National Consumer Disputes Redressal
Major Vishwani Puri & Ors. vs Dlf Universal Ltd. on 15 December, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI CONSUMER COMPLAINT NO.34 OF 2010 1. Major Vishwani Puri Complete Surveying Technologies (P) Ltd. D-1007, Basement, New Friends Colony, New Delhi 25 2. Rishabh Singhvi Rishabh Holdings P Ltd. & Sobhagya Capital Options Ltd. B-206, Okhla Indl. Area, Ph.-1, New Delhi 20 3. Manjit Singh Iqbal Associates 109, Lusa Complex, 18/20 4. S. K. Bansal (HUF) S 252, Greater Kailash 1, New Delhi 48 5. M.R. Monga Chander Bhalla, 1309, Chiranjiv Tower, 43, Nehru Place, New Delhi 19 6. Manoj Monga House No. 1996, Sector 9, Faridabad 7. B. K. Roy Design Workshop (I) P Ltd. A-289, Okhla Phase 1, New Delhi 20 8. J. R. Gangwani W 81, Anupam Garden, New Delhi 68 9. Vinod Singhania 236, Okhla Phase III, New Delhi 20 10. Pawan Kumar, Kiran Goel, A 122, New Friends Colony, New Delhi 65 11. Rishi Baid, Poly Medicure Limited 12, Sant Nagar, East of Kailash, New Delhi 65 12. Prithwijit Ghosh Expro Events & Exhibits 292, Faiz Road, Karol Bagh, New Delhi 13. Vinay Bindal Bindal Logistics Pvt. Ltd. G 57, East of Kailash, New Delhi 65 14. Ajai Kumar ABN India Equity C-292, 2nd Floor, Defence Colony, Newe Delhi 24 15. Puneet Mehta TA-101, Tughlakabad Extn. New Delhi 16. Mahabir Singh Bajaj B 5/13, Safdarjung Enclave, New Delhi 29 17. Vinod Goyal Bharat Overseas Gohana Road, Panipat-132 103 18. R. K. Agarwal Elite International A 127, Sector 63, NOIDA 19. Rajesh Rungta Klassik Lamitex P. Ltd. 1104A, Chiranjiv Tower, 43 Nehru Place, New Delhi 19 20. Rakesh Kumar Jain Jyoti Consultants A 2/133, Safdarjung Enclave, New Delhi 29 21. Diljit Singh Bawa 160, Sector 21B, Faridabad 22. Vijay Prakash Bestochem Formulation (I) Ltd. A 4/14, Indl. Area site IV, Sahibabad 23. Vinit Kapoor, Kaps Advertising 30, Community Centre, East of Kailash, New Delhi 65 24. Amit Khanna Unique Innovation P Ltd. 222/223, Mehrauli-Gurgaon Road New Delhi 25. Puneet Gupta 29, Friends Colony, New Delhi 65 26. K. L. Verma Sunflame Enterprises P Ltd. D 836, New Friends Colony, New Delhi 65 27. Karan Rekhi & Saloni Rekhi 231, Jor Bagh, New Delhi 28. Naresh Ramchand Chandra, J 82, Saket, New Delhi 17 29. Pooja Khanna Kedia Consultants P. Ltd. 59/17, Bahubali Apts. New Rohtak Road, Karol Bagh, New Delhi 5. 30. Rakhi Som/Amit Som J 1844, C. R. Park, New Delhi 19 31. Gaurav Kitha Kithania Steel P Ltd. NIA Z 170, Loha Mandi, New Delhi 28. 32. Kamlesh Gupta Ashish Gupta M 40, Greater Kailash I Market New Delhi 48 33. A. S. Sandhu RSMS Architects P Ltd. 69, Nora Niwas, Bhawani Kunj, D II, Vasant Kunj, New Delhi 70 34. Vikram Bahri B. M. Kapoor, C-779, New Friends Colony, New Delhi 70 35. Dhanwant Singh Jasbir Kaur Bawa, 895/21, Amar Market, Chandni Chowk, Delhi 36. Vikas Bardia 12/3, Punjabi Bagh East, New Delhi 37. S. L. Khanna/Deepti Khanna S-106, Greakter Kailash 1, New Delhi 48 38. Parmjeet Singh A 256, New Friends Colony, New Delhi 65 39. Gautam Bahri 5/5, Roop Nagar, Delhi 7. 40. Shiv Khera/Suneel Bhatia C 6/4, Vasant Vihar, New Delhi 67 41. P. K. Patra S. N. Envirotech P Ltd. F 90/32, Okhla Indl. Area Ph.-1, New Delhi 20. 42. Samir Arora 228, Okhla Indl. Estate New Delhi 20 43. Piyush Srivastava 1399/15, Faridabad 44. Amit Vig The Travel Shoppe B 5/189, Safdarjung Enclave, New Delhi 29. 45. Sunil Mehra 401, Narmada apts. Alaknanda New Delhi 48 46. Shilpa Mittal Singh C 93, G. F. Greater Kailash 1, New Delhi 48 47. Pradip Kumar B 2/62, Safdarjung Enclave, New Delhi 29 48. Rajat R. Khatri Idea Projects & Sales P Ltd. B 1/28, Vasant Vihar, New Delhi 57. 49. Jaideep Grover G 26, Masjid Moth, Greater Kailash II, New Delhi 48 50 Aditya Malik B 2/56, Safdarjung Enclave, New Delhi 29 51. Amit Sharma/Monica Sharma 121, Vasant Enclave, New Delhi 57. 52. Sharvan Kumar 40/75, C. R. Park, New Delhi 19 53. Rajiv Kumar Saxena I Block, 1744, C. R. Park, New Delhi 19 54. L. R. Agarwal Krishi Rasayan Exports P Ltd. 1115 Modi Tower, 98 Nehru Place, New Delhi 19 55. Umesh Giri Arun Industries 7/17, Roop Nagar, Delhi 7 56. Anurag Jain C 28, Sector 61, NOIDA 57. Rohit & Mohit Aggarwal Majohla Delhi road Moradabad 58. Rakesh Dayal/Rajesh Nangia F 103, Ambience Island, NH -8, Gurgaon 59. Om Prakash Vaish/Sunil Kapur D 330, Firozshah Road, New Delhi 60. Vivek Chand, DD 26, Kalkajit Extn. New Delhi 61. Rajesh Dhingra 372, Mandakini Enclave Alaknanda, New Delhi 19. 62. Sandeep Madan C 14, Pamposh Enclave, New Delhi 48. 63. Nitin Dhawan K 9, Jagpura Extn. New Delhi 64. Sandeep Sibal/Gulshan Gulati P 16, Malviya Nagar, New Delhi 17 65 Raman Sibal P 16, Malviya Nagar, New Delhi 17. 66. Kanwal Nain Sahney / Kuldeep Chand Sahney S 332, Greater Kailash II, New Delhi 48. 67. M. P. Garg, 148, New Gadee Nagar, New Delhi 68. Amandeep Singh 13, Mohan Singh Place, C. P. New Delhi 1 69. Ashok Daga 7/18, Kalkaji Extn. New Delhi 19 70. Alok Shankar 4237, B 5/6, Vasant Kunj, New Delhi 70 71. Neelam Pradeep Anand, 47, Anand Kutir, 16th Road, Khar (W) Mumbai 72. Bhuvnesh Gaur Kashyap & Gaur Controls P Ltd. 2952-53/2, Sangitrashan, Paharganj, New Delhi 55. 73. Mohini Cold 57, 1st Floor, Mall Road, Kingsway Camp., Delhi 9 74. Bhuvnesh Gaur Fairlie Services P Ltd. 15, Okhla Industrial Estate Phase III, New Delhi 20. 75. Charanjit Singh 150-C, Central Avenue, Sainik Farms New Delhi 62. 76. Ved Chanana RSI Infrastructure 77/7, East Punjabi Bagh, 3rd Floor, Delhi 77. Ram Babu Goel Haldiram Manufacturing Co. B-1/H-3, M.C.I.E., Mathura Road, New Delhi-44 78. K.S. Uberoi & Areema Uberoi W-100, Greater Kailash II, New Delhi-48 79. KCT Trading Co. Thapar House, 25, Brabourne, Road, Kolkata 80. Excelsior Merchants P-50, Princep Street, 4th Floor, Kolkata-27 81. Ashish Shanker Aromatrix Flora (P) Ltd. 4237/B-546, Vasant Kunj, New Delhi-70 82. Prakash K. Gupta 18, Hanuman Road, New Delhi-1 83. Meetu Vij/Subhash Vij 14A/73, Punjabi Bagh, New Delhi-26 84. Satyam/Rajan Lohia Sikaria Ground, Christian Nasti, G.S. Road, Guwahati, Assam 85. Aseem Agarwal 7, Tanjong, RHU Road # 16-04, 887 86. Harish Kanwar M-259, Greater Kailash II, New Delhi-48 87. Pawan Saraog Jagdhartri Marketing (P) Ltd. I F-7, East of Kailash, New Delhi-65 88. R. Lapremruata RTS Engineering Enterprises B 22/A, Khatla, Darkawan, Aizawl 796 001 89. Mrs. Sethi RPI Commercials 7, Rajpur road, Ashoka APTS, 1-B, Civil Lines, New Delhi-54 90. Jatinder Singh Chatta Spring Hill House, Walsall Road, 91. Mohinder Singh Sanghera 81, Linden Lea, Compton, Wolverhampton 92. Tibra Gupta B-82, Gulmohar Park, New Delhi Complainants Versus DLF Universal Ltd. Having its registered office at: Shopping Mall 3rd Floor, Arjun Marg Phase-II, DLF City, Gurgaon, Haryana-122 002 Having its head office at: DLF Centre, Sansad Marg, New Delhi-110 003 (Earlier known as DLF Commercial Complexes) Opp. Party BEFORE HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Complainants : Mr. Neeraj Chaudhary, Advocate Alongwtih Mr. Ajai Kumar- Complainant For the Opp. Party : Mr. Ravindra Narain, Advocate Alongwith Ms. Kanika Gomber, Advocate Mr. Siddharth Banthia, Advocate Ms. Nimita Kaul, Advocate PRONOUNCED ON 15th DECEMBER, 2014 ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This complaint was originally filed against M/s DLF Universal Ltd. on behalf of an unregistered association, namely, DLF Towers Okhla Owners Association. The institution of complaint by an unregistered Association was objected to. The individual allottees thus moved an application for being substituted as complainants in place of unregistered Association. The application was allowed by order dated 17.1.2012 and individual allottees were substituted as complainants in place of the unregistered Association.
2. Shorn off unnecessary details, facts relevant for the disposal of the objection to maintainability of the consumer complaint are that the instant complaint has been filed on the allegations of deficiency in service on the part of the opposite party in respect of the alleged allotment of commercial spaces like shop and office etc. to the respective complainants in the project of the opposite party to construct commercial tower known as DLF Towers, Okhla, New Delhi. It is the case of the respective complainants that persuaded by the misrepresentation of the opposite party they had booked commercial spaces of varying areas between 500 sq. ft. to 6000 sq. ft. at the rate of varying from Rs.15000 to 17000 per sq. ft. The respective bookings were done by making initial payments on different dates of March, 2008. According to the complainants in all they have cumulatively paid more than 100 Crores to the opposite party but the opposite party has failed to fulfill its part of the contract by failing to provide shops and office spaces to the complainants by completing the project after obtaining requisite sanctions from various Government authorities. The complainants have, thus, prayed for the refund of the amount paid by them with 18% interest thereon from the date of filing of application till the date of refund of money besides compensation of Rs.2 Lakhs to each of the complainants and Rs.15,000/- as cost of litigation to each of the complainants.
3. The opposite party in its written statement apart from the pleas on merits has taken a preliminary objection that the instant complaint is not maintainable because the complainants are not the consumers as envisaged in the definition of Consumer under Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act).
4. For deciding the above objection to maintainability of the complaint it is necessary to have a look on the definition of the word Consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 which reads 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 purposes;
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
5. On reading of the above definition it is evident that a person is a consumer who buys any goods for consideration or hires any services for consideration and also includes a user of such goods or a beneficiary of such services. To this vide definition the section itself provides an exclusion and it excludes a person from the definition of consumer who obtains such goods for resale or any commercial purpose or who avails services of any description free of charge or under a contract of personal service for any commercial purpose. The legislature has also provided for a further exception by providing the explanation envisaging that commercial purpose does not include use by a person of goods bought and used by him and the services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.
6. In the light of above definition, learned counsel for the opposite party has contended that admittedly the complainants had booked commercial spaces like office/shops etc. in a project undertaken by the opposite party to construct commercial towers known as DLF Towers, Okhla, New Delhi. Thus, the complainants having booked spaces for commercial purpose are excluded from the definition of consumer and as such they cannot maintain the consumer complaint under the Act. Learned counsel for the complainants on the contrary has contended that though the complainants have booked commercial spaces in the tower they are not excluded from the definition of consumer in view of the explanation to Section 2 (1) (d) which defines commercial purpose and excludes the person who bought the goods or hired the services exclusively for the purpose of earning his livelihood by means of self-employment.
7. We have considered the rival contentions and perused the record. On going through the complaint we do not find merit in the contention of learned counsel for the complainants. Perusal of the complaint would show that the instant complaint has been filed on behalf of 92 allottees in the tower which was proposed to be constructed by the opposite party. The complainants are trying to seek shelter of bald plea in the complaint that they have booked the commercial spaces in the tower for earning their livelihood by means of self-employment. Merely taking of a plea will not entitled the complainants to get the benefit of the explanation which carves out an exception for the person who has hired the services exclusively for earning his livelihood by means of self-employment irrespective of the fact that the service has been hired or availed for commercial purpose. It does not appeal to reason that all the 92 complainants had booked the flats in the subject tower for earning their livelihood by way of self-employment and it appears that this plea has been taken only to bring the complainants within the purview of the Consumer Protection Act.
8. Further, on perusal of the amended memo of parties it transpires that 19 out of 92 complainants named in the amended memo of parties are limited companies. It is clear that the 19 complainants being unnatural persons, the plea that they have invested the money in the project for earning livelihood by way of self-employment is not available to them. Similar is the case of several complainants who are doing business concerns run by the private individuals. In view of the above, the general plea taken by the complainants in the amended complaint that they have booked the commercial spaces with a view to earn livelihood by way of self-employment cannot be accepted and it is clear that this plea has been taken with a specific object to bring this case within the purview of the Consumer Protection Act. Thus, in our view, the complainants have booked the flats in a commercial tower, therefore, they are not covered under the definition of Consumer as envisaged under Section 2 (1) (d) of the Act. As such the complaint filed by them is not maintainable.
9. Looking above issue from a different angle, on reading of Section 2(1)(d) of the Act it is clear that a person who avails of services for a commercial purpose is not a consumer for the purpose of the Act. An exception, however, has been carved out to the aforesaid general provisions by providing an explanation that for the purpose of Section 2 (1) (d) commercial purpose does not include the service availed by a person exclusively for the purpose of earning his livelihood by means of self-employment. As the complainants are trying to take benefit of the above explanation which is in the nature of exception to the main provision, therefore, the onus of proving that the services were availed by respective complainants exclusively for the purpose of earning livelihood by means of self-employment is on each and every complainant. Thus, in order to succeed on the issue of maintainability each and every complainant will have to lead separate evidence to prove that he or she booked the commercial space for the purpose exclusively for earning livelihood by means of self-employment. As each and every complainant has to separately prove that he is covered by the explanation to Section 2 (1) (d), they cannot be permitted to maintain a joint complaint. Case of each complainant will have to be assessed on its own merits. Thus, this is a case of misjoinder of parties and as such a common complaint by 92 different complainants is not maintainable.
10. In view of the discussion above, we are of the opinion that the complaint filed jointly by the complainants is not maintainable in the present form. It is, therefore, rejected. The complainants, however, shall be at liberty to avail of the remedy legally available to them before appropriate forum.
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(AJIT BHARIHOKE, J.) PRESIDING MEMBER ....
(REKHA GUPTA) MEMBER