National Consumer Disputes Redressal
Inderjit Singh Mangat & Anr. vs Godrej Properties Ltd. on 6 April, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 274 OF 2015 1. INDERJIT SINGH MANGAT & ANR. S/o. Sada Singh Mangat, R/o. H. No. 150 Sector 9, Chandigarh ...........Complainant(s) Versus 1. GODREJ PROPERTIES LTD. Plot No. 70, Industrial Area, Phase-1, Chandigarh - 160 002. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
For the Complainant : Mr. Anandana Handa, Advocate
Mr. Vikash Pathak, Advocate For the Opp.Party : Mr. Venancio D'Costa, Advocate
Mr. Ashish K. Singh, Advocate
Mr. Harshad Pathak, Advocate
Ms. Surbhi Kapur, Advocate
Dated : 06 Apr 2016 ORDER
The complainants booked an office space unit admeasuring 2783 sq. ft. of super built up area on the first floor of commercial complex, which the opposite party was to develop in Chandigarh. The complainants made an advance payment of Rs.1,98,38,119/- to the opposite party. As per the agreement between the parties the possession of the aforesaid unit was to be handed over within 36 months of the project approval by Chandigarh Administration, with a grace period of 6 months. Such approval came on 31.08.2009. Therefore, including the grace period, the possession ought to have been delivered by 29.02.2013. Since the opposite party failed to deliver possession by the aforesaid date, the complainants approached this Commission seeking the following relief:-
"i) Award the claim and grant Compensation for harassment @ Rs.5,00,000/-, compensation for loss of rent: Rs.2,78,300 pm from August 2012 till the handing over of possession, Interest on the amount paid from the date of payment till the date of handing over of possession and Legal costs: Rs.80,000/-. Total compensation for deficiency in service: (a) + (b) + (c) + (d) Compensation under the contract has to be calculated separately and awarded @ Rs.5 per month per square feet of super build up area. Till the date of handing over of possession. The respondent is liable to pay this under the contract.
ii) Hold that the Respondents are liable to pay the complainant the claimed amount with interest at the rate of 18% on account of deficiency in service.
iii) Award an amount of Rs.75,000/- as compensation for mental agony suffered by Complainant."
2. The complaint has been resisted by the opposite party which has taken a preliminary objection that since the premises booked by the complainants was a commercial premises, they are not consumers as defined in Section 2 (1) (d) of the Consumer Protection Act. During the pendency of this complaint, possession of the unit booked by the complainants have already been delivered to them and the only dispute left is with respect to the compensation if any payable by the opposite party to the complainants for the delay in delivering possession of the said unit.
3. In M/s. City View Enterprises vs. Haryana Urban Development Authority & Ors., C.C. No.202/2010, decided on 01.02.2016, this Commission held as under:
"The intent and scope of the explanation was considered by this Commission in Ashok Thapar vs. Supreme Indo Saigan Associates & Anr., C.C. No.31/2008, decided on 19.01.2015 and the following view was taken:
"In the context of the services of housing construction, the explanation comes into play if the following conditions are fulfilled:
(i) The complainant buys the property exclusively for the purpose of earning his livelihood and (ii) He employs himself i.e. he is personally engaged in the activity which is carried on in the aforesaid property.
Unless both these requirements stand fulfilled, the explanation does not come into play and the complainant cannot be said to be a consumer as defined in the Consumer Protection Act, 1986. In our opinion, if a person is already having income through an activity other than the activity which he proposes to undertake in the property purchased by him, he would not be a consumer since in such a case, it cannot be said that the property was purchased by him for the purpose of earning his livelihood, he already having income from other activities. If a person already owns a commercial property, such a person will not be a consumer as defined in the Act since in such a case, it cannot be said that the property is purchased by him for the purpose of earning his livelihood, he being already in possession of a premises which he is using or can use for earning his livelihood. If a person is not personally engaged in the activity which is carried in the said property, he will not be a consumer as defined in the Act because that will not be a case of self-employment which is a necessary requirement for attracting applicability of the explanation attached to Section 2(1)(d) of the Consumer Protection Act.
For instance, if a person is already engaged in business in a premises owned by him and he purchases yet another property for carrying a different or even the same business, he will not be a consumer as defined in the Act. If a professional such as a Doctor, a Chartered Accountant or an Advocate already owns a premises where he is undertaking his professional activity, he will not be a consumer as defined in the Act, if he purchases yet another property for undertaking the same or a different professional activity. On the other hand, if a person carrying a business or engaged in a profession does not own any commercial premises and buys a commercial premises for carrying the same activity, he would be a consumer as defined in the Act provided he is personal engaged in the business or profession which is carried in the said premises, and that business or profession is the only source of his livelihood. A Doctor, Architect, Advocate or a Chartered Accountant who does not own any commercial space, would therefore, be a consumer if he purchases such a space and personally undertakes the same professional activity therein. If however, he already owns an office space and buys another office space, he will not be a consumer as defined in the Act.
To take yet another example, if a person employed in a service, purchases a commercial property for the purpose of earning his livelihood after his retirement by starting his own business or profession in the said commercial property, he would be a consumer as defined in the Act since the activity which he would be carrying in the said commercial property would be the only source of his livelihood after his retirement from service.
If a person does not own a commercial space but is otherwise earning and he purchases a commercial space for carrying an activity different from the activity which is the source of his existing income, he will not be a consumer as defined in the Act since in such a case, it cannot be said that the proposed commercial property will be exclusively for the purpose of earning his livelihood, his sustenance not being dependent upon the new activity which he seeks to carry in the premises in question. That would be the position even if such a person is to get personally engaged in the activity which he is planning to start in the subject premises."
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, 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. 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.
......................J V.K. JAIN PRESIDING MEMBER