National Consumer Disputes Redressal
Puneet Singh vs Aerens Entertainment Zone Ltd. on 6 October, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1069 OF 2015 1. PUNEET SINGH HOUSE NO. 4159, SECTOR 68, MOHALI, PUNJAB ...........Complainant(s) Versus 1. AERENS ENTERTAINMENT ZONE LTD. 6TH FLOOR, MAHINDRA TOWERS, 2A, BHIKAJI CAMA PLACE, NEW DELHI-110066. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER
For the Complainant : MR. ADITYA WADHWA & MR. VIPUL KUMAR For the Opp.Party :
Dated : 06 Oct 2015 ORDER
The petitioner Puneet Singh has filed instant consumer complaint against the respondent developer alleging deficiency in service on their part in respect of booking of a shop by the complainant in the development project undertaken by the opposite parties. At the outset, the complaint filed is not maintainable. Therefore, we have heard the arguments on the point of maintainability of the complaint.
2. Before adverting the submission made on behalf of the learned counsel for the complainant, it would be useful to have a look on the definition of "Consumer" as envisages under section 2 (1) (d) of the Consume Protection Act., 1986. Relevant definition is reproduced 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}.
3. On perusal of the above, it is clear that a person is a "Consumer" if he buys any goods or hires or avails of any service for consideration but does not include a person who buys the goods or hires or avails of any services for a commercial purpose. The explanation to Section 2 (1) (d) defines the term 'commercial purpose' by providing that the commercial purpose does not include the goods bought and used or the service availed by such person exclusively for the purpose of earning his livelihood by means of self-employment.
4. On bare reading of the complaint as also the development agreement, (copy of which is placed on record) this is a case of booking of a shop in a commercial complex to be developed by the opposite party. Thus, unless the complainant is able to show that she is covered under the explanation to Section 2 (1) (d), she cannot be termed as a "Consumer" and in that event she cannot maintain the consumer complaint. In order to find answer to the question whether the complainant is covered under the explanation to Section 2 (1) (d), it is necessary to have a look on the allegation made in para 4 (A) of the complaint, which is reproduced as under :-
"4. (A) In or around the beginning of 2006, the complainant had intended on starting her own niche boutique at Ludhiana which would inter-alia be engaged in the services of making and selling wedding cards, boxes, wedding stationary, wedding invites, filling, gifts etc. in order to earn her livelihood by way of self-employment. The complainant had gained sufficient expertise in the said services sector owing to her considerably long and rich experience of working with Jotlinkers, a proprietorship firm in Ludhiana which is primarily engaged in providing similar services. It may be noted that the complainant initially worked with Jotlinkers for the period from 21.3.2002 to 31.7.2003 and was further employed with Jotlinkers for a second stint from 5.6.2005 to 30.4.2008. As such, the complainant was on the search and look out for suitable space/premises where she could start the said boutique.
True copies of the relevant Experience Certificates of the complainant dated 31.10.2003 and 5.6.2008 issued by the proprietorship firm "Jotlinkers" are annexed and marked as Annex.1."
5. On reading of the above, it is clear that though the complainant has alleged that she is intended to start her own niche boutique at Ludhiana, she has further alleged that she had been gainfully employed with M/s Jotlinkers during the period from 21.3.2002 to 31.7.2003 and further during the period 5.6.2005 to 30.4.2008. The development agreement which is a basis of the instant complaint was executed on 13.6.2006, meaning thereby that the subject shop was booked by the complainant while she was engaged gainfully as an employee of M/s Jotlinkers during the period 5.6.2005 to 30.4.2008. Therefore, it can be safely concluded that at the time of hiring or availing of service of the opposite party, the complainant was gainfully employed and as such she is not entitled to the benefit of explanation of Section 2 (1) (d) of the Act.
6. Learned Shri Aditya Wadhwa, Advocate for the complainant has contended that actually the complainant al-through had an intention to start her own business and she worked with M/s Jotlinkers only to gain experience. He has further contended her engagement with M/s Jotlinkers during the period w.e.f. 5.6.2005 to 30.4.2008 cannot be termed as gainful employment to earn livelihood. In this context, learned counsel has drawn our attention to experience certificates dated 31.10.2003 and 5.6.2008 purportedly issued by M/s Jotlinkers. We do not find merit in the above contention. The relevant certificate purported to have been issued by M/s Jot Linkers dated 05.06.2008 reads as under :
"This is to certify that Mrs.Puneet Singh W/o Mr.Jaspal Singh has worked with our firm "JOT LINKERS" for following period :
From 5.6.2005 to 30.4. 2008 (Friday and Saturday only) as Assistant in administration and operation of our works.
During this time, she gained a good practical experience and insight into the administration and operations regarding making of wedding cards, boxes, wedding, stationary, wedding invites, fillings, gifts etc. She was able to handle most aspects of this business on her own. In addition, because of her creative ability, she helped our business to increase further.
We found her sincere, hardworking and very professional and result oriented during her tenure usual like her previous experience with our firm. She has a friendly, outgoing personality, a good sense of humour and works well as part of a team.
Her character and conduct during this period has been exemplary. We take this opportunity to thank her for her contribution and wish her success in her future endeavous and will love to work with her again in future."
7. On reading of the above, it is clear that the complainant was employed with M/s Jot Linkers as an Assistant in Administration. It does not matter whether she was working full time or two days only. The real question is whether she was employed and earning livelihood? The certificate is conspicuously silent about the salary of the complainant during the said period. Therefore, it cannot be said that at the time of booking of said shop, the complainant was unemployed and she booked it exclusively for the purpose of earning livelihood by way of self-employment.
8. Further, para 4 (v) of the complaint reads as under:
"It is also pertinent to note that the Cousin Brother of the complainant namely Sh. Rajbir Singh Sabherwal, jointly with the complainant, had also invested in another shop with the Opponent. Despite the fact that the Opponent has taken huge sums of money for this shop, the Opponent has not handed over the possession as the construction has not been completed, neither has the opponent returned the money that was invested with it. This forms a separate cause of action for which the present complainant reserves her right to pursue all remedies open to her including remedies under civil/criminal/consumer law."
9. On reading of the above, it is clear that not only the subject shop but the complainant had booked one other shop in the project jointly alongwith her cousin brother Rajbir Singh. This fact clearly indicate that complainant had booked the shops exclusively for commercial purpose and not for earning livelihood by way of self-employment.
10. In view of the above, we are of the view that the complainant does not fall within the definition of the "Consumer" as envisaged under section 2 (1) (d) of the Consumer Protection Act. Thus, she cannot maintain the consumer complaint. The complaint is accordingly dismissed.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER