State Consumer Disputes Redressal Commission
Alka R. Singh vs Shalimar Estates (Pvt.) Ltd., on 9 October, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint Case No : 18 of 2012 Date of Institution : 23.03.2012 Date of Decision : 09.10.2012 Alka R. Singh wife of Sh. Ranbir Singh, presently residing at House No.74, Sukhna Enclave, Block C, Village Kansal, Distt. SAS Nagar (Mohali) and permanent resident of House No.24, Sector 15/A, Chandigarh. Complainant. VERSUS Shalimar Estates (Pvt.) Ltd., SCO No.110-111, Sector 8-C, Chandigarh. ....Opposite Party. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by:Kr. Yuvraj Singh, Advocate for the complainant.
Sh. Arun Kumar, Advocate for the Opposite Party.
PER MRS. NEENA SANDHU, MEMBER.
The facts, in brief, are that the complainant approached the Opposite Party, for purchasing a Commercial Showroom at Shalimar Plaza, Site No.1, IFP, Phase 8-B, IT City, Mohali, for settling her son, who is medically unwell. It was stated that the Opposite Party informed the complainant, about its construction plans, and also gave an assurance that its project had been duly approved by the concerned Government Authority. It was further stated that being allured by the attractive offer of the Opposite Party, the complainant entered into an agreement with it, with regard to the purchase of a 400 Sq. Ft. commercial Showroom @Rs.8,325/- per Sq. Ft. at Shalimar Plaza, Mohali. It was further stated that the complainant alongwith her cousin brother; Ranbir Singh son of Sh. Yad Ram Singh, applied for registration for allotment of the aforesaid commercial Showroom. It was further stated that as per the scheme, the complainant initially deposited Rs.3,60,000/- through demand draft on 14.2.2006, being registration charges for allotment of the aforesaid commercial Showroom. It was further stated that the complainant received an acceptance-cum-demand letter dated 28.2.2006, from the Opposite Party, whereby she was given the payment schedule, in respect of the aforesaid commercial showroom. It was further stated that, as per the information brochure (Annexure C-3), the Opposite Party, had promised, in writing, that the complainant would be entitled for delivery of possession, of the aforesaid commercial Showroom, within two years, after completing all the formalities and paying all the dues, according to the Scheme. It was further stated that the complainant also obtained loan of Rs.22,71,434/- from ICICI Bank, by mortgaging her One Kanal house, situated in Sector-8, Panchkula, and had to sell the same, at lesser value, than the market value, under compelling circumstances, as the Opposite Party, had not handed over the physical possession of the aforesaid commercial Showroom in-spite of written promise. It was further stated that the entire loan was paid by the complainant on 23.10.2009 i.e. within 44 months and she had to pay interest of Rs. 5,69,920/-, on the said loan amount. It was further stated that the complainant deposited Rs.7,20,000/- as Registration money on 14.3.2006 vide receipt (Annexure C-5) and subsequently paid all the quarterly installments of Rs.2,50,000/- each, on the due dates. Accordingly, the complainant paid in all a consideration of Rs.23,67,587/- as against the cost of the aforesaid commercial showroom.
2. It was further stated that, in the meantime, the co-applicant and cousin brother Ranbir Singh relinquished his entire rights, in favour of the complainant, and, withdrew his name. Written intimation thereof, was also sent to the Opposite Party, and its record was up-dated accordingly. The complainant was, thus, left as the sole applicant of the aforesaid commercial showroom. It was further stated that as per the brochure, the Opposite Party, was supposed to handover the possession of the aforesaid commercial showroom, within two years, after the complainant has completed all the formalities and paid all dues and furnished/executed all documents prescribed under the scheme. It was stated that all the dues were paid by the complainant by 01.12.2007 and as such, the Opposite Party, was supposed to handover the possession of the aforesaid commercial showroom by the year 2009, but till date, it failed to fulfill its written promise. It was further stated that Opposite Party, is neither giving a definite answer in respect of completion of the project, nor refunding the earnest money of the Rs.23,67,587/-, inspite of numerous visits and requests, since the year 2009. It was stated that finally on 5.3.2012, the Opposite Party refused to return the earnest money to the complainant. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, for directing the Opposite Party, to refund Rs.23,67,587/- deposited by the complainant alongwith interest @15% p.a. from the date of deposit till its actual realization; to pay Rs.5,69,920/- alongwith interest @15% p.a, which was paid as interest to ICICI Bank on the loan amount, to pay a sum of Rs.5,00,000/- as compensation, towards mental agony and physical harassment; and Rs.55,000/- as costs of litigation.
3. The Opposite Party, in its written version, took up the preliminary objection, with regard to the maintainability of the complaint. It was stated that the complainants did not fall with the definition of consumer, as defined under Section 2(1)(d) of the Act, as the showroom, in question, was purchased by her, for commercial purpose, for earning profits.
4. On merits, it was admitted that the complainant booked a commercial showroom with the Opposite Party, and paid a total sum of Rs.23,67,587/- as per the payment schedule. However, it was stated that the complainant purchased the said commercial showroom, for carrying out commercial activity. It was further stated that the construction and development work of the shopping mall, at the site, is in full swing. It was further stated that as a goodwill gesture, the Opposite Party, in order to fulfill its part of obligation, paid damages to the complainant @Rs.10/- per sq. feet. per month, in accordance with Condition No.12 of the application form. It was further stated that the construction of entire ten storey building, including two basements, as also all the outer and inner walls, partitions, plasters, base floorings etc. have been completed and only finishing works and fittings of electrical and air conditioning works are in progress. It was stated that the delay, in completion of shopping mall, was never in the interest of Opposite Party, as it had already spent a huge amount on the project, from its own sources, apart from the amounts received from the complainant. It was further stated that the delay in handing over the physical possession to the complainant, occurred due to force Marjorie circumstances. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The complainant, in support of her case, submitted her affidavit, by way of evidence, alongwith which, a number of documents were attached.
6. Opposite Party, in support of its case, submitted the affidavit of Sh. R. K. Aggarwal, Managing Director of the Opposite Party, by way of evidence, alongwith which, number of judgments were attached.
7. We have heard the Counsel for the complainant, as well as the Opposite Party, and, have gone through the evidence and record of the case, carefully.
8. Before going into the merits of the case, suffice it to say that the Opposite Party, primarily, raised a specific preliminary objection that the present complaint is not maintainable, as the complainant did not fall with the definition of consumer, as defined under Section 2(1)(d) of the Act, which reads 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; 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;
9. On the other hand, the case of the complainant is that she purchased the said commercial showroom, for establishing her only son, who was medically unwell. Hence, she is a consumer qua the Opposite Party. She has specifically denied that the showroom, in question, purchased by her is for carrying out any commercial activity or generating profits, out of it. He further stated that the said showroom was purchased by her exclusively for establishing her son and not to earn her livelihood by means of self employment. In the present case, admittedly, the complainant purchased the said showroom, for settling her son, who allegedly is medically ill. However, she has nowhere mentioned in the body of the complaint, that she purchased the said showroom for earning her livelihood, by means of self-employment. She has also not disclosed, as to what kind of business or activity, his son was to carry, in the said showroom. Even, otherwise, no documentary proof has been placed, on record, by the complainant as regards the medical illness of her son. Therefore, the affidavit tendered by the complainant, in evidence, would not be sufficient enough, to hold that she purchased the said commercial showroom not for carrying any commercial activity. Hence, as per the Explanation appended to Section 2(1)(d)(ii) of the Act, which clearly provides, that, 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 purposes of earning his livelihood, by means of self-employment, it is established that the complainant did not come under the definition of consumer as she purchased the said showroom not for the purposes of earning her livelihood, by means of self-employment. In case SKG Engineering Pvt. Ltd. Vs. Emaar MGF Land Pvt. Ltd., III (2010) CPJ 260 (NC), the complainant-company booked office space and paid consideration but the Opposite Parties cancelled the booking and forfeited the amount. It was held that the space was booked for office purpose and not for earning livelihood, by means of self-employment, and, therefore, the complaint was not maintainable.
10. In view of the above, it is held that the commercial plot, in question, was purchased by the complainant, not for earning her livelihood, by means of self-employment, but for carrying out commercial activity, in the name of her son. In this view of the matter, the complainant does not fall under the definition of consumer, as defined in Section 2(1)(d) of the Act, and, as such, the complaint is liable to be dismissed, on this very score.
11. For the reasons recorded above, the complaint is dismissed, with no order as to costs.
12. Certified Copies of this order be sent to the parties, free of charge.
13. The file be consigned to Record Room, after completion.
Pronounced.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Ad STATE COMMISSION (Complaint Case No.18 of 2012) Argued by:Kr. Yuvraj Singh, Advocate for the complainant.
Sh. Arun Kumar, Advocate for the Opposite Party.
Date:
ORDER Vide our detailed order of even date, recorded separately, this complaint has been dismissed, with no order as to costs.
(NEENA SANDHU) MEMBER (JUSTICE SHAM SUNDER) PRESIDENT AD