State Consumer Disputes Redressal Commission
Deepa Narula vs Tdi Infra. Ltd. on 13 May, 2019
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Complaint Case No. 356/2012 In the matter of: Dr. Deepa Narula C/o Mr. Prashant Narula Presently at: B-1/602A, Janakpuri New Delhi-110058 Also at: 36 Middleport Crescent Scarborough, Ontario M1B 4L1 Canada .......Complainant Versus Taneja Developers and Infrastructure Limited Through its Managing Director 9, Kasturba Gandhi Marg New Delhi-110001 And 10, Shaheed Bhagat Singh Marg Gole Market, New Delhi-110001 .........Opposite Party BEFORE: JUSTICE VEENA BIRBAL - PRESIDENT SALMA NOOR - MEMBER 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes Dated: 13th May 2019 ORDER
Salma Noor, Member This is a complaint filed under section 17 of Consumer Protection Act, 1986 (in short the 'Act') by the complaints stating therein that the complainant on 12.04.2006 had booked a commercial plot measuring 204 sq. yds. @ 29,500/- per sq. yds. in the project namely, TDI City, Mohali, Panjab launched by the OP. Complainant has stated that against the booking of aforesaid commercial plot she had paid Rs. 18,05,400/- till May 2008. The details of payment are given in para 5 of complaint. It is stated that when representative of complainant visited Mohali, he was shocked to know that at the site where the project was to be constructed, there were no roads, sewers or electricity. The commercial plots in the project were not even demarcated and there were no access roads.
It is stated that complainant had planned to establish business in Mohali therefore she booked the said plot to fulfil her needs, however, since there was no scope for the delivery of the said plot in the near future, she had to look for another property. Thereafter, complainant vide letter dated 10.08.2010 requested OP to refund the money alongwith interest. The OP failed to pay any heed to her request and had also failed to reply to the said letter. The complainant and her representatives even visited OP's office, several times but every visit had gone in vain.
It is alleged that after a lapse of almost six years from the date of booking of the said plot, when the complainant did not receive the refund, the complainant sent a legal notice, dated 09.01.2012 stating clearly therein that the complainant is no more interested in continuing with the project and seeks cancellation of the said booking with refund of Rs. 18,05,400/- alongwith interest @ 18% from the date of deposit. However the OP did not reply to the legal notice.
Finding deficiency in service on the part of OP, complainant has filed the present complaint with following prayers:
a) refund of the principal amount of Rs. 18,05,400/- deposited by the complainant.
b) allow an interest @ 18% p.a. on the sum of Rs. 18,05,400/- from the date of deposit of such amount till actual realization thereof;
c) award a sum of Rs. 2,00,000/- towards compensation for mental harassment and torture, suffered by the complainant and damages and expenses for travelling to India to pursue the matter and file case;
d) award a sum of Rs. 1,50,000/- towards legal expenses and other miscellaneous expenses incurred upon the efforts made by the complainant.
OP filed written statement wherein preliminary objection is taken that complainant is not a 'consumer' but a speculator who invested the money with the OP with the sole intent to receive gain, which is a commercial activity and beyond the purview of the Act. On merits, it is admitted that the aforesaid plot was booked by complainant in the project of OP with an expectation to earn profits. It is stated that the OP requested the complainant on several occasions that the plot is available for allotment and asked the complainant to clear the outstanding dues and further requested to make timely future payments as per the payment schedule contained in the Advance Registration Form. It is submitted the complaint kept silence for months and paid the demand of Rs. 6,05,400/- after more than 5 months. Further, OP had orally offered the plot no. 3 to the complainant soon after clearance of the abovementioned payment and was requested to peruse allotment and provide the acceptance so that the OP can block the said particular plot no. 3 in favour of complainant. It is alleged that the complainant due to economic downfall at that period specially in commercial industry kept mum and planned to recover its amount in the shape of this present complaint. It is further stated that after development OP had already handed over the possession to the other customers who had made timely and complete payment. It is stated that OP is ready to handover the commercial plot as committed, but the subject to full payment of sale consideration of Rs. 60,18,000/- and other charges. It is alleged that despite repeated requests for the payment of balance payment complainant kept silent. It is stated that out of basic sale price of Rs. 60,18,000/- complainant has paid only Rs. 18,05,000/- therefore complainant does not have any right to raise finger on development, which is already developed by the respondent from its side.
Complainant has filed rejoinder denying allegations made in the written statement and has reiterated the facts of the complaint case.
In support of her complaint, complainant has filed her own affidavit in evidence. She has placed on record a copy of letter dated 11.12.2007 whereby OP raised demand of Rs. 6,05,400/- Ex. CW1/A receipt dated 12.4.2006 for payment of Rs. 12,00,000/- towards registration amount, Ex. CW1/B; receipt dated 24.5.2008 for payment of Rs. 1,05,400/- Ex. CW1/C; receipt dated 24.5.2008 for payment of Rs., 2,50,000/-, Ex. CW1/E; copy of letter dated 05.1.2008 sent by OP to complainant, Ex. CW1/F; copy of letters dated 10.08.2010, 03.09.2010 and 15.11.2011, Ex. CW1/G, Ex. CW1/H and CW1/I respectively; legal notice dated 09.01.2012, receipt of post and acknowledgement cards showing proof of receipt, Ex. CW1/J (colly) and copy of complaint, Ex. CW1/K. On behalf of OP, evidence in the form of affidavit of Sh. Deepak Arora, authorized signatory of OP is filed wherein contents of written statement are reiterated on oath. OP has filed board resolution whereby Sh. Deepak Arora is authorized to file the affidavit of evidence on behalf of OP, Ex. RW1/I; Advance Registration Form dated 07.04.2006, Ex. RW1/II and copy of demand letters dated 07.11.2006, 18.01.2007, 12.12.2007, 30.01.2008, 15.05.2008, 31.05.2008, Ex, RW-I/III (colly).
We have heard counsel for parties and perused the material on record.
Objection raised by the OP in its written statement is that complainant is not a 'consumer' as per section 2(1)(d) of the Act. We have given our careful consideration to this submission made by the OP and perused the material on record for deciding the said objection of OP. The definition of 'Consumer' as defined under section 2(1)(d) of the Act reads as under:
"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 of partly paid or partly promised, or under any system of deferred payment hen 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 hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under system of deferred payment and includes any beneficiary of such services other than promised, 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 aforesaid provision it is clear that in order to avail the benefit of the explanation the onus is upon the complainant to prove that the plot booked with OP was exclusively for the purposes of earning her livelihood by means of self-employment.
In the present case the averments made in para 4 of the complaint is that the complainant had booked a commercial plot of 204 sq. ft. @ Rs. 29,500/- per sq. yds. in the commercial project of OP after making the payment of Rs. 18,05,400/- for the said commercial plot in April 2006. Nowhere in the complaint has complainant mentioned that she has booked the aforesaid plot for earning her livelihood. It is stated by the OP in its written statement that complainant had booked the plot for investment purpose and to earn maximum profits at the time of boom in the real estate market. It is also stated by the OP that complainant is an NRI and resides in Canada. In complaint no where it is pleaded that complainant is having any plan to settle in India and for that she had booked the plot with OP for earning her livelihood. Even in evidence by way of affidavit nothing is stated in this regard by OP. In the case of Rishi Malhotra v. Blue Coast Infrastructure Pvt. Ltd. & Ors., reported in I (2017) CPJ 541 NC, wherein the complainant was a US citizen and had booked commercial space with the builder. It was held that the unit booked by the complainant was a commercial property and was supposed to be used for commercial purpose. It was held by National Commission that the services hired or availed by the complainant were for commercial purpose as such complainant was not a 'consumer' as defined in section 2(1)d of the Act.
In view of above discussion it is established that the plot booked by the complainant in commercial project of the OP is for commercial purpose as such complaint filed is beyond the purview of Consumer Protection Act. Under these circumstances, complainant is not a 'consumer' as defined under the Act. Accordingly complaint stands dismissed.
Complainant shall be at liberty to lodge her claim in appropriate forum in accordance with law.
Copy of the order be made available to the parties free of costs as per rules and thereafter file be consigned to record room.
(Justice Veena Birbal) President (Salma Noor) Member