State Consumer Disputes Redressal Commission
Arun Chaudhary vs M/S Omaxe Ltd. on 19 May, 2023
C. NO. 1278/2018 MR. ARUN CHAUDHARY VS. M/S OMAXE LTD. D.O.D.: 19.05.2023
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 28.09.2018
Date of hearing: 19.03.2023
Date of Decision: 19.05.2023
COMPLAINT CASE NO.- 1278/2018
IN THE MATTER OF
MR. ARUN CHAUDHARY,
S/O MR. AJIT SINGH,
R/O E/243, FIRST FLOOR,
EAST OF KAILASH, NEW DELHI.
(Through: Mr. S.K Singh, Advocate)
...Complainant
VERSUS
M/S OMAXE LIMITED
REGISTERED OFFICE AT:
7, LOCK SHOPPING CENTRE
KALKAJI, NEW DELHI - 110019.
(Through: D & V Legal, Advocates and Solicitors)
...Opposite Party
DISMISSED PAGE 1 OF 8
C. NO. 1278/2018 MR. ARUN CHAUDHARY VS. M/S OMAXE LTD. D.O.D.: 19.05.2023
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Complainant in person with Mr. S.K. Singh, Counsel for
complainant.
Mr. Vipin Sharma, AR of the Opposite Party.
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) Quash the demand letter dated 23.11.2017 made by the Opposite Party from the Complainant for depositing the remaining balance amount along with the interest;
b) Direct the Opposite Party to refund the deposit amount of Rs.
22,32,962/- deposited by the Complainant along with interest @ 18% p.a. from the date of deposit till realization.
c) Direct the Opposite Party to pay Rs. 5,00,000/- as compensation to the Complainant for harassment and mental agony.
d) Pass any such other order/orders as this Hon'ble Commission may deem fit and proper in the given facts and circumstances of the case.
2. Brief facts necessary for the adjudication of the present complaint are that one Sh. Amrik Budhiraja booked a unit in the project named "Omaxe Connaught Place" of the Opposite Party situated at Beta - II, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh. Thereafter, the Complainant purchased the said unit from Mr. Amrik Budhiraja vide agreement to sell dated 02.05.2005 and all the necessary formalties for transfer were completed, which was also acknowledged by the Opposite Party. Subsequently, an allotment letter with terms and DISMISSED PAGE 2 OF 8 C. NO. 1278/2018 MR. ARUN CHAUDHARY VS. M/S OMAXE LTD. D.O.D.: 19.05.2023 condition dated 29.01.07 was executed between the parties. As per clause 24(a) of the allotment letter, the Opposite Party was to hand over the possession of the said unit within 36 months from the date of the allotment letter. However, the Opposite Party failed to hand over the possession of the unit till date. More so, despite the fact that the Complainant deposited all the requisite installments towards the said unit the Opposite Party repeatedly sending illegal and arbitrary reminder letters date 07.04.2016, 19.11.2016 and 23.11.2017 for the due amount.
3. The Opposite Party has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel for the Opposite Party has submitted the Complainant is not a consumer under the Consumer Protection Act, 1986 as the said unit was purchased for commercial use because the Complainant is running a business under Margrana Traders and also involve in property dealing. He further submitted that the Complainant has no cause of action to file the present complaint.
4. The counsel for Opposite Party also submitted that the complaint is barred by the law of limitations. He further submitted that the Complainant is estopped by his own actions to seek any refund since he failed to take possession of the said unit despite the fact that the Opposite Party asked the Complaint to take possession vide letters dated 02.11.2015, 04.02.2016, 07.04.2016, 19.11.2016 and 23.11.2017.
5. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
6. Written Argument of the both parties also on the record.
DISMISSED PAGE 3 OF 8
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7. The Opposite Party has relied upon following judgment:
i. Inderjit Singh Mangat & anr. Vs. Godrej Properties Ltd., CC no. 274 of 2015 ii. Rajesh Gulati & Anr. Vs. DLF Commercial Complexes Ltd., CC no. 50 of 2011
8. We have perused the material available on record and heard the counsel for the parties.
9. The first question for consideration before us is whether the Complainant fall under the category of 'consumer' defined under the Consumer Protection Act, 1986. To comment on this issue, we deem it appropriate to refer to Section 2(1)(d) of the Consumer Protection Act, 1986, which provides as under:
"(d) "consumer" means any person who, --
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 1 [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;]"
10. The above statutory provision makes it clear that a person who buys goods 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.
DISMISSED PAGE 4 OF 8
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11. 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 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];
DISMISSED PAGE 5 OF 8
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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."
12. 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, 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 DISMISSED PAGE 6 OF 8 C. NO. 1278/2018 MR. ARUN CHAUDHARY VS. M/S OMAXE LTD. D.O.D.: 19.05.2023 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.
13. 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 unit was specifically booked for the purpose of earning a livelihood.
14. More so, it is undisputed between the parties that the Complainant booked the said unit in the commercial project of the Opposite Party i.e., Omaxe Connaught place situated at Gautam Budh Nagar, Uttar Pradesh. Therefore, based on the available evidence in this case, it is DISMISSED PAGE 7 OF 8 C. NO. 1278/2018 MR. ARUN CHAUDHARY VS. M/S OMAXE LTD. D.O.D.: 19.05.2023 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 1986.
15. Consequently, the present complaint stands dismissed with no orders as to cost.
16. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
17. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
18. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT J.P. AGRAWAL MEMBER (GENERAL) Pronounced On:
19.05.2023
DISMISSED PAGE 8 OF 8