Monstera Estate Pvt Ltd vs Ardee Infrastructure Pvt Ltd

COMPLAINT has been filed, inter alia, alleging that the complainant is a private limited company. Opposite party-builder proposed to construct a fully air-conditioned multi-storeyed commercial complex to be called ''Plaza Gardenia Mall'' at Ardee City, Sector 52 in village Wazirabad and Bindapur in District Gurgaon. Opposite party had allotted ''SR-05 GF'' admeasuring 3237 sq. ft. show-room space on the ground floor in the said Mall to one Ved Chaudhary who had the right to nominate any person for allotment of that space as per supplementary agreement dated 1.7.2002 executed between the opposite party and Ved Chaudhary. Ved Chaudhary nominated the complainant by completing all the formalities. Sale consideration of the space was Rs. 33,01,740. Under Clause (12) of the agreement, the possession of the space was to be handed over within 24 months from the commencement of construction and / or not later than September 2004. Under Clause (48), it was agreed by the opposite party that it would be liable to pay penalty of Rs. 45 per sq. ft. saleable area per month in case of delay in handing over the possession of the space beyond September 2004. Despite payment of the entire sale consideration, the opposite party has failed to hand over the possession and execute Sale Deed of the said space.

DIRECTION is sought to be made to the opposite party to hand over the space, execute sale deed and pay penalty @ Rs. 45 per sq. ft. for the delay along with interest since September 2004 to the complainant.

I have heard Mr. Shailen Bhatia, Adv. on the maintainability of the complaint under the Consumer Protection Act, 1986 (for short ''the Act).

SECTION 2(1)(d) of the Act defines the expression ''consumer'' who can maintain a complaint under the Act. Sub-clause (ii) of Section 2(1)(d) which is material, runs as follows: "(i) .............................. (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 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.]"

COMPLAINANT alleges that it has availed of the services of the opposite party for providing space in the Mall and paid Rs. 33,01,740 towards sale consideration. Even if the complainant, a private limited company is treated as a ''person'' the purchase of space cannot be for earning its livelihood by means of self -employment within the meaning of the explanation nor such a case has been specifically pleaded in the complaint. Purchase of space was for commercial purpose. Complaint, therefore, deserves to be dismissed being not maintainable under the Act. Dismissed as such. Complaint dismissed.