State Consumer Disputes Redressal Commission
Sh. Roopinder Singh Nahal vs Shalimar Estate Private Limited on 1 June, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint No. : 36 of 2011 Date of Institution : 23.05.2011 Date of Decision : 01.06.2012 Sh. Roopinder Singh Nahal, legal heir of late Smt. Harbhajan Kaur Nahal, widow of Brigadier (Retired) H.S. Nahal, aged about 61 years, r/o House No.16, Sector 69, Mohali, 160055 Punjab. Complainant V e r s u s Shalimar Estate Private Limited, through its Managing Director, Corporate Office : SCO Nos. 110-111, Madhya Marg, Sector 8-C, Chandigarh UT 160009. ....Opposite Party Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Neeraj Pal Sharma and Sh. Gaurav Bhardwaj, Advocates for the complainant Sh. Arun Kumar, Adv. for the OP.
PER NEENA SANDHU, MEMBER This complaint was originally filed by Smt. Harbhajan Kaur Nahal, who died during the pendency thereof on 21.10.2011, and, on the basis of an application, duly supported by a copy of the Will dated 7.8.2003 (Annexure A-2), Roopinder Singh Nahal, her son and legal heir, was impleaded as complainant in her place as envisaged by Section 13(7) of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only).
2. The facts of the complaint, in brief, are that Smt. Harbhajan Kaur Nahal (now deceased), in order to start another source of livelihood, purchased a product brochure, alongwith an application form, from the opposite party, for allotment of one showroom in Shalimar Plaza, Mohali and submitted the same within the currency of the scheme, which opened on 2.2.2006, and closed on 17.2.2006.
The draw of lots for the allotment of showroom was held on 25.2.2006 and the opposite party informed the complainant that she was successful in the same and a showroom in Category C measuring 400 sq. ft. on Floor Level IV stood allotted to her. She paid Rs.23,30,000/- to the opposite party, without any delay, on different dates, being 70% of the total cost of the showroom. As per the brochure, the possession was to be handed over within two years, but the same was not done, despite many visits and demand letter dated 4.2.2010 sent to the opposite party. Hence this complaint under Section 17 of the Act alleging that the aforesaid acts of the opposite party, amounted to deficiency, in rendering service, and unfair trade practice, was filed.
3. The opposite party, in its written reply, took up the preliminary objections, that the complaint was not maintainable; that the complainant did not fall within the definition of a consumer; and that the complaint involved complicated questions of law and fact. On merits, the fact with regard to the booking of showroom and the payments made by the complainant were admitted. However, it was stated that vide acceptance-cum-demand letter dated 28.2.2006, the complainant was only informed regarding acceptance of application No.1815 for registration of allotment of commercial showroom of Category C in Shalimar Plaza, I.T. City, Mohali and it was, nowhere, stated therein that the showroom was allotted to her. It was further stated that the construction of entire ten storey building, including two basements, had been completed, and the finishing works were in progress. It was further stated that delay in the completion of project was due to force majeure circumstances. It was denied that there was any deficiency, in rendering service, or indulgence into unfair trade practice, on the part of the opposite party.
4. The parties led evidence, in support of their case.
5. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
6. The contention of the Counsel for the complainant was that initially this complaint was filed by Smt. Harbhajan Kaur Nahal, against the opposite party, as she had booked a showroom, in its project, to start another source of livelihood, but the opposite party failed to deliver possession of the same (showroom) as per brochure (Annexure C-1). He further submitted that after the death of Harbhajan Kaur Nahal, the present complainant was substituted, in her place. He further submitted that the complainant fell within the definition of a consumer, and was entitled to the refund of the deposited amount, as the possession of the showroom was not delivered by the stipulated date or even till the time of filing the complaint.
7. On the contrary, the Counsel for the opposite party submitted that the complaint was not maintainable, as the complainant did not fall within the definition of a consumer as the showroom was allotted for running commercial activity for earning huge profits. In support of his contention he placed reliance upon Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd.-IV (2010) CPJ 299 (NC), SKG Engineering Pvt. Ltd. Vs. Emaar MGF Land Pvt. Ltd.-III (2010) CPJ 260 (NC) and Rajasthan State Industrial Development and Investment Corporation Ltd.(RIICO) Vs. Diksha Enterprises-III(2010) CPJ 333 (NC).
8. The core question, that arises for determination, is as to whether, Sh. Roopinder Singh Nahal, complainant, falls within the definition of a consumer qua the opposite party. There is, no doubt, that Sh. Roopinder Singh Nahal stepped into the shoes of Smt. Harbhajan Kaur Nahal (deceased) being her legal heir. But, in order to establish that he was to use the showroom, for earning his livelihood by means of self-employment, it was his bounden duty to prove the same by producing the cogent evidence. However, he has failed to do so. Moreover, from the Will dated 7.8.2003 (copy Annexure A-2), attached with the application for impleadment of the legal heir of the deceased, it is clear that Sh. Roopinder Singh Nahal is working as a 2nd Officer. It is, thus, established that he is earning his livelihood, from the job, he is doing and, as such, the showroom was booked not for earning livelihood, by means of self-employment. In Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. (supra), the complainant booked a showroom, with the opposite parties. When the possession was not given, it filed a complaint, alleging deficiency in service. It was held that the purchase of space was for commercial purpose and the complainant was not a consumer. Similar principle of law, was laid down, in SKG Engineering Pvt. Ltd. Vs. Emaar MGF Land Pvt. Ltd. (supra) and Rajasthan State Industrial Development and Investment Corporation Ltd.(RIICO) Vs. Diksha Enterprises (supra). The principle of law, laid down in the aforesaid cases, is fully applicable to the instant case. Hence, Sh. Roopinder Singh Nahal is not a consumer within the meaning and scope of Section 2(1)(d) of the Act, and the complaint, being not maintainable, is liable to be dismissed on this ground alone.
9. In view of the above discussion, without touching the merits of the case, the complaint is dismissed, leaving the parties to bear their own costs.
10. The complainant shall, however, be at liberty to resort to any other legal remedy, which may be available to him.
11. Copies of this order be sent to the parties free of charge.
Pronounced.
01.06.2012 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER hg