SUNIL KALRA & ANR. vs UNITECH LIMITED & ANR.

The present revision petition has been filed against the judgment dated 31.05.2016 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh (''the State Commission'') in First Appeal no. 36 of 2016.

The facts of the case as per the petitioner/ complainant are that on an advertisement and invitation of offer of selling units (shops) petitioners had decided to purchase the shop for earning their livelihood, since they had planned to move and settle at Mohali hoping for a better future. The petitioners were informed that the respondents proposed to set up a Mega Township by the name of Garden Galleria, Uniworld City Township, Sector 106, Mohali, Punjab comprising of plots, villas, multi-storied group housing, commercial complexes etc. It was assured by the respondent that the lay out plan of the said township had already been approved by the Government of Punjab. During the year 2004 to 2007, petitioner no. 1 had remained in Mohali and after that he went to Delhi as his job was transferrable. Thereafter, the petitioner had planned to establish his business, data card, internet and allied services. Petitioner no. 1 was working in an MTS company, which was dealing with internet services. The petitioner resigned from the company in the year 2013 and started his own business of data card with a hope that he would get his shop in Garden Galleria for running his business. Therefore, the petitioners proposed to purchase a shop of super area of 620.17 sq ft in Garden Galleria for earning their livelihood by way of self-employment. The petitioners had applied for shop on 16.08.2010 and deposited Rs.2,25,000/- with the respondent. Out of this amount, an amount of Rs.2,17,059/- was the booking amount, i.e., 10% of the total sale consideration and balance Rs.7941/- was advance for the next instalment. Vide allotment letter dated 16.08.2010, Shop no. 0022 Block no. 00 for sum of Rs.21,70,595/- was allotted in the Garden Galleria. Agreement was signed on 16.09.2010 and possession of the shop was to be delivered within 21 months, which already expired on 16.06.2012. They visited the spot to see the progress of the work but it appeared that the respondent would not be able to complete the construction of the said shop in the near future. The petitioners have already paid an amount of Rs.8,84,799/- to the respondents. As per the agreement, the respondent was liable to pay the charge at the rate of Rs.7/- sq per feet per month for the period of delay in offering the possession. As per clause no. 4.3 of the agreement, the refund of the amount can be claimed with interest for the delayed delivery of the possession of the shop. Non-delivery of possession of the shop within the stipulated period not only amounts to unfair trade practice but also amounts to deficiency in service on the part of the respondents. Hence, they filed the complaint before the District Forum seeking following directions against the respondent: To pay Rs.8,84,799/- along with interest at the rate of 18% per annum;

To pay Rs.7/- per sq ft per month from 16.06.2012 (the date when possession was to be

given) till realisation;

To pay Rs.1,00,000/- for unfair trade practice;

To pay Rs.2,00,000/- as compensation for mental tension and harassment; and

To pay Rs.5500/- as litigation cost.

The complaint was contested by the respondent by filing written statement before the District Forum. While disputing the above said allegations, the respondent pleaded that it failed to deliver the possession to the complainant within the time due to force majeure circumstances. There was Global meltdown of the economy worldwide, wherein the foreign investors, as anticipated by it, refrained from any kind of investment in India, as there was a total cash crunch throughout. All these circumstances were beyond its control. It was specifically mentioned in clause 4.5 of the agreement to sell, it was entitled to reasonable extension of time in delivery of possession in the event of any force majeure circumstances beyond the control of the developer being faced by the respondent company. It has intention to complete the project and handing over the possession of the said unit to petitioners, the respondent cannot be made liable for the above said circumstances, which were beyond their control. As per the agreement, it was only liable to pay the charges at the rate of Rs.7/- per sq ft of the super area per month for the period of delay in offering the possession beyond the committed date, subject to force majeure circumstances. Moreover, the petitioners were not seeking the possession of the said unit and rather claiming refund of the amount paid against the sale consideration. In such an eventuality the claim of refund by them amounts to breach of agreement of sale. As per clause 15 of the same, the respondent shall have the right to terminate the agreement and forfeit the earnest money along with interest on delayed payment and other charges, if any. The petitioners do not fall under the definition of ''consumer'' as per the section 2 (1) (d) of the Act. They purchased the shop for commercial purpose. The petitioners had already been running the business since 2013, hence, the question of earning livelihood through that shop does not arise at all. There was no unfair trade practice and deficiency in its service. It prayed for dismissal of the complaint being false and frivolous.

Learned counsel for the respondent stated that it was wrongly concluded by the District Forum that the petitioners fall under the definition of ''Consumer'', whereas at the time of purchasing the shop they were in service and as such, it could not have been held by the District Forum that the same was purchased for earning their livelihood. Counsel for the respondent has placed reliance on the judgment of the National Commission rendered in Revision Petition no. 2386 of 2011 dated on 27.01.2015 (Harish Kumar Kochar vs Gillco Developers Pvt. Ltd., and Ors). Counsel for the respondent has submitted that the District Forum on its own directed the respondent to pay an interest @ 12% from the respective dates of deposits till realisation, whereas no specific date regarding interest was made in the prayer clause. Counsel for the respondent has prayed for acceptance of the appeal and dismissal of the complaint.

The District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (''the District Forum'') vide its order dated 23.10.2015, while allowing the complaint observed as under: To refund to the complainants amount of Rs.8,84,799/- with interest thereon @ 12% per annum from the respective dates of deposits till actual refund. To pay to the complainants lump sum compensation of Rs.25,000/- for mental agony, harassment and costs of litigation.

Aggrieved by the order of the District Forum, the respondent no. 1 filed an appeal before the State Commission. The State Commission while partly allowing appeal of respondent no. 1 gave the following order: "It was further averred by the appellant that District Forum observed that the complainants were entitled for interest from the respective dates of deposits till realisation, whereas, there was no prayer made by the complainants that they were entitled for refund of the amount from the respective dates of deposits. A perusal of prayer clause reveals that complainants made the prayer in the complaint to pay Rs.8,84,799/- along with interest at the rate of 18% per annum. The elementary and settled rule is that parties cannot go beyond their basic pleadings. In this context apparently by some inadvertence, the District Forum had granted the relief beyond what in fact was claimed. We, therefore, hold that the complainants would be entitled to interest not from the respective dates of deposits as stated by the District Forum, however, they are entitled for the interest from the date of filing the complaint till realisation.

Accordingly, the appeal filed by the OP is partly allowed. The order passed by the District Forum is modified that OP is liable to pay the interest @ 12% on the deposited amount from filing the complaint till realisation. The other part of the order is intact."

Hence, the present revision petition.

We heard the learned counsel for the petitioner. He has contended that the State Commission has erred in modifying the order of the District Forum by ordering that the interest would be paid from the date of filing of the complaint instead of from the respective dates of deposits till actual refund. Taking note of the fact that the petitioner had admittedly booked a commercial space, we have heard the arguments on the issue of locus standi of the petitioner to raise a consumer dispute. In the complaint, the petitioners have stated that the petitioners invested in the commercial space for the sole purpose of earning their livelihood. They purchased the said shop by putting their hard earned money and lifesaving into it. Paragraph three of the complaint reads as under: "3. That since the complainants have planned to move and settled at Mohali hoping for a better future and peaceful environment. Further, it is stated that complainant no. 1 remained in Mohali for some time between the years 2004-2007 and went to Delhi because of his transferable job at MTS and thereafter, he planned to come back to Mohali again in the year 2010 to settle their own business in the field of Data Card, Internet and allied service. Complainant no. 1 was working with MTS Company who is dealing with internet services and has resigned from the company in the year 2013 and started his business of data card and allied services with a hope that he will get his own shop at Garden Galleria for running his business, for his own livelihood, in the year 2013. A copy of the relieving letter from MTS is annexed as Annexure C 1 with the present complaint. Therefore, complainants agreed to purchase and accordingly booked a shop for themselves for earning their livelihood by way of self-employment at Mohali measuring a super area of 620.17 sq ft in Garden Galleria project of the OP, situated in Section 106 Mohali. Thereafter complainants applied for the shop vide their application form dated 16.08.2010 along with an amount of Rs.2,25,000/- vide ICICI Bank cheque number 663499, duly accepted by the OP vide receipt number 000036 dated 16.08.2010" .

Before adverting to the submissions of complainants on the issue of locus standi, it would be useful to have a look on relevant provisions of the Consumer Protection Act, 1986 ( in short, the Act) Section 2 (b) of the Act defines the term "complainant" as under:

(b) "complainant" means-

(i) a consumer; or

(ii) any voluntary consumer association registered under the

Companies Act, 1956 (1of 1956)or under any other law for the time being in force; or

(iii) the Central Government or any State Government,

(iv) one or more consumers, where there are numerous consumers having the same interest;

(v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint;

5 . As the complaint has been filed by the individuals, namely, Sunil Kalra and Mrs Anshu Kalra it is clear that in order to be covered under the above noted definition of complainant, they are supposed to be the "consumer" as defined under section 2 (1) (d) of the Act.

The term "consumer" is defined under section 2 (1) (d) of the Act as under: (d) "consumer" means any person who-

(i) 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

(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;

On reading of the above, it is clear that consumer is a person who buys any goods or hires or avails of services for consideration whether paid or to be paid in future. Section itself provides an exception that if the goods bought or the services hired or availed are for commercial purpose, then the person would not be termed as "consumer" for the purpose of the Act.

The explanation to this section gives a restricted meaning to the term "commercial purpose "by providing that "commercial purpose" does not include use by a person of goods bought or services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.

We do not agree with the aforesaid contention. On a careful reading of the explanation to Section 2 (1) (d) of Act, it is clear that in order to take advantage of the explanation, the complainant is required to establish that the services availed by him were exclusively for the purpose of earning his livelihood by way of self-employment. In the instant case, it is clear from the complaint as also the agreement of the counsel for the petitioner that petitioner no. 1 was employed with MTS, which is a company dealing with internet services. Mr Sunil Kalra was relieved from the office of MTS on 30 th April 2013 and the said order was signed by the Head Corporate Centre HR Division, Human Resource Function for Sistema Shyam Teleservices Limited. MTS Sistema Shyam TeleServices Limited, doing business as Mobile TeleSystems India (MTS India) and is the Indian subsidiary of the Russian mobile operator MTS . He has admitted that on the date he has booked and was allotted the commercial space, i.e., on 16.08.2010, he was employed with the MTS and was earning his livelihood. He resigned from the job in the year 2013. As per his averments in his complaint he started his business of data card and allied services with the hope that he will get a shop at Garden Galleria for running his business in the year 2013. It is clear from this after resigning from the MTS on 04.04.2013 the petitioner and his wife (petitioner no. 2) started a business to earn profit. Since in 2010 the petitioner was already earning his livelihood from his employment with MTS it cannot be said that at the time of booking the commercial space solely for the purpose of earning his livelihood by self-employment. Further, from 2013, i.e., after his resignation he is already in business with his residence in Delhi. Thus, in our view, the explanation is of no help to the complainants and they are not consumers as envisaged under section 2 (1) (d) of the Act. As the complainants are not consumers, in view of Section 2 (1) (d) of the Act, they could not have maintained the consumer complaint. Thus, in our view, the complainants have no locus standi to file the consumer complaint. The lower Fora had erred in ignoring this aspect and treating the petitioners as consumers. The District Forum in their order dated 23.10.2015 with regard to whether the petitioners are consumers have observed as under: " The said letter and intention of the complainant no. 1 makes it amply clear that he is qualified and experienced to run the data card and allied services business as he has the competence and ability to start his own venture for earning livelihood. Therefore, the case of the complainants falls very well within the definition of Section 2 (1) (d) explanation of the Consumer Protection Act. The complainants having availed the services of the OP for consideration are consumers of the OP".

The State Commission in their order dated 31.05.2016 have given a non-speaking order on this aspect and merely stated as under: "We are of the considered opinion that the District Forum rightly observed that complainants fall under the definition of consumer Section 2 (1) (d) of the Act".

A coordinate Bench of this Commission in the case of Rohit Chaudhary and Ors vs M/s Vipul Ltd., (Consumer Complaint no. 276 of 2015) decided on 11 th May 2015 and in the case of Harish Kumar Kochar vs Gillcp Developers Pvt. Ltd. and Ors. (RP no. 2386 of 2011) decided on 27.01.2015, the facts of the case supra are squarely applicable to the case on hand.

In view of the discussion above, we dismiss the revision petition and set aside the orders of the Lower Fora and dismiss the complaint.