refund the whole of the amount, i.e., Rs.2,13,02,114/- paid by the complainants to the OP along with interest @ 24% p.a., w.e.f. the date of payment so made;
And To pay damages of Rs.50.00 lacs for highly negligent and deficient services, illegal and unlawful acts and for harassment and humiliation, stress, strain and mental agony caused to the complainants;
And The OP be further directed to pay compensation @ Rs.50/- per sq.ft. per month on account of not giving of possession of the shop / space along with interest @ 24$ p.a. on the said payable amount;
And The complainants be also awarded punitive compensation of Rs.10.00 lakhs along with litigation expenses to the tune of Rs.2,00,000/- for compelling them to file the present complaint".
4. We have heard the counsel for the complainants. He has cited a number of authorities in support of his case. CC No.575 of 2015, titled M/s. APS International Pvt. Ltd. & Anr. Vs. M/s. Emaar MGF Land Ltd., was admitted by Bench No.6 of this Commission on the limited ground of interest and costs of litigation. The counsel for the complainants also cited another judgment of this Commission reported in FA No. 342 of 2014, titled Emaar MGF Land Ltd. & Anr. Vs. Karnail & Anr, decided on 25.07.2014.
5. It must be borne in mind that in that case (FA No.342/2014), the complainant was not a private limited company. Consequently, the facts of that case hardly dovetail with the facts of this case.
6. This plea is palliative and does not delve deep to the roots of malady. It must be borne in mind that this complaint has been filed on behalf of M/s. APS International Pvt. Ltd. & Anr., on 06.07.2015, after the amendment of the C.P.Act, 1986, which became effective from 15.03.2003. Section 2(1)(d) of the C.P. Act, defines consumer, as follows :-
"(d) 'consumer', means any person, who -
(i) 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 boys 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 who obtains such goods for resale or for any commercial purpose; or
(ii) 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 or avails of the service 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 purpose.
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".
[EMPASIS SUPPLIED].
7. In Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. - IV (2010) CPJ 299 (NC), this Commission held, as under :-
"Housing - Purchase of space for commercial purpose - There was delay in possession. Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed. Deficiency in service was alleged. It was held that even if private limited company was treated as 'person', purchase of space could not be for earning its livelihood. Purchase of 'space' was for commercial purpose".
8. In Shika Birla Vs. DLF Retailers Developers Ltd., Consumer Complaint No. 183 of 2012, the Hon'ble Apex Court, in Civil Appeal No.5458 of 2013, dated 08.07.2013, upheld the order of this Commission, while observing that the complainant does not fall within the definition of 'consumer', under Section 2(1)(d).
9. In Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India) Ltd., & Anr., Consumer Complaint No.296 of 2011, decided by this Commission, on 03.07.2012, the Hon'ble Apex Court, in Civil Appeal No. 6229 of 2012, decided on 14.09.2012, upheld the order of this Commission that the petitioner was not a 'consumer' when he intended to purchase some permanent accommodation at Mumbai, for his stay during his business visits, from Delhi, to save on the expenditure incurred for hotels. For that purpose he had booked two flats.
10. In M/s Purusharth Associates Pvt. Ltd. Vs. M/s Uppal Housing Ltd. Plaza & Anr., this Commission in Consumer Complaint No.112 of 2012, on 05.07.2012, observed in paras 11 and 12 of its judgment , as under :
"11. Learned counsel for the complainant argued that these flats will be used for the officers of the Company. Learned counsel for the complainant could not deny that those officers would transact the commercial activity. A bare-look on this Resolution clearly goes to show that these flats would be meant for commercial purposes."
12. The complaint being not maintainable, is therefore, dismissed. Nothing will debar the complainant to seek remedy before the appropriate Forum, as per law.
11. The above-mentioned case (M/s. Purusharth Associates Pvt. Ltd.) was dismissed in limine. Aggrieved by that order, the complainant approached the Apex Court. The Hon'ble Supreme Court in Civil Appeal Nos.8990-91/ 2012, vide its order dated 07.01.2013, dismissed the same.
12. In Subhash Motilal Shah (HUF) & Ors. Vs. Malegaon Merchants Co-op. Bank Ltd., the petitioner, 'HUF', had opened a current account to be used for commercial purpose. It was held that it was not a 'consumer', by this Commission vide its order dated 12.02.2013 and the SLP filed against the said order, was dismissed by the Hon'ble Apex Court in Civil Appeal No. 39200/2013, dated 13.01.2014
13. In a recent authority, reported in Civil Appeal No. 5409 of 2015, titled Muthoot Finance Ltd. Vs. M/s. Godrej & Boyce MFG Co. Ltd., decided on 09.07.2015, filed against the order of this Commission passed in CC No.402 of 2014, dated 17.02.2015, the Hon'ble Supreme Court, approved the observations of this Commission, made therein, as under :-
"Therefore, from whatever angle we may look at it, it cannot be denied that the strong room doors were purchased by the complainant company for furthering its business activities, i.e., for a commercial purpose".
14. The observations of this Bench, made in CC No. 306 of 2014, titled Pharos Solutions Pvt. Ltd. Vs. Tata Motors Ltd. & Ors., dated 01.09.2014, was upheld by the Hon'ble Supreme Court in Civil Appeal No.9724 of 2014, vide its order dated 03.11.2014, as under :-
"19. The car in hand was not purchased exclusively for the purposes of earning livelihood by means of self-employment for the legal Director of the Company. It is not for the livelihood of the Director or personal use of the Director. He has to use the car only for commercial purposes. There is no resolution for purchase of car. In case the companies are allowed to save the court fees, the very purpose of ordinary consumer or as defined by the Act shall stand defeated. Consequently, we find that the present case is not maintainable and the same is, therefore, dismissed in limine".
15. Consequently, the complainants do not qualify to be 'consumers'. Therefore, the complaint case is dismissed. However, there lies no rub for the complainants to seek remedy before any other appropriate forum or civil court, as per law. Further, they may seek help from the law laid down in the celebrated authority reported in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, on the question of limitation.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER