State Consumer Disputes Redressal Commission
Vijay Kumar Agrawal vs M/S Amr Infrastructures Ltd. on 19 April, 2017
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Arguments: 19.04.2017 Date of Decision: 25.04.2017 Complaint No. 507/2017 In the matter of: Vijay Kumar Agrawal (HUF) represented through its Karta r/o M-85, Greater Kailash-II Delhi-110 048 ......Complainant Versus M/s AMR Infrastructure Ltd. AMR House 2425/11, Gurudwara Road Karol Bagh New Delhi-110 005 ....Opposite Party CORAM Hon'ble Sh. O.P.Gupta, Member(Judicial) Hon'ble Sh. Anil Srivastava, Member (Non-Judicial) 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes SHRI ANIL SRIVASTAVA JUDGEMENT
Mr. Vijay Kumar Agrawal (HUF) represented through its Karta. R/o M-85, Greater Kailash II, Delhi-48 has filed a complaint u/s 17(1) (i) read with section 17(2) (a) of the Consumer Protection Act hereinafter referred to as complaint against M/s Infrastructure Ltd., AMR House, 2425/11, Gurudwara Road, Karol Bagh, New Delhi-110 005 (the opposite party in short) praying for the release as under:
i) direct the opposite party to pay a sum of Rs. 85 lakhs for having failed to deliver the possession of the shop even after 6 years from the due date as per the terms and conditions of the Memorandum of Understanding alongwith 18% interest w.e.f. date of filing of the present complaint till the date of payment;
ii) pay a sum of Rs. 5/- lakhs as exemplary damages and mental agony caused by the Opposite Party to the complainant for having failed to deliver the possession of the shop on time.
iii) direct to the Opposite Party to pay a sum of Rs. 1,00,000/- to the complainant, as a whole towards litigation costs;
Alternatively;
iv) hand over vacant and peaceful possession of shop being D-06, admeasuring 1466.557 sq. ft. on ground floor in the Great Adventure Mall at Plot No 9 Kessel-i-Valley, Tech Zone free of all encumbrances in the manner as prescribed in the Memorandum of Understanding with complete facilities and fitments in a complete Shopping Mall.
v) direct the Opposite Party to pay a sum of Rs. 84,700/- per month w.e.f. Ist October 2013 till the date of filing of the present complaint alongwith 17% interest.
vi) direct the Opposite Party to pay a sum of Rs. 84,700/- per month to the complainant from the date of filing of the present complaint till the date when the possession of the Shop in a complete Shopping Mall as provided under the MOU is handed over to the complainant alongwith 18% interest thereupon;
vii) direct to the opposite party to bear the increase in service tax and other relevant government taxes after December, 2009.
viii) direct the opposite party to pay a sum of Rs. 1,00,000/- to the complainant, as a whole towards litigation costs;
ix) direct that an amount of Rs. 32,74,821/- only is recovered from the complainant on successful completion and handing over of the complete shop and mall;
x) pass any other and further relief which the Hon'ble Court thinks fit and proper in the facts and circumstances of the case in favour of the complainant and against the opposite party.
The facts of the case are these:-
The complainant had applied for a shop bearing No.D-06 on the Ground Floor in Great Adventure Mall at Plot No. 9, Kessei-i-Valley, Tech Zone, Greater Noida in May, 2008. It was agreed between the complainant and the opposite party that possession of the shop would be handed over by 31st Dec., 2009. For this purpose an amount of Rs. 2,00,000/- was paid by the complainant as token money and further amount of 12,00,000/- was also paid for this purpose. On 19th May, 2008 a memorandum of understanding was entered between the complainant and the opposite party on the relevant terms and conditions of MOU are as under:-
i) Total sale consideration of the shop is Rs.46,74,821/- out of which receipt of Rs. 14 lakhs is acknowledged. The MOU further recognizes that an amount of Rs. 32,74,821/- would be payable by the complainant to the opposite party at the time of possession. All other payments were discharged with.
ii) The Opposite party was to complete the construction of the Mall and shop in all respects and handover possession of the same on or before 31.12.2009;
iii) If the Opposite party fails to deliver possession of the shop within the timeline promised, an amount of Rs.84,700/- per month would be paid by the Opposite Party to the complainant as the compensation for delay in handing over possession w.e.f. January 2010.
iv) If the Opposite Party fails to deliver possession of the shop, an amount of Rs. 85 lakhs would be paid by the Opposite Party to the complainant.
The opposite party has not handed over the possession as agreed to. Consequently the complainant had issued a legal notice which was not responded to. The opposite party illegally addressed communication to the complainant offering possession of the shop which was totally incomplete. Opposite Party while asking the complainant to accept the possession sought payment of Rs.40.78/- lakhs for executing necessary documents. The complainant in response thereto stated that since the said mall and the shop were not ready for taking the possession it would be appropriate if opposite party completes the project. Opposite Party has however stated in response thereto that the completion certificate has already been issued and therefore the complainant can take over the possession.
The complainant however visited the office of the opposite party in July 2014 where he was shocked to see that the shopping mall was far from completion. Accordingly he addressed a communication to the opposite party asking them to first of all get things done before the possession is taken over. Nothing was heard despite Sufficient time has elapsed. Aggrieved by this deficiency of service the complainants have filed a complaint before this Commission.
We have carefully examined the documents as also heard the arguments of the learned counsel for the complainant.
This complaint has been filed by a Hindu Undivided Family through its karta. The property is sought to be purchased by a HUF. Hindu undivided family is a consumer within the meaning of section 2 (d) of the Consumer Protection Act 1986 which says as under:
Section 2 (d) of the consumer Protection Act 1986 posits as under:
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.
Section 2(m)h of the Act define person as under:
"person" includes -
i) A firm whether registered or not; ii) A Hindu undivided family; iii) A co-operative society; iv) Every other association of persons whether registered under the societies Registration Act, 1860 (21 of 1860) or not; We may now advert to the provisions of the Act laying down as to who is a consumer. The principal question which swirls around the whole controversy in the case is whether the purpose to purchase the immovable property is for self use or for commercial purpose to earn profit. The Provision of the Act while defining deficiency excludes anything which has the currency of commercial aspect.
But the point for consideration is whether the immoveable property proposed to be purchased is for self use or other than self use, Karta of a HUF is working for the family as a legal entity but the transaction is certainly not for self use. It would be for a purpose other than self use. If that be the case it would not be proper for us to bring the karta of the family within the ambit of section 2(d) of the Act.
We have heard the learned counsel for the complainants at the time of admission of this case. Learned counsel for the complainant vehemently argued that the property in question is being purchased for HUF.
The property of HUF, that being only a legal entity and not on individual, cannot be treated to be for self use. It may be for the use of the family having a group of person of the same fraternity and clan. If that be case, use of the property for self use is out of question.
A consumer is entitled to file a complaint under the Act if there is any deficiency in service provided or rendered by the service provider.
NCDRC in Monstera Estate Pvt Ltd. Vs. Ardee Infrastructure Pvt. Ltd. IV (2010) CPJ 299 (NC) has held that:-
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. 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.
It was further held in Laxmi Engineering Works Vs PSG Industrial Institute, (1995) 3SCC 583, by the Hon'ble Apex Court as under :
The National Commission appears to have been taking a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit", he will not be a 'consumer', within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion-the expression "large scale" is not a very precise expression-Parliament stepped in and added the explanation to section 2 (d)(i) by Ordinance/ Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression "commercial purpose"-a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a 'consumer' but a person who buys a typewriter or a car for typing others' work, for consideration or for plying the car as a 'taxi', can said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition of expression of expression 'consumer'. if the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of 'self-employment', such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matter but the purpose to which the goods bought are put to. The several words employed in the explanation, viz, "uses them by himself", "exclusively for purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood.
The NCDRC in yet another case of Pratibha Pratishthan & ORS and Allahabad Bank & ORS (IV 2007) CPJ 33 has held as under:
Considering the aforesaid definition of the word 'person', a public trust is not 'person' which can be considered to be a 'consumer' entitled to file complaint before the Consumer Forum. The reasons are:
(i) Trust is not included in the definition of the word 'person'. The Legislature included cooperative society under the definition 'person' but not 'public trust'.
(ii) Secondly, trust is not a legal entity.
Hence, the complainant, Pratibha Pratishthan Trust, which is registered under the Bombay Public Trust Act, 1950, cannot be considered to be 'person' which can file a complaint under the Consumer Protection Act, 1986.
For all these reasons, we are of the considered view that karta of a HUF though a consumer but as Karta cannot be treated to have purchased the property for self use to be within the ambit of section 2 (d) of the Act. Since the immoveable property proposed to be purchased is obviously for a purpose other than self use, the complainant cannot be treated to be a consumer. If that be the case the complainant is not entitled for the relief under claimed the provision of the Act and we order accordingly with no cost.
Let a copy of the order be sent to the parties to the case free of cost as contemplated under the provisions of the Consumer Protection Rules 1987 read with Consumer Protection Regulations 2005 File be consigned to be record room.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER MEMBER(JUDICIAL)