National Consumer Disputes Redressal
Snigdha Singh vs M/S. Bhasin Infotech & Infrastructure ... on 24 August, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 424 OF 2015 1. SNIGDHA SINGH W/o. Sh. Rupak Kumar Singh, R/o. 4-A, 380, Budh Vihar, Majhola Delhi Road, Moradabad U.P. ...........Complainant(s) Versus 1. M/S. BHASIN INFOTECH & INFRASTRUCTURE PVT. LTD. Regd. Office: 28, Raja Garden, New Delhi - 110 015. ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. J.K. Chawla, Advocate For the Opp.Party : Mr. Ravi Krishan Chandra, Advocate Mr. P.N. Joshi, Auth. Rep.
Dated : 24 Aug 2017 ORDER JUSTICE V.K.JAIN, (ORAL)
The complainant booked commercial space comprising two units bearing No.132 & 133 having approximated super area of 956.08 sq.ft. with the OP in a building, namely, 'Grand Venezia' which the OP was to construct at Greater Noida. The sale consideration for the commercial space was agreed at Rs.6883776/-. The case of the complainant is that the aforesaid commercial space was booked by her exclusively for earning her livelihood. The complainant has already paid a sum of Rs.5874453/- to the opposite party. The possession of the aforesaid commercial space, as per clause No.26 (a) of the allotment letter dated 13.7.2007, was to be delivered to the complainant within 36 months from the date of the said letter, subject of course to force majure circumstances. Vide allotment letter being dated 13.7.2007, the possession ought to have been offered by 13.7.2010. The OP sent a letter dated 31.1.2015 to the complainant informing her that the unit allotted to her was nearly completion and requiring her to pay the balance amount of Rs1776729/-. The payment of Rs.5874453/- already received from the complainant was acknowledged in the said letter. On receiving the aforesaid letter, the complainant sent a letter to the OP claiming therein that the area of her units had been reduced and the building was still not complete. She further stated that unless the Mall was operational, the shop could not be put to any use in that condition. She expressed her willingness to take possession subject to completion of the Mall building and same becoming operational.
2. The OP, without adverting to the plea taken in the aforesaid letter of the complainant, sent a fresh letter dated 3.4.2015 demanding the balance amount from her. The complainant thereafter served a legal notice upon the OP and then approached this Commission by way of this consumer complaint, seeking possession of the units allotted to her by the OP along with compensation or in the alternative refund of the amount paid by her along with compensation in the form of interest.
3. The complaint has been resisted by the OP which has taken a preliminary objection that the complainant having booked a unit in a commercial complex and the said complex being intended for commercial purposes, she is not a consumer as defined in the Consumer Protection Act. It is also claimed that the complainant had booked the aforesaid unit as an investment for making gains by selling the same at a higher price. However, neither the booking of the commercial space by the complainant nor the payment already received from her has been disputed in the written version filed by the OP. This is also the plea taken in the written version of the OP that the complainant had failed to pay the balance amount and had prematurely filed this complaint. It is also stated in para 4 of the written version on merits that the OP is ready and willing to give possession of the commercial space booked by the complainant since the construction is complete.
4. The first question which arises for consideration in this complaint is as to whether the complainant can be said to be a consumer in terms of section 2(1)(d) of the Consumer Protection Act. The aforesaid provision excludes from the ambit of the term consumer, a person who hires or avails services for a commercial purpose provided, but it expressly saves use by a person of the goods bought or services hired or availed by him exclusively for the purpose of earning his livelihood by means of self-employment. Therefore, if the complainant booked the commercial space with the OP for the purpose of earning her livelihood by means of self-employment, she would still be a consumer in terms of the Consumer Protection Act despite the premises booked by her being a commercial premises. As noted earlier, the complainant has specifically averred in the complaint that the commercial space was booked by her exclusively for earning her livelihood. The same is her case in the affidavit filed by her by way of evidence. The OP has taken a stand that the commercial space was booked by the complainant as investment purposes for making gains by selling the same at a higher price. Though the complaint does not specify to which particular use the complainant wanted to put a commercial space in question, the learned counsel for the complainant states that she is ready to file an affidavit specifying how she would have used the space for earning her livelihood by way of self-employment. He, however, points out that the OP made no attempt to elicit her response in this regard since no application either for cross-examination of the complainant or for serving interrogatories on her to elicit the use to which she wanted to put the aforesaid commercial space was filed by the OP. No evidence has been led by the OP to prove that the commercial space in question was booked by the complainant as an investment for the purpose of making gains by selling the same at a higher price. In the absence of any attempt to cross-examine or interrogate the complainant coupled with the failure of the OP to produce any evidence to prove that the space was booked as investment for the purpose of selling the same at a higher price, there is absolutely no reason to disbelieve the averment made by the complainant in this regard on oath.
5. The learned counsel for the OP has drawn my attention to the last sentence of a letter from the complainant to contend that the shop in question was intended to be let out by her. The aforesaid last sentence reads as under:-
"I am ready to take possession subject to completion of the Mall building and it becoming operational so that shops can be put to you."
6. The copy filed by the complainant is a typed copy of the letter and neither the original letter has been filed by the OP nor any photocopy of the said letter has been filed by the complainant. Considering the whole of the above-referred letter, I have no doubt in my mind that the complainant had stated that she was ready to take possession subject to completion of the Mall building and it becoming operational so that the shops can be put to 'use'. The word 'you' seems to have been typed in place of the word 'use' either in the typed copy or may be in the letter itself. But, the intention is evident that the complainant wanted to put the shops to 'use' on completion of Mall building.
7. The learned counsel for the OP relies upon the decision of this Commission in Rajesh Gulati & Ors. Vs. DLF Commercial Complexes Ltd. - CC No.50 of 2011 decided on 18.3.2016. The aforesaid judgement is clearly distinguishable on facts since in the above-referred matter, the office space was booked jointly by the complainants and, therefore, the Commission did not accept their plea that the commercial unit was booked for the purpose of earning livelihood by way of self-employment.
On the other hand, in the present case, the complainant alone has booked the commercial space comprising two units. What is important is that both the units were adjoining units and the allotment letter gives a combined area of both the units instead of giving their separate areas, thereby clearly indicating that they were intended for use of one and the same person.
8. The learned counsel for the OP also contends that since the agreed sale consideration was less than Rs.1 crore, this Commission lacks pecuniary jurisdiction to entertain the complaint and relies upon the decision of this Commission in Sumit Kumar Vs. Orris Infrastructure Pvt. Ltd. - CC No.1116 of 2017 decided on 5.5.2017.
9. On perusal of the complaint, I find that the complainant has claimed the relief of possession of the commercial space booked by her with compensation or in the alternative refund of the entire amount paid by her along with compensation in the form of interest. Since this Commission has in the past awarded compensation in the form of interest even @ 18% p.a., the complaint cannot be out rightly rejected, if interest is claimed @ 18%. Since one of the reliefs claimed in the complaint is refund of the amount paid by the complainant to the opposite party, the said relief also has to be within the pecuniary jurisdiction of the consumer forum before which the complaint is instituted. Had the complaint been instituted before the concerned State Commission, the relief of refund of the principal amount along with compensation @ 18% p.a could not have been claimed since the aggregate of the aforesaid two amounts would come to more than Rs.1 crore in this case. If the compensation in the form of interest @ 18% p.a. from the date of each payment made by the complainant is added to the agreed sale consideration, the aggregate comes to more than Rs.1 crore. Therefore, this Commission does possess the requisite pecuniary jurisdiction to entertain the complaint.
10. The learned counsel for the OP relies upon the decision of this Commission in Sunil Gupta Vs. Today Homes & Infrastructure Pvt. Ltd. - CC No.50 of 2011 and Chilukuri Adarsh Vs. Ess Ess Vee Construction decided on 2.7.2012 and contends that the consumer complaint in respect of two units booked by the complainant is not maintainable . As noted earlier, though the complainant booked two units, the allotment letter gives a combined area of both the units and this is the case where one allotment letter has been issued for a commercial space comprised in two commercial units booked by the complainant. This is not a case where buyer enters into two separate agreements for purchase of two independent units. Here, the allotment is common and the area of the units given in the allotment letter is a combined area of both the units. Therefore, the cause of action with respect to the commercial space booked by the complainant is one cause of action arising out one booking made by the complainant and a single allotment letter issued to her by the OP. Therefore, the judgements relied upon by the learned counsel for the OP has no application to the facts and circumstances of this case.
11. The next question which arises for consideration is as to what relief the complainant is entitled in the facts and circumstances of the case. The learned counsel for the complainant states on instructions that the complainant is ready and willing to accept possession of the commercial space booked by her with adequate compensation. Though in the written version filed by the OP, it was stated that the OP was ready and willing to offer possession to the complainant, the learned counsel for the OP states on instructions that the aforesaid commercial space is no more available for delivering its possession to the complainant on account of various court orders. Therefore, the complainant is entitled to refund of the entire amount paid by her to the OP along with appropriate compensation in the form of interest. The learned counsel for the complainant states that though the complainant had claimed @ 24% p.a., she is restricting her claim to compensation in the form of simple interest @ 10%, in order to avoid further litigation in the matter. Considering the rates of interest prevalent during the period starting from the booking of the commercial space by the complainant, the claim for compensation in the form of interest @ 10% is eminently justified. The complaint is, therefore, disposed of with the following directions:-
(i) The opposite party shall refund the entire amount of Rs.5874453/- paid to it by the complainant along with compensation in the form of simple interest @ 10% p.a. from the date of each payment till the date on which the aforesaid amount along with compensation in the form of interest in terms of this order is paid.
(ii) The opposite party shall pay a sum of Rs.25000/- as the cost of litigation to the complainant.
(iii) The payment in terms of this order shall be made within three months from today.
......................J V.K. JAIN PRESIDING MEMBER