National Consumer Disputes Redressal
Mrs. Priti Arora, vs M/S Arn Infrastructure India Pvt. Ltd., on 6 April, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 246 OF 2013 1. Mrs. PRITI ARORA, W/o Shri Sandeep Arora, R/o B-1/424, Janakpuri, NEW DELHI - 110058. ...........Complainant(s) Versus 1. M/s ARN INFRASTRUCTURE INDIA PVT. LTD., Through its Chairman/Managing Director, 9, Birla House, Arya Samaj Road, Karol Bagh, NEW DELHI - 110005. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR,MEMBER
For the Complainant : MR. VARUN KATHURIA, For the Opp.Party : Ms. Upasana Talwar, Advocate
Dated : 06 Apr 2017 ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
Mrs. Priti Arora, the complainant herein has filed instant consumer complaint against opposite party Developer alleging deficiency in service on the part of the opposite party developer and sought the following reliefs:
"a. direct the Respondent/Opposite Party to refund the amount of Rs.1,14,30,048/- paid by the complainant towards the booking of her unit with interest @ 18% per annum from the date of payment, till date of realization;
OR IN THE ALTERNATIVE a direct the respondent/Opposite Party to hand over vacant and peaceful possession of the site, complete in all respects to the Complainant;
b. direct the Respondent/Opposite Party to pay a sum of Rs.33,50,400/- to the complainant, being the monthly committed return due to the complainant w.e.f. April 2011 till April 2013 with pendent lite and future interest @ 18% per annum from the date of accrual till date of realization;
c. Direct the respondent/opposite party to pay a sum of Rs.1,00,00,000/- to the complainant as compensation on account of harassment, mental tension, agony suffered by the complainant;
d. Direct the respondent/opposite party to pay a sum of Rs.1,39,600/- each month to the complainant as the monthly committed return w.e.f. May 2013 pendente lite till date of handing over of possession of the unit complete and operational in all respects/ date of refund along with interest @ 18% per annum;
e. award costs of the present complaint in favour of the complainant and against the respondent/opposite party;
f. pass such other or future orders, as this Hon'ble Forum may deem fit and proper in the facts and circumstances of the case and in the interest of justice."
2. The opposite party on being served with notice has filed written statement denying the allegations on merit on various counts. The opposite party has taken a preliminary objection that the instant complaint is not maintainable because the complainant is not consumer as defined under section 2 (1) (d) of the Consumer Protection Act, 1986 (in short, the Act ) as she had purchased multiple units in the project for commercial purpose.
3. As the above noted preliminary objection goes to the root of the case, we have heard arguments on maintainability of complaint.
4. Learned counsel for the opposite party has taken us through the complaint and submitted that admittedly the complainant had entered into multiple builder-buyer agreements with the opposite party for booking of the commercial space. Therefore, it is clear that services of the opposite party were availed by the complainant for commercial purpose. As such, in view of exception carved out in the definition of consumer, the complainant cannot be termed as 'consumer' as envisaged under section 2 (1) (d) of the Act. It is argued that as the complainant is not a consumer, he has no locus standi to raise the consumer dispute.
5. Learned counsel for the complainant on the contrary has taken us through the definition of 'consumer' under section 2 (1) (d) of the Act particularly the Explanation and submitted that Explanation to Section 2 (1) (d) gives a restricted meaning to the term 'commercial purpose'. Expanding on the argument, learned counsel for the complainant has drawn our attention to the affidavit evidence of the complainant and submitted that from the aforesaid affidavit, it is established that complainant had booked the subject commercial spaces with the intention of using the same for self- employment in order to earn her livelihood. Therefore, the complainant falls within the Exception to Section 2 (1) (d) of the Act. In support of the above contention, the complainant has relied upon the judgment of the Supreme Court in the matter of National Seeds Corporation Ltd. Vs. M Madhusudhan Reddy & Anr. AIR 2012 SC 1160 as also the judgments of the Coordinate Benches of this Commission in the matters of Chilukuri Adarsh Vs M/s Ess Ess Vee Constructions III (2012) CPJ 315 (NC), Ashok Thapar Vs Supreme Indosaigon Associates & Ors. II (2016) CPJ 160 (NC). Complainant has also relied upon the judgments of this Commission in the matters of Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. & Ors. 1 (2016) 31 (NC), DLF Universal Limited Vs. Nirmala Devi Gupta II (2016) CPJ 316 (NC), Ashish Oberai Vs. Emaar MGF Land Limited I (2017) CPJ 17 (NC) & Kushal K Rana Vs. DLF Commercial Complexes Ltd. IV (2014) CPJ 287 (NC)
6. In order to appreciate the contention of the parties, it would be useful to have a look on the definition of consumer in relation to person hiring or availing of services as defined under section 2 (1) (d) (ii), which reads as under:
(d) "consumer" means any person who--
(i) xxxxxxxxxxxxxxxxx
(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."
7. On reading of the above, it is clear that in the context of hiring or availing of service, a person is a consumer who hires or avail of service for consideration but does not include a person who hires or avails of service of someone for any commercial purpose.
8. Admittedly, the complainant had entered into multiple MOUs for booking commercial spaces in the commercial project. Therefore, it cannot be disputed that complainant has hired / availed of services of the opposite party for commercial purpose. Therefore, unless it is established that case of the complainant falls within the ambit of the Explanation to Section 2 (1) (d) of the Act in view of Exception carved out in the definition of consumer, complainant is excluded from the definition of consumer.
9. Stand taken by the complainant is that complainant had booked the subject commercial spaces with the intention to use the same for her business to earn her livelihood by way of self employment. Therefore, case of the complainant is squarely covered under the Explanation to Section 2 (1) (d) of the Act, which gives restricted meaning to the term 'commercial purpose'. In support of the above contention, learned counsel has drawn our attention to para 6 of the complaint, wherein complainant apart from other allegations have alleged that : "It is pertinent to mention here that units were purchased by the complainant for self use to enable her to earn her livelihood which makes her a consumer under the Consumer Protection Act." Learned counsel has submitted that in order to prove that allegation, complainant has filed her affidavit confirming her intention.
10. We do not find merit in the above contention for the following reasons:
11. In our considered view, complainant in order to avail of benefit of explanation to Section 2 (1) (d) of the Act, the complainant is not only required to allege that she had hired or availed of services exclusively for the purpose of earning livelihood by means of self employment but she has to prove the same.
12. In this regard, affidavit evidence of complainant assumes importance. In para 5 of the affidavit, the complainant has averred that:
"It is pertinent to mention here that units were purchased by the complainant for self use to enable her to earn her livelihood which makes her a consumer under the Consumer Protection Act."
13. On bare reading of the above, it is clear that above averment is nothing but reproduction of the allegations in the complaint. The question is whether such an affidavit can be taken as proof of the fact that the case of the complainant falls within the Explanation?. Our answer to the above question is in the negative particularly in view of the discussion below:
14. To find answer to the above question, it would be useful to have a look on the MOUs executed between the parties. It is undisputed that first MOU was executed between the parties for 500 sq. ft. space on 30.04.2008, the second MOU was executed for booking space of 500 sq. ft. in the subject project on 03.05.2008 and third MOU was executed on 06.08.2010 when the complainant booked further space of 1363 sq. ft. on the ground floor of Tower-C of the subject project for consideration of Rs.55,53,248/-. Mere fact that complainant had been booking commercial spaces one after another on three different occasions is clear indication that commercial spaces were booked by the complainant for commercial intent and not with intention to use the same for the purpose of earning livelihood by way of self employment but for commercial purpose i.e. to earn profit. Our aforesaid view is fortified by the following similar clauses in the three MOUs signed by the parties. The said clauses reads as under:
Memorandum of Understanding dated 30.04.2008 "Since the Office space would be completed and handed over by December 2009, and since the INVESTOR has paid the registration, the DEVELOPER hereby undertakes to make a consolidated payment of Rs.22,750 ( Rupees Twenty Two Thousand Seven Hundred and Fifty Only) less TDS as applicable every calendar month to the INVESTOR as a committed return w.e.f. January 2010 up to the date of handing over of possession to the INVESTOR. If Developer hands over the possession before December 2009 then Investor will return the committed charges from that date upto Dec. 09.
That the developer has assured the Investor to get the first lease done of the unit for a minimum period 3 years period @ minimum Rs.22,750/- ( Rupees Twenty Two Thousand Seven Hundred and Fifty only) per month from the date of possession.
In case the lease rent fetched is more than Rs.22,750 ( Rupees Twenty Two Thousand Seven Hundred and Fifty only) per month then the surplus amount will be given to the investor.
That the Developer will give monthly cheques to the Investor in individual name every year till date of possession or further subject to deduction of TDS as per rates described in Income Tax Act, 1961 in the relevant periods."
Memorandum of Understanding dated 03.05.2008 "Since the Office space would be completed and handed over by December 2009, and since the INVESTOR has paid the registration, the DEVELOPER hereby undertakes to make a consolidated payment of Rs.22,750 ( Rupees Twenty Two Thousand Seven Hundred and Fifty Only) less TDS as applicable every calendar month to the INVESTOR as a committed return w.e.f. January 2010 up to the date of handing over of possession to the INVESTOR.
That the developer has assured the Investor to get the first lease done of the unit for a minimum period 3 years period @ minimum Rs.22,750/- ( Rupees Twenty Two Thousand Seven Hundred and Fifty only) per month from the date of possession.
In case the lease rent fetched is more than Rs.22,750 ( Rupees Twenty Two Thousand Seven Hundred and Fifty only) per month then the surplus amount will be given to the investor.
That the Developer will give monthly cheques to the Investor in individual name every year till date of possession or further subject to deduction of TDS as per rates described in Income Tax Act, 1961 in the relevant periods."
Memorandum of Understanding dated 06.08.2010 "Since the DEVELOPER expects the Unit to be ready and complete for occupation by September 2010, and since the ALLOTTEE has paid back the bulk of the consideration hereunder, the DEVELOPER hereby undertakes to make a consolidated payment of Rs.68,150 ( Rupees Sixty Eight Thousand One Hundred Fifty Only) less TDS as applicable every calendar month to the ALLOTTEE as committed return w.e.f. October 2010 till date of occupation.
That the developer has assured the ALLOTTEE to get the first lease done of the unit for a minimum period 3 years period @ minimum Rs. 68,150/- ( Rupees Sixty Eight Thousand One Hundred Fifty only) from the date of possession. In case the lease rent fetched more than 68,150/- ( Rupees Sixty Eight Thousand One Hundred Fifty only)per month then the surplus amount will be given to the allottee.
The ALLOTTEE hereby duly authorizes the DEVELOPER to lease out the said UNIT on its behalf. That the Developer will give monthly cheques to the ALLOTTEE in individual names of all owners / co-owners equally for every year till date of occupation or further subject to deduction of TDS as per rates described in Income Tax Act, 1961 in the relevant periods".
15. On bare reading of the above, it is clear that intention of complainant while booking spaces in the subject project was not to use the same for earning her livelihood by way of self employment. Had this been the intention, the complainant would not have entered into the aforesaid lease clause with the opposite party. Thus, it is clear that case of complainant does not fall within the Explanation to Section 2 (1) (d) of the Act. As the complainant has booked commercial spaces in a project undertaken by the opposite party, she cannot be termed as consumer in view of the Exception carved out in the definition. As the complainant is not a consumer, she does not have locus standi to file consumer complaint. It is accordingly dismissed.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... ANUP K THAKUR MEMBER