State Consumer Disputes Redressal Commission
Mr. Ashmant Agarwal & Anr. vs M/S Amr Infrastructure Ltd. on 26 September, 2017
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision:26.9.2017 Complaint Case No.1181/2015 In the matter of: Mr. Ashmant Agarwal Ms. Usha Agarwal Both Resident of 37, Nitikhand-III Indirapuram, Ghaziabad U.P.-201014. ....Complainants Versus M/s. AMR INFRASTRUCTURES LTD. Head office at AMR House, 2425/11 Gurudwara Road Karol Bagh, New Delhi Through its Director/Authorized person ............Opposite Party CORAM Justice Veena Birbal, President. Ms. Salma Noor, Member.
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or Ms. Salma Noor, Member This is a complaint under Section 12 of the Consumer Protection Act 1986 (in short "the Act") filed by the two complainants related to each other being son and mother respectively.
Brief facts of the case are that the father of the complainant No.1 and husband of the complainant No. 2 is a retired government servant and out of retirement benefits as well as family savings, the complainant No. 1 alongwith her mother Usha Agarwal (complainant No. 2) who is a senior citizen about 67 years of age booked an office space measuring 500 sq. ft. in 'MANTHAN' in their name by giving an amount of Rs.15.00 lakhs to the OP during the period from March 2012 till April 2012. According the complainant Rs.12 lakhs were paid through 6 number of cheques and Rs. 3 lakhs in cash. That an MOU dated 5.5.12 was signed between the parties. That as per terms of MOU the possession was to be delivered by the OP by May 2012.
The grievances of the complainants are that the project of the OP has not even started even after a period of five years. In view of the MOU signed between the parties, the complainants were to receive Rs.15,000/- per month till the final date of possession. In the beginning the OP provided some post dated cheques to the complainants. The payment of assured return after Sept., 2014 was stopped.
Further grievance of the complainants is that apart from the above condition a form 15-H was being submitted by the complainants to the OPs in advance even than the OP has intentionally collected TDS for the month of March, 14, April, 14 and May, 2014 but not deposited the same with the income tax department. Neither receipts were provided to the complainants.
Further allegations of the complainants are that on behalf of the OP Mr. B.G. Soni informed the complainant No. 1 that the project will not be completed in near future. Therefore, the complainants asked the OP to return their money to the tune of Rs.20,00,000/- with 24% interest rate. Apart from that complainants also claimed Rs.50,000/- on account of mental pain and agony, loss of business and deficient in service on the part of OP but the OP failed to take any action. Thereafter, the complainants also filed various complaints to SHO, PS Karol Bagh, Commissioner of Income Tax, Joint Secretary (Revenue), Ministry of Finance, Govt. of India.
As OP did not refund the money, the complainants filed a complaint with the following prayers:-
to pay Rs.25,75,000/- on account of amount being deposited by complainant plus Rs.15000/-on account of agreed monthly rentals w.e.f. 30.4.2012 till its final disposal, alongwith 24% interest to complainants.
to pay Rs.1,05,000/- on account of assured returns as per agreed terms of agreement cum MOU alongwith 24% interest of complainants.
to pay Rs.5,00,000/- on account of mental pain and agony, harassment caused by respondent as well as unfair trade practice on the part of respondent.
Notices were issued to the OP. OP appeared but did not file its written statement despite various opportunities given and vide order dated 19.8.16 proceeded ex-parte.
Complainants filed their ex-parte evidence by way of affidavit and written arguments.
We have heard learned Counsel for the complainant on the maintainability of complaint and perused the record. In order to appreciate the contention of the complainant, it would be useful to have a look on the definition of 'consumer' as envisaged under Section 2 (1)(d) of the Act. The section reads as under:-
"(d)"consumer" means any person who--
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 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 purposes;
10. 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"
In the light of the above we have to see the averments made in para 2 of the complaint which are reproduced as under:-
"2. That the father of complainant No. 1 and husband of complainant No. 2 is a retired government servant and out of retirement benefits as well as family savings, the complainant No. 1 alongwith her mother Usha Agarwal (complainant No. 2) who is a senior citizen aged about 67 yeas booked an office space measuring 500 sq. Ft. In 'MANTHAN' in their names and in furtherance of the same an amount of Rs.15.00 lakhs was being paid by the complainants to respondent, during the period of March 2012 till April 2012. It is pertinent to mention herein that as per request of an amount of Rs.12 lakhs was being paid through 6 nos. Of cheques and Rs. 3 Lakhs in cash. The copy of receipt, issued by respondent in this regard are enclosed herewith as Annexure - A (Colly.) for ready reference please, contents whereof be read and tsreated as part and parcel of pleadings contents whereof are not being reproduced here for the sake of brevity."
11. On reading of the above, it is clear that consumer is a person who buys goods or hires or avails of services of any one for consideration present, past or future. The section however carves out an exception by providing that the person who has purchased goods or hired/availed of services for commercial purpose, shall not be included in the definition of consumer."
On bare reading of the above it is clear that the space booked by the complainants is commercial one and it was supposed to be used for commercial purpose. No where in the complaint the complainants have uttered a single word that they have booked this space for earning their livelihood. Thus, it cannot be disputed that the complainants had hired or availed of services of the opposite party for commercial purpose. As the complainants had availed of services of the OP for commercial purpose, they are not 'consumer' as envisaged under Section 2 (1)(d) of the Act. Thus, the complainants can't file a consumer complaint.
The argument submitted by the Counsel for the Complainant that complainants are 'consumers' as in their evidence they have mentioned that they have purchased this office space to start some work for their livelihood. It is settled position of law that if some fact is not pleaded in the complaint it cannot be raised in the evidence.
As the complainants have not stated in the complaint that they have booked the office space for their livelihood, they cannot take this plea in their evidence. The same view is taken by the Hon'ble National Commission in FA-1138/2014, M/s TDI Infrastructure Pvt. Ltd. Vs Pradeep Singh Pahel decided on 21 September, 2015.
In view of the above discussion, the complainants are not "Consumer" under the definition of 2(i)(d) of the Act. The complaint is, therefore, not maintainable. Accordingly, the same stands dismissed.
The complainants however, shall be at liberty to avail their remedy by approaching the appropriate Forum on in accordance with law.
Copy of this judgment be sent to the complainants free of costs as per rules.
File be consigned to Record Room.
(Justice Veena Birbal) President (Salma Noor) Member