State Consumer Disputes Redressal Commission
Dr. Rajesh Kumar Sharma vs Aerens Entertainment Zone Pvt. Ltd. on 29 March, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No.126 of 2015
Date of institution:01.06.2015
Date of order reserved:22.02.2017
Date of Decision: 29.03.2017
Dr. Rajesh Kumar Sharma s/o R.D.Sharma resident of 1342, Sector 34-C,
Chandigarh.
Complainant
Versus
1. M/S Aerens Enterrainment Zone Limited, # 12 Ajit Singh House, 5th
Floor, Yusuf Sarai Commercial Complex, New Delhi-110016.
2. The Managing Director, Aerens Entertainment Zone Ltd. 6th Floor,
Mahindra Towers, 2A, Bhikaji Cama Place, New Delhi-110066.
Opposite Parties
Consumer Complaint under
Section 17 of the Consumer
Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Consumer Complaint No.126 of 2015 2
Present:-
For the complainant : Sh. Balkar Singh, Advocate
For the Ops : Ex-parte
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Complainant has filed this complaint against the Opposite parties (hereinafter referred as 'OP') under Section 17 of the consumer Protection Act, 1986 (for short 'the Act') on the averments that they contacted complainant stating that there are number of malls in the Mall namely Kidz Mall, Fashion and Lifestyle Mall, Interiorz Mall, Entertainment Mall and Leisure Mall. After going through its brochure the complainant booked one shop for self and his wife namely Dr. Jaya Sharma for their medical practice to earn his livelihood for the purpose of self employment. They booked shop no.F-30, First Floor having super area of 370.10 square feet @ Rs.4750 per sq. ft.. The complainant paid Rs.3,00,000/- as token money alongwith application dated 25.08.2006. The complainant paid total sale consideration of Rs.17,57,975/- vide cheque no.205005 dated 25.08.2016 payable at ICICI Bank Chandigarh to Ops. However, Ops revised the floor plan as per addendum dated 1.9.2008 and shop no. has been changed from F-30 to F-28 and also changed the super area from 370.10 sq. ft to 635.94 sq. ft.. The complainant paid Rs.1,00,000/- as token advance for 265.84 Sq. ft. vide receipt dated 27.6.2008. He also paid a sum of Rs.12,50,000/- Consumer Complaint No.126 of 2015 3 for additional 265.84 sq. ft. increased area on 1.9.2008. In all he has paid Rs.30,20,715/- to OPs. He also paid over and above that amount to the Ops have taken Rs.3,00,000/- more than the actual cost of the shop and have not delivered the possession till date. As per addendum, Ops had promised monthly minimum guarantee of Rs.67,279/- per month on 10th of each month till rent commencement date as per Clause 5 of the addendum dated 1.9.2008. Complainant used to receive ROI from Ops of each month Rs.67,271/- upto 1.4.2010 and after that they reduced the amount to Rs.33,639/- per month. However, complainant did not receive any positive response from the Ops relating to possession of shop. Ultimately, the complainant in the year, 2014 asked OP no.1 either to hand over the possession of the shop or to refund his money as per agreement dated 08.11.2006. After receiving full consideration amount, Ops failed to carry out the construction and to deliver the possession within a period of three years, although no specific period was referred in the agreement to sell. It amounts to deficiency in service on the part of the Ops. Accordingly, complainant filed the complaint against Ops to refund a sum of Rs.33,07,975/- alongwith interest @8% per annum from the date of receive i.e. July, 2008 till actual payment i.e. interest of Rs.18,52,466/- till July, 2015. Ops be directed to pay a sum of Rs.41,71,299/- as ROI upto July, 2015, Rs.2,00,000/- on account of price escalation in case similar shop is taken, Rs.2 lac for causing him mental agony and harassment, Rs.2 lac on account of unfair trade practice and Rs.21,000/- on account of cost of litigation.
Consumer Complaint No.126 of 2015 4
2. Notice was issued to the OP no.2, summons were not served on the given address, as report was received that OP no.2 had left the given address. Complainant filed an affidavit that he is not in the knowledge of any other address. Ultimately, notice was sent through publication in Dairy Times of India. But none has present on behalf of OP no.2. Therefore, OP no.2 was proceeded against ex- parte vide order dated 18.07.2016.
3. Sh. Updip Singh, Advocate has appeared on behalf of OP no.1, but none appeared on behalf of OP no.1 for the next two consecutive dates. Accordingly, vide order dated 28.03.2016, OP no.1 was also proceeded against ex-parte.
4. In the ex-parte evidence, Complainant tendered in evidence his affidavit as E.xC/A alongwith documents site plan Ex.C- 1, receipt Ex.C-2, copy of cheque Ex.C-3, copy of sell agreement Ex.C-4, schedule of payment Ex.C-5, receipt Ex.C-6, Addendum Ex.C-7 and close the evidence.
5. We have heard the learned counsel for the appellant Sh. Balkar Singh, Advocate and have carefully gone through the averments made in the complaint. As per the averments made in the complaint the complainant alongwith his wife have booked one shop with OPs. In para no.2 of the complaint, he pleaded that it was booked with a view to earn his livelihood for the purpose of self employment. Since, the property booked is for commercial purpose, therefore, firstly, it is to be determined whether the complainant Consumer Complaint No.126 of 2015 5 comes within the definition of the consumer. Definition of consumer has been defined under Section 2(i)(d) of the Act:-
2(i)(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 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;
In case of services with regard to commercial properties are availed it should be in connection with to earn his livelihood by means of self employment.
6. The complaint further shows that OP had launched the Festival City Mall at Ludhiana (Punjab). It was having number of malls in it i.e. Kidz Mall, Fashion and Lifestyle Mall, Interiorz Mall, Entertainment Mall and Leisure Mall. Its detail have been given in the brochure, which reads as under:-
x x x x x x • Kidz Mall - For your children all their favourite brands of toys, books, clothes and sportswear alongwith a giant indoor Consumer Complaint No.126 of 2015 6 carousel, slot machines, video arcade and other activities to keep them entertained.
• Fashion and Lifestyle Mall - Step into a new brand world that has all the leading lifestyle and fashion brands in clothes, shoes, fashion accessories, sports gear, jewellery, sunglasses, watches, perfumes, personal care, bridal wear and music. • Interiorz Mall - For your entire office and home requirements including home furnishings, brown and white goods, lighting, sanitaryware, furniture and an in house resource centre for architectural advice, vaastu counselling and interior design consulting.
• Entertainment Mall - for the whole family includes a bowling alley, a video arcade, a gyro drop and other gizmos. Also included is a 7 screen multiplex. Discotheque and a Bollywood theme multi cuisine food court.
• Leisure Mall - A 100 + room star hotel, a sports club that includes a world class SPA, temperature controlled indoor swimming pool and Gym. A members only club and world class conference and banquet facilities.
The agreement to sell was executed between the parties on 08.11.2006, the same has been proved on record as Ex.C-4 and addendum was issued on 01.09.2008, the same has been placed on record as Ex.C-7. According to Clause 5 of this agreement as per agreed terms, seller were paid to the buyer aggregate Rs.67,279/- as monthly Minimum Guarantee in advance on or before 10th of every calendar month till Rent Commencement Date. In the agreement Consumer Complaint No.126 of 2015 7 Ex.C-4 right to buyers has been defined in Clause 11(a), which reads as under:-
X x x x x x
11. RIGHT OF THE BUYER
a. All the land areas, facilities and amenities outside the
Unit's carpet area are excluded from the scope of this Agreement and the Buyer shall not be entitled to any ownership rights, rights of usage, title or interest etc. in any form or manner whatsoever in such land, areas, facilities and amenities. Such lands, areas, facilities and amenities have not been included in the computation of Super Area for calculating the Sale Price and, therefore, the Buyer has not paid any money for use of ownership in respect of such lands, areas, facilities and amenities shall vest solely with the Developer and their usage and manner/method of use shall be at the sole discretion of the Developer.
X x x x x x
7. Usage of the units has been given in Clause 15, which reads as under:-
x x x x x x
15. Usage of the Unit
The Buyer agrees and confirms that the Unit shall be used only for the purpose of Retail shop as per approved zoning plan and for no other purpose whatsoever. The Buyer further assures the Developers that in case of resale of the Unit to a new purchaser, the new purchaser will not be permitted to do any other business in the Unit except that of Retail shop as per approved zoning plan and for no other purpose whatsoever. In case of any violation of the aforesaid condition, then in that event the Developer has full right to take necessary action as deemed fit and proper at the circumstances of each case and further reserve its right to disconnect the electricity of the Unit and cancel the allotment of the Unit and recover suitable penalties from the Buyer. Consumer Complaint No.126 of 2015 8
X x x x x x Therefore from the joint reading of these Clauses the purpose of the shop is to run a retail shop as approved under zoning plan. As per brochure none of the Mall provides for running any medical clinic, therefore, averments in the complaint that the shop was booked to earn his livelihood for self employment is just a bald statement of the complainant in the complaint. Otherwise, features of the mall and agreement between the parties does not permit medical clinic in the Mall and it is to be used as retail shop. Therefore, the statement made by the complainant in his complaint that he had booked this shop to earn his livelihood for self employment is contrary to the provisions of the agreement. It seems that the shop was booked for commercial purpose and when the element of earning livelihood for self employment is missing then the same is not covered under the definition of consumer. The reference has been made to "APS International Pvt. Ltd. Vs. EMAAR MGF Land Ltd." I (2016) CPJ 113 in that case shop in commercial area was booked, it was held that the complainant do not qualify to be consumer, complaint is not maintainable. The reference has been made to another judgment "Transasia bio-medicals Ltd. Vs. Deepak Kumar Jindal", 1 (2016) CPJ 531 (NC), in that case the complainant was running clinical laboratory. It was observed that it cannot be presumed that complainant was running his laboratory for earning his livelihood by means of self employment. It was held that the complainant is not a consumer. In the present complaint also when the complainant has not been able to prove that as per the documents agreed between Consumer Complaint No.126 of 2015 9 the parties he will not be able to run his clinic there then averments made by the complainant that he had booked the shop to earn his livelihood by running a clinic is not correct statement and has been referred to cover the matter under CP Act. It was booked for commercial purpose, he does not come under the definition of consumer.
8. Sequel to the above, we dismiss the complaint being not maintainable as the complainant does not fall within the definition of the consumer without prejudice his right with a liberty to approach to the appropriate Forum.
9. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
10. Order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
March 29, 2017. (Surinder Pal Kaur)
rs Member