State Consumer Disputes Redressal Commission
Jhuma Entertainment Pvt. Ltd. vs Vardhman Interdevelopers Pvt. Ltd. on 22 October, 2024
C. NO. 216/2022 D.O.D.: 22.10.2024
JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 21.12.2022
Date of hearing: 17.09.2024
Date of Decision: 22.10.2024
COMPLAINT CASE NO.- 216/2022
IN THE MATTER OF
JHUMA ENTERTAINMENT PVT. LTD.,
HAVING REGISTERED OFFICE AT:
NO. 32 D, 375, TOWER 2, SOUTH CITY,
PRINCE ANWAR SHAH ROAD, KOLKATA,
WEST BENGAL - 700068.
(Through: Mr. Swati Setia, Advocate)
...Complainant
VERSUS
M/S VARDHMAN INFRADEVELOPERS PVT. LTD.,
HAVING REGISTERED OFFICE AT:
401-414, 4TH FLOOR,
SHAHPURI TIRATH SINGH TOMER TOWER,
PLOT NO. C-58, DDA COMMUNITY CENTRE,
JANAK PURI, NEW DELHI - 110058
(Through: Dr. Sumana Raychaudhuri
& Ms. Neha Srivastava)
...Opposite Party
DISMISSED PAGE 1 OF 14
C. NO. 216/2022 D.O.D.: 22.10.2024
JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE PINKI, MEMBER (JUDICIAL)
Present: Ms. Swati Setia, counsel for complainant.
Dr. Sumana Roy Chaudhary and Ms. Rhea, counsel for OP.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the Complainant before this commission alleging deficiency of service and unfair trade practice by the Opposite Party and has prayed the following reliefs:
a) Direct the Opposite party to forthwith hand over physical possession of: (i) Unit bearing No. 9A-32, admeasuring super area 2167 square feet and build up area of 1300 square feet ii) Unit bearing No. 9A-21, admeasuring super area 701 with square feet and build up area of 421 square feet sq. ft., 9A Floor; and (iii) Unit bearing No. 9A-28, admeasuring super area 701 with square feet and build up area of 421 square feet sq. ft., 9A Floor, in the project "Vardhman Alfa Square", situated at Plot No. 3A, Sector Alpha 1, Greater Noida, Uttar Pradesh as per the terms and conditions to the Complainant;
OR in alternative;
b) Direct the Opposite Party to forthwith Refund the entire amount of Rs.1,04,72,222/- to the Complainant as pocketed by Opposite Party along with interest @ 24 % p.a. from the date of deposit till the date of final payment; and
c) Direct the opposite party to pay a sum of Rs. 1 crore as compensation for the loss of opportunity and for depriving the complainant of the benefit of his investment because of the deficient service of the opposite party; and
d) Direct the opposite party to pay damages of Rs. 45 lakhs for mental agony, harassment, unfair trade practices suffered at the hands of the opposite party over the last 10 years due to the enormous delay in handing over the DISMISSED PAGE 2 OF 14 C. NO. 216/2022 D.O.D.: 22.10.2024 JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
possession despite taking substantial money, negligence and deficiency in service; and
e) direct the opposite party to pay a sum of Rs. 2,50,000/- as litigation cost to the complainant; and/or
f) Pass any other orders or directions as deemed appropriate in the facts and circumstances of the case.
2. Brief facts necessary for the adjudication of the present complaint are that the Complainant vide application dated 27.03.2012, initially booked two spaces in the project known as "Vardhman Alfa" of the Opposite Party, situated at Plot No. 3A, Sector Alpha 1, Greater Noida, Uttar Pradesh. Accordingly, the Opposite Party allotted two units, bearing numbers 823 and 824, for a total consideration of Rs.47,94,904/- to the Complainant in the said project. Subsequently, the Complainant made a total payment of Rs. 89,84,342/- towards both units to the Opposite Party in the year 2012. Thereafter, two identical agreements were executed between the parties on 20.03.2013. As per both agreements, the Opposite Party was to hand over possession of the conjoint units on or before 31.12.2015. Moreover, the Opposite Party also assured a monthly return of Rs. 50,090/- per unit to the Complainant until the date of possession of the said units. However, the Opposite Party paid the assured return for both units only until May 2015 and thereafter failed to pay the assured return. The Opposite Party also failed to offer possession of the units by 31.12.2015. The Complainant raised the issue and visited the office of the Opposite Party, where the Complainant met one of the directors, Mr. Harinder Bashista, who orally expressed the company's inability to offer possession within the prescribed time and admitted to the company's failure to make payment towards the assured returns. Additionally, Mr. Bashista offered to allocate a larger space in the said project against the amount already paid by the Complainant for the two units. He also DISMISSED PAGE 3 OF 14 C. NO. 216/2022 D.O.D.: 22.10.2024 JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
assured the Complainant that the outstanding and unpaid assured returns for the conjoint units, amounting to Rs. 14,87,880/- for the period from June 2015 to August 2016, would be treated as part of the received consideration in the documentation while allotting the larger unit. The Complainant, having no other option, accepted the proposal for the change of space/units to adjust the unpaid assured return of Rs.14,87,880/-, which had been withheld by the Opposite Party. Thus, the Complainant was compelled to agree to the arbitrary proposal and wait for the possession of the new unit. The Opposite Party promised to offer possession of the new unit by June 2018.
3. Subsequently, the Complainant asked for a copy of the new agreement and the documents signed for the fresh allotment. After several follow- ups, the Opposite Party provided copies of the new papers for the fresh allotment, but the Complainant was shocked to see that the documents were backdated to November 2016. Moreover, instead of allotting one larger unit, the Opposite Party allotted three smaller and separate units/offices to the Complainant and showed the received amount as Rs. 89,97,006/- instead of Rs. 1,04,72,222/-. The Opposite Party also issued three agreements dated 24.11.2016, allotting: (i) Unit No. 9A- 32, with a super area of 2167 sq. ft. and built-up area of 1300 sq. ft.;
(ii) Unit No. 9A-21, with a super area of 701 sq. ft. and built-up area of 421 sq. ft.; and (iii) Unit No. 9A-28, with a super area of 701 sq. ft. and built-up area of 421 sq. ft. The Complainant immediately visited the office of the Opposite Party to raise concerns but was again misled. The Opposite Party explained that the actual cost of the three units combined was higher in the market, but due to technical issues, government regulations, and restrictions from authorities, three smaller units had been allotted on the same floor instead of a larger unit. The DISMISSED PAGE 4 OF 14 C. NO. 216/2022 D.O.D.: 22.10.2024 JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
Opposite Party vaguely assured the Complainant that this would not adversely affect the Complainant's interests or rights, and a larger space with a higher price would be provided at the time of possession, in exchange for the total consideration of Rs. 1,04,72,222/-.
4. Furthermore, as per the agreements dated 24.11.2016 concerning the three units, the Opposite Party was supposed to hand over possession by or before 2018. However, the Opposite Party has failed to deliver possession to date. The Complainant made several communications regarding the possession and visited the Opposite Party's office in April 2019, May 2019, December 2019, February 2020, and March 2020, but the Opposite Party failed to provide any satisfactory response. Thus, left with no other option, the Complainant sent legal notice dated 05.07.2022 to the Opposite Party asking for possession of the said units or in alternative refund of the amount alongwith interest but was of no avail.
5. During the course of proceedings, a notice was issued to the Opposite Party on 08.01.2023. The notice was served upon the Opposite Party through speed post on 06.03.2023 and 07.03.2023 as well as through email on 10.04.2023. However, the Opposite Party failed to file its written statement with stipulated period of 30 days under Consumer Protection Act 2019. Consequently, this commission vide order dated 22.08.2023 closed the right of the Opposite Party to file its written statement. Since the right of the Opposite Party to file its written statement was closed; therefore, the averments made by the Complainant against Opposite Party in the present case remains unrebutted.
6. Written Argument of the both parties also on the record.
DISMISSED PAGE 5 OF 14 C. NO. 216/2022 D.O.D.: 22.10.2024
JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
7. The Opposite Party has also filed IA bearing no. 1924 of 2023, wherein the Opposite Party challenged the maintainability of the present complaint. The counsel for the Opposite Party submitted that the Complainant does not fall under the definition of the Consumer under Consumer Protection Act' 2019. Pressing the aforesaid objection, the Opposite Party prayed for the dismissal of the present complaint.
8. Reply to the IA/1924 of 2023 of the Complainant is also on record.
9. We have perused the material available on record and heard the counsel for the parties.
10. Before delving into the merits of the case, we deem it appropriate to ascertain, whether Complainant fall under the category of 'consumer' defined under the Consumer Protection Act, 2019. To comment on this issue, we deem it appropriate to refer to Section 2(7) of the Consumer Protection Act, 2019, which provides as under:
"(7) "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 service 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 service 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 service for any commercial purpose Explanation. --For the purposes of this clause, --
DISMISSED PAGE 6 OF 14 C. NO. 216/2022 D.O.D.: 22.10.2024
JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self- employment;
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-
level marketing;"
11. The above statutory provision makes it clear that a person who buys goods or avail services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment is a consumer. It is further clear that the commercial purpose does not include if such goods bought or services availed by him exclusively for the purpose of earning his livelihood.
12. At this stage, it is imperative to refer to the dicta of the Hon'ble National Commission in CC-50/2011 titled Rajesh Gulati & Anr. Vs. DLF Commercial complexes ltd. decided on 18.03.2016, wherein, the Hon'ble National Commission has held as under:
"It is not disputed that the Complainants had booked the office space in the commercial project undertaken by the OP. Therefore, if we go by the definition of "consumer" as envisaged under section 2(1)(d)(ii), it is clear that the Complainants do not fall within the definition of "consumer"
as they have availed of the services for the commercial purpose, unless their case is covered under the Section 2(1)(d) of the C.P. Act, 1986.
Section 2(1)(d) of the Act defines the term "Consumer" as under:
2 (1) (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 DISMISSED PAGE 7 OF 14 C. NO. 216/2022 D.O.D.: 22.10.2024 JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
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 of 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 iii. includes any beneficiary or 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} On reading of the above, it is clear that in order to avail the benefit of the explanations, the onus lies on the Complainant to show that they have availed the services of the Opposite Party exclusively for the purpose of earning their livelihood by means of self-employment."
13. Further, it is also imperative to refer Consumer complaint no. 274 of 2015 titled as Inderjit Singh Mangat & Anr. Vs. Godrej Properties ltd. Decided 06.04.2016, wherein, the Hon'ble National Commission has held as under:
4. The Complainants admittedly are Non Resident Indians. It has been alleged in para 8 of the complaint that the Complainants had entered into a Letter of Intent dated 15.06.2012 with an Information Technology Company, DISMISSED PAGE 8 OF 14 C. NO. 216/2022 D.O.D.: 22.10.2024 JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
undertaking to rent out the aforesaid premises at the rate of Rs. 100 per sq. ft. It is thus evident that the Complainants who otherwise are Non Resident Indians did not intend to work themselves in the aforesaid commercial unit booked by them and wanted to let it out for the purpose of earning income by way of rent. In order to bring their case within the purview of the explanation below Section 2 (1) (d) of the Consumer Protection Act, the Complainants need to prove that the services were availed by them exclusively for earning their livelihood by means of self-employment meaning thereby that they should personally use the commercial premises by them and the purpose should be to earn their livelihood by such use. Since the Complainants had already entered into an agreement with the Information Technology Company to rent out the premises which they had booked with the Opposite Party, it cannot be said that they intended to earn their livelihood by means of self use of the said commercial property. Therefore the case of the Complainants is not covered by the explanation below Section 2 (1) (d) of the Consumer Protection Act.
5. The learned counsel for the Complainants submits that it should be the nature of the business investments which needs to be considered by this Commission for the purpose of deciding whether the services were availed for a commercial purpose or not. I fail to appreciate the arguments in the context of a commercial purpose. Admittedly, the premises booked by the Complainants was to be located in a commercial building and therefore by its very nature it was a commercial premises. Therefore, unless the Complainants are able to bring his case within the four corners of the explanation below Section 2 (1) (d) of the Consumer Protection Act, this commission would not have jurisdiction to entertain their grievance.
Since the Complainants have failed to bring their case within the four corners of the Consumer Protection Act, there is no option but to dismiss their complaint as not maintainable.
DISMISSED PAGE 9 OF 14 C. NO. 216/2022 D.O.D.: 22.10.2024
JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
The complaint is dismissed accordingly. It is however made clear that the dismissal of the complaint will not come in the way of the Complainants for approaching a Forum other than a Consumer Forum for the redressal of their grievance.
14. Above dicta makes it clear that it does not include a person who avails of such services for any commercial purpose. Furthermore, it is also clear that the onus lies on the Complainant to show that they have availed the services of the Opposite Party exclusively for the purpose of earning their livelihood by means of self-employment. Returning to the facts of the present case, the Complainant has failed to provide any evidence to substantiate the claim that the units were specifically booked for the purpose of earning a livelihood.
15. More so, it is evident from the Agreement dated 24.11.2016 that the Complainant i.e., Jhuma Entertainment Pvt. Ltd. booked the all three units in the commercial project of the Opposite Party i.e., Vardhman Alfa Square situated at Greater Noida, Uttar Pradesh. Further, the Complainant also admitted in para 4 of the present that the in year 2012, the Complainant was looking for the commercial space for its uses.
16. Further, in the Consumer Case Consumer Case No. 886 of 2020, titled as M/S Freight System (India) Vs. Omkar Realtors & Developers, decided on 25.01.2021, wherein Hon'ble NCDRC held:
"12. The question here relates to purchase of commercial space in a commercial complex, in its own name, as its, the company's property, its immovable capital assets. Human resource is an integral part of the operating requirements of a company, it is an indispensable part of its operating requirements, without which it cannot undertake its profit-generating activity.
DISMISSED PAGE 10 OF 14 C. NO. 216/2022 D.O.D.: 22.10.2024
JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
Capital expenditure for its human resource decidedly has a 'close and direct nexus' with a company's profit generating activity, the 'dominant purpose' is decidedly linked to its commercial activity.
To view the capital expenditure on human resource in isolation or opacity to its profit-generating activity, as to anyhow enable a company to fall in the definition of 'consumer', is per se illogical and incorrect, and it defeats the purpose for which "but does not include a person who avails of such service for any commercial purpose." has been specifically provided in Sub-section (ii) of Section 2(7).
13. It has also to be noted that a company creating immovable capital assets in the form of lands and buildings, in its own name, for its office, is differently placed from a company buying a car, in its own name, 'solely or principally' for the personal use of its Directors or employees. A car is not an immovable capital asset in the nature of lands and buildings. The two cannot be equated, drawing a simile is non sequitur.
Thus, creation of immovable capital assets in the form of lands and buildings is materially different from the question which was answered as below by a bench comprising three members of this Commission in the Crompton Greaves Limited case.
11. For the reasons stated hereinabove, the issue referred to the larger Bench is answered as follows:
(a) if a car or any other goods are obtained or any services are hired or availed by a company for the use/personal use of its directors or employees, such a transaction does not amount to DISMISSED PAGE 11 OF 14 C. NO. 216/2022 D.O.D.: 22.10.2024 JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
purchase of goods or hiring or availing of services for a commercial purpose, irrespective of whether the goods or services are used solely for the personal purposes of the directors or employees of the company or they are used primarily for the use of the directors or employees of the company and incidentally for the purposes of the company.
(b) The purchase of a car or any other goods or hiring or availing of services by a company for the purposes of the company amount to purchase for a commercial purpose, even if such a car or other goods or such services are incidentally used by the directors or employees of the company for their personal purposes.
14. The question at hand, in respect of a company purchasing commercial space for its office in a commercial complex, is also materially different from a company indemnifying its raw materials, goods in process, finished goods, plant and machinery, lands and buildings, etc., by taking insurance. In such case, the purpose is indemnification against perils, nothing per se to do 'closely and directly' with its profit- generating activity, the 'dominant purpose' is not linked with its commercial activity, as such the company straightaway falls within the meaning of 'consumer' in accordance with Section 2(7), without necessitating a detailed exposition.
15. It may be added for completeness that the lands and buildings of a company, its property, its immovable capital assets, should ordinarily not be viewed in isolation of its objects as given in its Memorandum (Section 4(1)(c) of The Companies Act, 2013).
DISMISSED PAGE 12 OF 14 C. NO. 216/2022 D.O.D.: 22.10.2024
JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
A company formed with charitable objects, etc. (Section 8 of The Companies Act, 2013), which has in its objects the promotion of commerce, art, science, sports, education; research, social welfare, religion, charity, protection of environment, or any such other object, and intends to apply its profits, if any, or other income in promoting its objects, and intends to prohibit the payment of any dividend to its members, is differently placed from a company formed with the sole intention of earning profit.
Learned senior Counsel submitted that the Complainant Co. is not a company formed with charitable objects, etc.
16. The Complainant Co.'s case, that it is a 'consumer', fails on its facts and on the law. It may however also be observed here that anyhow allowing anyone into consumer protection fora has adverse ramifications, including inter alia:
[a] evasion of court fee in civil courts; and [b] eroding into the time and resources of consumer protection fora, which could otherwise be better devoted to the ordinary general consumers, who straightaway fall, ex facie, in the definition of 'consumer' (without having to write a treatise to enable their anyhow entry into the fora).
17. To conclude:
[a] the Complainant Co. does not fall in the definition of 'consumer' contained in Section 2(7) of the Act 2019; and [b] it does not get benefit from the Lilavati Kirtilal Mehta Medical Trust case and the Crompton Greaves Limited case."
DISMISSED PAGE 13 OF 14 C. NO. 216/2022 D.O.D.: 22.10.2024
JHUMA ENTERTAINMENT PVT. LTD. VS. M/S VARDHMAN IFRADEVELOPERS PVT. LTD.
17. In the above case, a similar view has been taken that the Complainant has failed to establish, in fact and in law, that it is a consumer.
Therefore, based on the available evidence in this case, it is apparent that the Complainant's purchase of the unit in the commercial project of the Opposite Party was not exclusively for the purpose of earning a livelihood through self-employment. As a result, the Complainant is not consumer under definition provided in the consumer protection act 2019.
18. Consequently, the present complaint stands dismissed with no orders as to cost.
19. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
20. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
21. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT PINKI MEMBER (JUDICIAL) Pronounced On:
22.10.2024
DISMISSED PAGE 14 OF 14