VIVEK AHUJA & ANR. vs M/S. VIPUL LIMITED

The present first appeal has been filed against the judgment dated 08.02.2017 of the Delhi State Consumer Disputes Redressal Commission, Delhi (''the State Commission'') in Consumer Complaint no. 85 of 2017.

The facts of the case as per the appellant/ complainant are that the appellant had booked a commercial space no. 201 measuring 97.73 sq meters in the Vipul World Commercial, Sector 48, Gurgaon, Haryana (''Unit'') with the respondent/ opposite party in March 2006. The appellant purchased the aforesaid unit from their predecessor in March 2008. Thereafter the appellants executed a buyer''s agreement directly with the respondent wherein it was agreed that possession of the unit would be given within 24 months of the date of agreement. The total cost of the unit was initially Rs.50,45,508/-. It was a construction linked plan and the complete payment was made. It was alleged that the Service Taxes, VAT, Swatch Bharat Cess, Krishi Kalyan Cess were also charged by the respondent. It was alleged that the appellants in total had paid Rs.58,51,007/- inclusive of the aforesaid taxes. The construction of the project continued at a tardy pace and could not be completed till November 2011. It was further alleged that from November 2011 to June 16, various correspondence were exchanged between the parties and the respondent kept on extending the date of handing over of possession as the project was not completed. Ultimately, on 06.06.2016 the possession of the unit was offered to the appellants.

It was alleged that there was delay in handing over the possession to the appellants. In case of delay on the part of consumer, the respondent had charged 18% interest on delayed payment. There was deficiency in service on the part of respondent in not delivering the possession within the agreed time. Appellants are entitled for interest at the same rate on the payment made by them to the respondent for the period of delay in handing over the possession. It was alleged that the deficiency in service of the respondent is further evidenced from the fact that additional amounts in terms of service tax, VAT and other cesses had been wrongly collected from the appellants. The respondent has blatantly defaulted in its obligations to hand over the possession in terms of Buyer''s Agreement. Further, the appellants were forced to sign documents giving up all their claims and were informed that the possession of the property would not be handed over without relinquishment of all claims against the respondent. The appellants have filed the present claim seeking directions to the respondents to pay amount under different heads as has been stated above.

The State Commission vide its order dated 08.02.2017 had dismissed the complaint while observing as under:

"5. Perusal of documents annexed with the complaint show that there is a letter dated 06.06.2016 of OP informing the complainants that commercial unit was ready for possession. Thereupon, complainants sent a letter dated 05.08.2016 raising the issue of service tax, vat etc., by the OPs upon the complainants and the same was also raised vide e-mail dated 22.08.2016. In the aforesaid correspondence complainants had also raised issue about payment of interest to them on the amount received by OP for delay in handing over the possession.

Perusal of record also shows that on 07.09.2016, the complainant had written a letter to the OP whereby they have withdrawn unconditionally all the letters/ e-mails written to the OP raising their protest. The aforesaid letter prima facie shows that complainants had taken possession from the OP on 07.09.2016. The correspondence on record shows that the complainants had also signed an undertaking at the time of taking the possession. After taking the possession unconditionally, the complainants had again sent e-mails dated 23.10.2016 and 19.11.2016 making allegations that OP had pressurised them for withdrawal of previous letters regarding compensation for delay it is alleged that complainants were forced to sign alleged undertaking. However, no such undertaking is placed on record. Prima facie there is nothing on record to substantiate that they were forced to withdraw the protest as has been alleged. The possession is delivered on 07.09.2016 whereas the e-mail is sent on 23.10.2016 making allegations against the OP. There is sufficient gap between the two. The same is an after-thought. Further, the unit booked is a commercial unit. There is no pleading that same was booked for the purpose of earning livelihood by means of self-employment. In these circumstances complainants can''t be said to be "Consumer" also within the meaning of the Act. The complaint is, therefore, not maintainable. Accordingly, the same stands dismissed at admission stage."

Hence, the present First Appeal.

I have heard the learned counsel for the appellant. Learned counsel for the appellant has contended that the State Commission did not appreciate the pleadings of the appellant and held that the unit was for commercial purpose. He drew my attention to the complaint wherein it has been pleaded as under:

" 1. Complainant no. 1 is a highly qualified salaried professional and the complainant no., 2 is the father of complainant no. 1 and a senior citizen.

b. On the basis of the above mentioned representations and assurances made by the opposite party, the complainant executed the Buyer''s Agreement with the opposite party for purchase of a unit for his personal use on 27.11.2009. The payment schedule was part of the said agreement."

On my query as to the details of employment/ services by the appellants, the learned counsel for the appellant on instruction has stated that the Appellant no. 1 is the Finance Manager with Keysight International India Pvt., Ltd., and Appellant no. 2 retired from the post of Section Officer, Employees State Insurance Corporation (ESIC). Learned counsel for the appellant has further stated that the appellant no. 1 after his retirement has planned to use the said property for his personal use.

The term consumer is defined under section 1 (1) (d) of the Consumer Protection act, 1986 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. "

Since, undisputedly the appellant had booked a commercial premises it cannot be denied that even if the allegations in the appeal are taken as gospel truth the services of the respondents were availed by the appellant for commercial purpose. Therefore, in view of the exception carved out in Section 2 (1) (d) the services having been availed for commercial purpose the appellant does not fall within the definition of "Consumer".

Learned counsel for the appellant has contended that the case of the appellant is covered in the explanation to Section 2 (1) (d) of the Consumer Protection Act, 1986. In support of this contention he has drawn my attention to the averment in the complaint that the appellant booked the aforesaid premises for personal use.

I do not find any merit in the contention of the Appellant. On reading of the explanation which gives restricted meaning to the term "Commercial Purpose" it is clear that the commercial purpose does not include the service availed by a person exclusively for earning livelihood by means of self-employment. Admittedly, the appellant no. 1 is presently gainfully employed. Therefore, it is clear that at the time of booking the commercial space also the appellant no. 1 was gainfully employed. Learned Counsel for the appellant has stated that he had booked the unit for personal use after retirement. No time frame has been given. At the time of booking the property, the appellant no. 1 was only 32 years old and the appellant no. 2 who is a retired employee of ESIC was about 69 years old. Therefore, the aforesaid vague averment in the complaint will not bring the case of the appellant within the ambit to Section 2 (1) (d) of the Consumer Protection Act, 1986.

In view of the discussion above, it is clear that the appellants have availed of the services of the respondent in relation to a commercial service. Therefore, the appellant is not covered under the definition of "Consumer", hence, the State Commission has correctly dismissed the complaint.

In view of the foregoing discussion, I do not find any cogent ground to interfere with the impugned order of the State Commission. The appeal is accordingly dismissed, leaving the parties to bear their own costs.