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State Consumer Disputes Redressal Commission

Rajiv Chandwani vs Imperia Structures Ltd. on 5 August, 2019

                     IN THE STATE COMMISSION: DELHI
     (Constituted under Section 9 of the Consumer Protection Act, 1986)
                                  Date of hearing and date of decision : 05.08.2019


                       COMPLAINT CASE NO. C-637/2019
In the matter of:
1.    SH. RAJIV CHANDWANI                                    :    Counsel for the complainant
      s/o Sh. P. A. Chandwani                                     Sh.     Sanjay      Kumar,
                                                                  Advocate
      R/o. F-233, Vikaspuri, New Delhi

                                            Versus

1.    M/S IMPERIA STRUCTURES LTD.                                : None
      Through its Director
      Office at A-25, 1st Floor,
      Mohan Co-operative Industrial Estate,
      Mathura Road, New Delhi-110044

CORAM           :        HON'BLE SHRI ANIL SRIVASTAVA, MEMBER

1.      Whether reporters of local newspaper be allowed to see the judgment?            Yes
2.      To be referred to the reporter or not?                                          Yes




ANIL SRIVASTAVA- MEMBER

                                        JUDGEMENT

1. The matter was listed for admission hearing on 24.07.2019 when on the request for the Counsel for the complainant the matter was adjourned for 05.08.2019. On 05.08.2019 Sh. Sanjay Kumar Counsel for t he complainant appears and placed before this Commission the judgments in support of his claim. This complaint has been filed by Sh. Rajiv Chandwani, in short complainant, before this Commission under Section 17 of the Consumer Protection Act, 1986 (the Act) against M/s. Imperia Structures Ltd., hereinafter referred to as the OP, alleging deficiency on the part of the OP they having not paid the the assured returns as agreed, leading to deficiency in service.

2. Facts of the case necessary for the adjudication of the complaint are these.

3. The complainant r/o of New Delhi had agreed to purchase one space of an area of 500 sq. feet in the project of the OP Unit no. 137, Floor 1, Tower Onyx Super Area 574 sq. ft/ 53.35 sq. m. At plot no. 44, 45, Knowledge Park-V, Greater Nodia, UP for his own use and livelihood for his family to manage his kitchen. As per the agreement assured returns was to be paid as per the table indicated below:

S. No. Instalment Date Assured Return Payable by Amount respondent to the complainant

1. Rs.13,33,750/- Upto date 31.10.2015 Rs.13,750/- per month

2. Rs.66,875/- Not later than 31.10.2014 Rs.20,625/- per month

3. Rs.66,875/- Note later than 31.10.20158 Rs.27,500/- per month till 21.11.2016

4. Entire payment 22.11.2016 to 21.11.2019 Rs.20,000/- per month

4. The point for adjudication is whether the case of the complainant is covered under Section 2 (1) (d) of the Act read with the exception clause. Section 2 (1) (d) as posits as under:

―(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;

Explanation - For the purpose 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 purpose of earning his livelihood by means of self employment.‖

5. On a plain reading of the above provision of the Act it is clear that if services are availed for commercial purpose, the person availing such service would not be a consumer since outside the ambit and scope of the definition of consumer. The complainants in the given case have done the transaction assured of returns. Returns per se tantamount to accruing of profit, leading to an inevitable conclusion that the transaction done is coupled with the angle of investment and if that be the case the complainants would not be consumer which means not entitled to raise a consumer dispute. The ld. Counsel for the complainant while arguing could not satisfy us that the transaction done was not for commercial purpose which means the case cannot be covered under exception clause contained in the provisions of Section 2(1)(d).

6. I have given careful consideration to the subject. The issue in the subject matter involves, among others, assured returns. The transaction involving assured returns are indisputably commercial. I am fortified in my view by the judgement of the Hon'ble NCDRC in the matter of Smt. Priti Arora Versus M/s. ARN Infrastructure India Private Limited (CC No.246/13 decided on 06.04.2017). The Hon'ble NCDRC in yet another matter, in the matter of Rishi Malhotra Versus Blue Coast Infrastructure Development Pvt. Ltd. & Ors as reported in I[2017] CPJ 541 (NC) is pleased to hold that if the transaction done is coupled with assured returns, it would be treated as for commercial purpose.

7. The Ld. Counsel for the complainant in support of his claim that he would be a consumer has drawn my attention to the judgement by the Hon'ble Supreme Court in the matter of Paramount Digital Color Lab & Ors. Etc. Vs. Agfa India Pvt. Ltd. & Ors. Etc. Reported as 2018 (3) CPJ 12.

However, the reliance of the judgement in this given case is misplaced since issues involved are different. The complainant has also relied on the judgment of the Hon'ble High Court Delhi in the matter of Safmarine Container Lines N. V. Vs. Amita Enterprises & Anr. Reported as 2013 (197) DLT 181. Facts of the case being at variance from the facts of the case in hand, reliance would be of no consequence.

8. In view of the discussion done the complainant is dismissed leaving the parties to bear the cost.

9. Ordered accordingly.

10. A copy of the order be forwarded to the parties to the case free of cost as statutorily required.

11. File be consigned to record.

(ANIL SRIVASTAVA) MEMBER (am) C-637/2019 Rajiv Chandwani vs. Imperia Structures Ltd. Page 4 of 4