ALFA THERM LTD vs UNITECH LIMITED

The present complaint has been filed by Alfa Therm Ltd., the complainant, through its Director, Sh. Harjot Singh Chatha, vide Board of Resolution dated 31.08.2015.

The facts of the present case are similar to the one decided by this Bench, in Consumer Complaint No.1183 of 2015, titled Alfa Therm Ltd. Vs. Unitech Ltd., on 14.10.2015 , wherein the complaint was dismissed, as not maintainable. In the said case, Smt. Chatha, Director, of Alfa Therm Ltd., filed the case in the capacity of Director, on behalf of the complainant, who is the wife of Sh. Harjot Singh Chatha, the present complainant in the instant case.

After dismissal of the case No. 1183/2015, the present complaint has been filed by the complainant against the same Opposite Party, but through different Director, who, being the husband of the Director in the former case. The facts are altogether same, but with different Tower No., Block No., Flat No. and cost of the flat.

In the instant case, Sh. Harjot Singh Chatha, booked a Flat bearing No.701, Block No. HBTN Tower 16, measuring 1693 sq.ft., in the project, to be developed by the Opposite Party, Unitech Habitat, Plot No.9, Sector Pi-II, (Alistonia Estate), Greater Noida, for his own residential use. However, after one year of booking the said Flat, the complainant vide letter dated 01.06.2007, got the name of his company substituted in place of his name, he being Director of the company, for accounting purposes.

The complainant paid a total sum of Rs.61,20,891/- for the said Flat, after taking loan on interest basis @ 18% p.a., and has been paying the EMIs to the extent of Rs.35,117.60. The OP imposed an amount of Rs.2.50 lakhs towards penalty for delayed payments by the complainant. The complainant, however, has paid the same, in spite of no progress with the construction, as the construction was at a standstill. The possession of the flat was to be handed over within 36 months, i.e., by October, 2009, as per clause 4(a)(i) of the allotment letter. However, the construction has not been completed, till date, even after more than 6 years'' from the actual date of handing over the possession of the flat. Aggrieved by the action of the OP, the present complaint has been filed with the following prayers :- " a) Grant a sum of Rs.1,34,16,032/- (towards principal amount of Rs.61,20,891/-, along with compensation in the form of interest of Rs.72,95,141/-) at the rate of 18% p.a., along with pendent lite and future interest at the same rate or such higher rate of interest, which this Hon''ble Commission may deem fit in the interest of justice, from the date of making payments, till the date of actual realization of the payment.

b) Grant cost of litigation to the complainant.

c) Any other order, relief or direction which this Hon''ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the complainant and against the opposite party".

We have heard the counsel for the complainant, on admission. The complainant, being a ''company'', does not fall under the purview of the definition of the word ''consumer'', as defined in Section 2 (1) (d) (ii) of the C.P.Act, 1986.

The complainant, has, nowhere, in the complaint has averred that this Flat would be used exclusively for the purposes of his livelihood, by means of self-employment. These words are conspicuously missing in the complaint. It is also note-worthy that in both the above said cases, i.e., the one filed by the husband, i.e., the instant case and the other filed by the wife, i.e., the former case (CC No.1183/2015), similar type of arguments for residence of the Director were advanced. However, the Resolution is conspicuously silent about the purpose for acquiring this flat. The complainant, therefore, cannot be held to be a ''consumer'', as per Explanation appended to the definition of consumer, vide amendment of the Act, dated 15.03.2003.

This view is fortified by the following authority - In Monstrea Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd., IV (2010) CPJ 299 (NC), this Commission, has held, as under :- "Housing - Purchase of space for commercial purpose - There was delay in possession. Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed. Deficiency in service was alleged. It was held that even if private limited company was treated as ''person'', purchase of space could not be for earning its livelihood. Purchase of ''space'' was for commercial purpose".

The above said view also, fully dovetails with the view taken by this Commission as also upheld by the Hon''ble Supreme Court in M/s. Purusharath Builders Pvt. Ltd. Vs. M/s. Uppal Housing Ltd. & Anr., Civil Appeal Nos. 8990-8991 of 2012, Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India) Ltd., & Anr., CC No.296 of 2011, decided on 03.07.2012, CC No.306 of 2014, decided on 01.09.2014 (Civil Appeal No.9724 of 2014, vide order dated 03.11.2014).

In view of the decision taken in the above said authorities, we are of the considered view that this complaint case is not maintainable and is, therefore, dismissed. However, liberty is granted to the complainant to approach the appropriate forum or civil court, as the case may, as per law, for seeking its grievances, if any. The complainant may take advantage of the ruling of the Hon''ble Supreme Court in the case of Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583, to seek exclusion of the time spent in prosecuting this complaint, before this Commission.