State Consumer Disputes Redressal Commission
M/S Imperia Structures Ltd. vs Sh. Umesh Chandra Rastogi on 30 May, 2017
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 30.05.2017 First Appeal No.746/2014 (Arising out of the order dated 31.05.2014 passed in Complaint Case No.436/2012 by the District Consumer Redressal Forum-VI, New Delhi) M/s. Imperia Structure Limited, A-25, Mohan Cooperative Industrial Estate, New Delhi 110044. ....Appellant Versus 1. Shri Umesh Chandra Rastogi, R/o A-2B/36C, Ekta Apartments, Paschim Vihar, New Delhi -110063. 2. Smti Pushpa Rastogi, W/o Shri Umesh Chandra Rastogi, R/o A-2B/36C, Ekta Apartments, Paschim Vihar, New Delhi -110063. ....Respondents CORAM Justice Veena Birbal, President. Ms. Salma Noor, Member
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Ms. Salma Noor, Member By this appeal, the appellant has challenged the order dated 31.05.2014 by which the complaint case filed by the respondent/complainant i.e. CC No.436/2012, has been allowed and the appellant/OP has been directed as under:
"In view of the above, we partially allow the complaint and direct the OP to refund the sum of Rs.15,00,000/- to the complainant and his wife Smt. Pushpa Rastogi alongwith assured return at the rate of Rs.55/- per square feet of 250 sq. ft. of office space amounting to Rs.12,375/- after the TDS to the complainant and his wife with effect from 01.04.2013 till today. In case S. Tax Rs.39,000/- is refundable as per rules of concerned department the OP shall either pay Rs.39,000/- to complainant and his wife who shall give no objection for refund to OP, if needed, for withdrawal of amount from department concerned. In the alternative OP shall give no objection/letter of authority to complainant and his wife for getting refund of said amount of S. Tax of Rs.39,000/- themselves from concerned department. We further direct the OP to pay the compensation and litigation cost in the sum of Rs.50,000/- to the complainant and his wife Smt. Pushpa Rastogi.
Briefly the facts relevant for the disposal of present appeal are that a complaint under Section 12 of the Act was filed by the respondent/complainant before the Ld. District Forum alleging therein that the respondent/complainant had booked an office space with the appellant/OP in its project "The Byron" situated at Gurgaon by making full payment of Rs.15,00,000/- between 07.08.2011 to 26.09.2011 vide MOU dated 12.06.2013. It was alleged that since the respondent/complainant was in New Zealand, he made the payments through his wife. The respondent/complainant had left the necessary documents and signed form with the broker. It was alleged that the broker had made an error in the form by filling the wrong square feet, he booked 02 Nos. 250 sq. ft. instead of 01 No. 250 sq. ft. office space and wrote 50% amount paid whereas full payment was made by the respondent/complainant for the booked area. It was alleged that on his return, the respondent/complainant got the error rectified from the appellant/OP, pursuant to which the earlier MOU was withdrawn and a new MOU was signed. It was alleged that the appellant/OP paid the assured return of only 11% which was applicable to part paid units against 12% applicable to fully paid. It was alleged that despite written representation dated 17.05.2012 and the fact that the respondent/complainant had already made full payment of Rs.15,00,000/- plus S. Tax of Rs.39,000/-, the appellant/OP gave return at the rate of 11% which was Rs.12,375/- per month after deducting the TDS. It was alleged that the assured return at aforesaid rate continued for about 19 months and during the said period the appellant/OP kept on assuring the respondent/complainant that construction would start soon and that he would be given appreciation of rates and resale besides assured returns. It was alleged that due to inordinate delay caused by the appellant/OP in starting the project, the respondent/complainant decided to cancel the booking and requested the appellant/OP on 12.06.2013 to refund the amount of Rs.15,00,000/- with assured return which were earlier paid by means of advance post dated cheques till 31.03.2013 with effect from 01.04.2013 at the rate of Rs.12,375/- till refund of amount with S. Tax of Rs.39,000/-. It was alleged that total dues from appellant/OP went up to Rs.15,70,875/- with assured returns due continuing to accrue even after July 2013 till the settlement of claim by appellant/OP.
It was alleged that due to inability of the appellant/OP to start the project, the respondent/complainant on 12.06.2013 asked for refund the amount of Rs.15,00,000/- with the assured return plus S. Tax of Rs.39,000/-. It was alleged that the total dues from the appellant/OP went up to Rs.15,70,875/- with assured returns due continuing to accrue even after July 2013. It was alleged that the respondent/complainant also requested that the assured return be paid @12% instead of 11%. The appellant/OP told the respondent/complainant that they were not liable to give the assured return with effect from 01.04.2013 and that there would also be certain percentage of deduction on the contrary as the respondent/complainant had asked for refund due to the inability of the appellant/OP to start the project. It was alleged that the appellant/OP informed the respondent/complainant that they would also deduct the amount of commission paid to the broker and that the respondent/complainant would also have to get the NOC from the broker. It was alleged that the appellant/OP told the respondent/complainant that after completing all the requirements, it will take another two months for refund of amount.
It was alleged that due to aforesaid acts of the appellant/OP, the respondent/complainant felt cheated as the appellant/OP was using the money paid by the him and did not start the project nor paid the assured return to the respondent/complainant. The respondent/complainant alleging deficiency in service on the part of the appellant/OP filed the complaint before the District Forum seeking direction to the appellant/OP to refund Rs.15,00,000/- paid for the booking of the plot plus unpaid accrued assured return w.e.f. 01.04.2013 and asked for necessary documents showing the time when OP deposited the S. Tax of Rs. 39,000/- taken from the respondent/complainant so as to facilitate refund plus differential of one percent assured return paid @11% while the due was 12%. The respondent/complainant also sought Rs.2,00,000/- as damages and Rs.1,000/- towards costs of litigation.
The complaint was opposed by the appellant/OP by filing a written version alleging therein that there was neither any deficiency in service nor negligence on the part of the appellant/OP as such complaint was not maintainable. It was also alleged that there existed a provision for arbitration under clause 27 of the MOU signed between the parties and the disputes were to be adjudicated thereunder. On merits, the appellant/OP admitted that the respondent/complainant had made payment of Rs.15,00,000/- and booking was made in the name of the respondent/complainant and his wife. Appellant/OP also admitted that pursuant to the request of the respondent/complainant the booking was altered/converted from 500 sq. ft. to that of 250 sq. ft. and 50% payment against the initial booking of 500 sq. ft. was adjusted against 100% payment of altered/converted booing of 250 sq. ft. The appellant/OP denied that assured return of 11% was payable in respect of part paid unit, while 12% return was payable in respect of fully paid booking. Appellant/OP did not deny that the respondent/complainant had made full payment against booking of 250 sq. ft. but denied that the respondent/complainant was entitled to assured return @12%. It was also denied that the respondent/complainant was entitled to an assured return of Rs.13,500/- per month after deduction of TDS. The appellant/OP alleged that the payment of assured return was governed by clause 4 of the MOU, according to which complainant was entitled to assured return @ Rs.55/- per sq. ft. per month which was amounting to Rs.13,750/- per month and after deduction of TDS it would come to Rs.12,375/-. The appellant/OP did not deny that respondent/complainant made a request for cancellation of the booking, however, denied that cancellation was on account of inordinate delay and long waiting time in execution of the work at the side. It was alleged that the allegations were afterthought as in the written application dated 12.06.2013, the respondent/complainant had stated that they wanted to cancel allotment due to some unavoidable circumstances. It was alleged that after deriving benefit of assured return, the respondent/complainant was not entitled to cancel the booking and that cancellation under such circumstances entails a penalty of forfeiture of earnest money and other charges. Appellant/OP denied other allegation levelled in the complaint and prayed that respondent/complainant was not entitled for relief claimed in the complaint.
Rejoinder was filed wherein the respondent/complainant reiterated the averments made in the complaint. Both parties filed their evidence in the form of affidavits and also filed documents.
After hearing counsel for the parties, Ld. District Forum allowed the complaint and ordered for refund of Rs.15,00,000/- to the complainant with assured return @55/- per sq. ft. of 250 sq. ft. amounting to Rs.12,375/- after TDS to the respondent/complainant from 01.04.2013 till the date of order till the recovery of the amount and Rs.50,000/- was awarded towards compensation and costs of litigation.
Aggrieved with the aforesaid order, present appeal has been filed
9. Ld. Counsel for appellant/OP has contended that the respondent/complainant is not a consumer in terms of definition of consumer given under Section 2(1)(d) of the Act and as such he had no authority to maintain the consumer complaint. It is contended that as per own case of respondent/complainant, he had booked an office space with appellant/OP. It is nowhere mentioned in the complaint that the said office space was booked for the purpose of earning livelihood by means of self employment. Ld. Counsel submits that though the above said contention was not raised before the District Forum, however, the same can be raised at any stage. It is contended that contention raised goes to the root of the matter as the Ld. District Forum had entertained the complaint without having any jurisdiction in the matter.
10. On the other hand, respondent/complainant has argued that the District Forum has rightly entertained the complaint and the decision has been given after considering the material on record and as such the appeal is liable to be dismissed.
11. We have heard the parties and carefully gone through the record including the complaint filed by the respondent/complainant before the District Forum.
12. In order to appreciate the contention of the appellant/OP, it is necessary to have a look on the definition of the "Consumer" relating to hiring or availing of services as provided under Section 2(1)(d) of the Act, which 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 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 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."
13. On reading of the above definition, it is evident that a person is a consumer who buys any goods for consideration or hires any services for consideration and also includes a user of such goods or a beneficiary of such services. To this vide definition the section itself provides an exclusion and it excludes a person from the definition of consumer who obtains such goods for resale or any commercial purpose or who avails services of any description free of charge or under a contract of personal service for any commercial purpose. The legislature has also provided for a further exception by providing the explanation envisaging that commercial purpose does not include use by a person of goods bought and used by him and the services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.
14. We have carefully gone through the contents of complaint. In para 3 of its complaint, the respondent/complainant has stated that he had booked an office space with the opposite party in the project "The Byron" located at Gurgaon by making full payment of Rs. 15 Lakhs in between the dates 07th August, 2011 to 26th September, 2011, as mentioned in the M.O.U. of the appellant/OP which had been submitted to the appellant/OP by the respondent/complainant in original on 12.06.2013. Nowhere in the complaint, the respondent/complainant has pleaded that he had booked an office space for earning his livelihood. On perusal of averments in the complaint, it becomes clear that the respondent/complainant has not pleaded in the complaint that he had booked the office space for using the same exclusively for the purpose of earning his livelihood by means of self employment. In the affidavit evidence he has nowhere mentioned that he had purchased aforesaid office space for the sole purpose of earning his livelihood. There is nothing on record to show that the said office space was purchased by the respondent/complainant exclusively for earning his livelihood by means of self employment.
15. Thus it becomes clear that booking of office space in the project of appellant/OP is for a commercial purpose and respondent/complainant does not fall within the definition of 'consumer' given under Section 2(1)(d) of the Act. The complaint filed by respondent/complainant was not maintainable before the Ld. District Forum.
16. We, therefore, allow the appeal and set aside the impugned order and consequently dismiss CC No.436/12. The respondent/complainant is at liberty to seek redressal of his grievances by approaching appropriate forum in accordance with law. He may seek condonation of delay in view of judgement of Supreme Court in the matter of Laxmi Engineering Works vs PSG Industrial Institute, (1995) 3 SCC 583.
17. Copy of this order be sent to the parties and be also sent to the concerned District Forum for information. The record of the District Forum be also sent back forthwith. Thereafter the file be consigned to record room.
(Justice Veena Birbal) President (Salma Noor) Member