National Consumer Disputes Redressal
Rajesh Gulati And Another vs Dlf Commercial Complexes Limited on 18 March, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 50 OF 2011 1. RAJESH GULATI AND ANOTHER S/o. Shri. K.L. Gulati,
H-451, First Floor New Rajinder Nagar New Delhi-110060 2. ANIL KUMAR SUKHIJA S/o. Late Shri Kewal Krishan, R-691, First Floor New Rajinder Nagar New Delhi-110060. ...........Complainant(s) Versus 1. DLF COMMERCIAL COMPLEXES LIMITED 1-E, Jhandewalan Extension Naaz Cinema Complex New Delhi-110055. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER
For the Complainant : Mr. Kapil Kher, Advocate with
Ms.Anisha Mahajan, Advocate For the Opp.Party : For the Opp. Party : Mr. R.Narain, Advocate with
Mr. Siddharth Banthia, Advocate
Dated : 18 Mar 2016 ORDER
Rajesh Gulati has filed instant consumer complaint No.50 of 2011 against the M/s DLF Commercial Complexes Ltd. alleging deficiency in service on the part of the opposite party in respect of commercial unit booked by the complainants in the development project "DLF Tower", Shivaji Nagar, New Delhi.
2. The grievance of the complainant is that pursuant to the allotment, they have made a substantial payment to the opposite party/developers but the opposite party has failed to fulfil their promise of construction and delivery of the office premises, within the stipulated time. The consumer complaint is resisted by the opposite party on merits. Besides, preliminary objection has been taken that the complainants are not covered within the definition of "consumer" as envisaged under Section 2 (1) (d) of the C.P.Act, 1986 and, therefore, they cannot maintain the consumer complaint. Opposite party has also moved an application for rejection of the complaint.
3. On 15.4.2013, taking note of the fact that the issue raised by the opposite party is a mixed question of law and facts, we directed the opposite party to file affidavit evidence so far as the issue of maintainability is concerned. Both parties have filed affidavit evidence with regard to the issue whether or not the complainant falls within the definition of the "consumer"?
4. We have heard learned counsel for the parties on the issue of maintainability.
5. Learned counsel for opposite party has contended that admittedly, the office space was booked by the complainants jointly in a commercial complex being developed by the opposite party. Therefore, it is clear that the services which are alleged to have been availed, were availed by the complainant for commercial purpose and therefore, in view of the exclusion provided in Section 2 (1) (d) (ii), the complainants are not a consumer and as such they cannot raise a consumer dispute by filing a consumer complaint.
6. Learned counsel for the complainant on the contrary has contended that the case of the complainant is covered under the explanation to the Section 2 (1) (d) (ii) which gives a restricted meaning to the commercial purpose. It is argued that the complainants booked the premises in question with the intention to use the same for running their office to earn their livelihood by way of self-employment. In support of his contention, learned counsel has relied upon judgment of coordinate Bench of this Commission in CC No.88/2012 Kushal K.Rana Vs. M/s DLF Commercial Complexes Ltd. decided on 9.9.2014.
7. We have considered the rival contentions. It is not disputed that the complainants had booked the office space in the commercial project undertaken by the opposite party. Therefore, if we go by the definition of "consumer" as envisaged under Section 2 (1) (d) (ii), it is clear that the complainants do not fall within the definition of "consumer" as they have availed of the services for the commercial purpose, unless their case is covered under the Section 2 (1) (d) of the C.P.Act.
Section 2 (1) (d) of the Act defines the term "Consumer" as under :
2. (1) (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 buys 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 services 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}.
8. On reading of the above, it is clear that in order to avail the benefit of the explanations, the onus lies on the complainant to show that they have availed the services of the opposite party exclusively for the purpose of earning their livelihood by means of self-employment. In order to find out whether or not the complainants are covered within the explanation, we have perused the affidavit evidence filed by the parties on the issue of maintainability.
9. So far as the explanation is concerned, para 5 and 28 of the affidavits of the respective complainants are relevant. Both the complainants have filed affidavit with identical language. Para 5 and 28 of the respective affidavits are reproduced as under :-
"5. That on the basis of information provided by the respondent and on the assurance given by it to the effect that the respondent would complete the construction of the said complex within three years from the date of booking, for my use, I along with the complainant no.2 applied for allotment of a unit in the said complex/DLF Towers, at a consideration of Rs.1,82,88,000/- plus Rs.6,00,000/- towards parking space and as per terms and conditions, then intimated, and paid a sum of Rs.7,50,000/- towards booking amount, vide following cheques :
Cheque No.000046 dated 8.3.2008 for Rs.3,75,000 drawn on Kotak Mahindra Bank Ltd., payable at New Delhi and Cheque No.756899 dated 8.3.2008 for Rs.3,75,000/- drawn on Indian Bank, payable at New Delhi.
Both the cheques were duly acknowledged vide receipt No.QEC/Sales/DSH427/SHP020R-163609 dated 8.3.2008. Copy of the receipt dated 8.3.2008 has been filed on record and is exhibited as Exhibit CW-1/1.
28. That since the respondent had not yet commenced any construction work at the site and in the facts and circumstances the respondent will not be able to complete the construction work at site and will not be able to deliver the said unit to me alongwith the complainant no.2 as it was promised while seeking booking from me alongwith the complainant no.2, the respondent is guilty of having rendered deficient services, and committed unfair trade practices. The respondent by its said conduct has also caused damage and loss to me alongwith the complainant no.2 as I alongwith the complainant no.2 have not been able to get the possession of the unit booked by us, which was for our own personal use, and for the said reason, I alongwith the complainant no.2 value the said loss and damage at Rs.5,00,000/- and the said amount is payable by the respondent to me alongwith the complainant no.2."
10. On reading of the above, it is clear that if the affidavits are to be believed the subject unit was booked by the complainants jointly for their personal use. Affidavit nowhere states that subject unit was booked exclusively for the purpose of earning livelihood by way of self-employment. Therefore, in our considered view the case of the complainants is not covered, within the exclusion clause. Reference be made to the decision of this Bench in the matter of Inder Nath Mehra & Ors. Vs. Purearth Infrastructure Ltd. decided on 15.5.2015.
11. As admittedly, the commercial unit was booked by the complainants, it is obvious that the services of the opposite party were availed for commercial purpose and as such, in view of the exclusion carved out under Section 2 (1) (d) (ii) of the C.P.Act, 1986, the complainants are not the "consumers" and as such they cannot maintain the consumer complaint. So far as judgment of Kushal K.Rana (supra) is concerned, it is based upon its own peculiar facts and as such not applicable to the facts of the case.
12. At this stage, learned counsel for the complainants submits that the Bench should consider that the despite of a huge amount of payment made by the complainant against the consideration amount, the opposite party has not constructed the relevant unit and no service has been given to the complainant. This plea is of no avail to the complainant for the reason that complainants are not the "consumers" and as such they cannot raise a consumer dispute in the consumer fora. Their remedy lies raising a consumer dispute on the basis of the agreement.
13. In view of the discussion above, the instant complaint is not maintainable. Hence, the complaint is rejected with liberty to the complainants to avail of their remedy by moving appropriate forum.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER