K.K. Bhardwaj vs Pradeep Jain & Anr

Deepa Sharma, Presiding Member

The present Appeal has been filed against the order dated 24.04.2018 whereby the complaint of the Appellant had been dismissed on the ground that she was not the consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986 ( in short, the Act) and that she had not come before the Commission with clean hands.

The brief facts of the case are that respondents are the builders and the Appellant / complainant ( hereinafter referred to as complainant) had booked a shop  No. D-18A, Ground Floor, admeasuring 250 sq. ft. in Mall Manhattan, Faridabad on 03.03.2013 and made total payment of Rs.17,00,585.75/- as per the construction linked payment plan.  She had alleged that she is a second buyer and shop was originally allotted to Mr. Amit Kumar Gupta and Mr. Mohit Kumar Gupta and after her purchase from them,  the respondent  had transferred the said shop in her name.  She received letter dated 07.09.2012 from the respondents asking her to take the possession of the shop.  On reaching the site, she found that entire mall was closed, there was no electricity and   no air conditioning / heating ventilation was functional.  Even no CCTV cameras were  functional and there was no fire alarms and fire sprinklers were also not functional.   As per the Builder Buyer Agreement, all these facilities were to be provided by the respondents.  When she refused to take the possession until the said facilities are provided, she was threatened with the cancellation of the allotment of the shop and forfeiture of her entire amount.  She was forced to take possession on 03.03.2013 and in the possession certificate it was clearly mentioned “ no electricity so AHU ( Air Handling Unit) not tested” and that the mall is totally closed. She also informed the respondent that due to lack of these facilities, she was unable to start her business.  No reply had been received to her despite her writing several letters and emails. She alleged unfair trade practice and filed the complaint.

3 Notice was sent to the respondent and counsel for the respondent appeared on 29.09.2015 but no written statement was filed within the stipulated period and the right of respondent to file written statement was closed and the said order was not challenged by the respondent.

Complainant led her evidence before the State Commission and the written submissions have been filed by both the parties and after hearing the parties, State Commission dismissed the complaint holding that complainant was not the consumer since she had not stated that she had booked the shop for earning livelihood and it was held that complainant had hired or availed services of the opposite party for commercial purpose.  It was also observed that she had not come before the  Commission with clean hands since she had not disclosed in the complaint that she had earlier filed the complaint before the District Forum being CC No. 1698 of 2009, whereby she had settled her claim with the opposite party vide settlement deed dated 27.04.2012.

Aggrieved by the said order of the State Commission, the present Appeal has been filed by the complainant.

I have heard the arguments of the learned counsel for the parties and have perused the file.  It is contended by counsel for the complainant that despite the fact that no written statement had been filed and no contention had been raised by the respondents that she was not a consumer and that in the affidavit in evidence, the complainant had clearly stated that she was going to run her business in the said shop and the fact that in the complaint she had clearly stated that said shop was to be used for self employment purpose, yet this un-contradicted statement of the complainant had been discarded by the State Commission and the findings had been given against her.  It is submitted that findings are perverse and had no basis.  It is further submitted that she had not concealed anything and had come before the Commission with clean hands as in her evidence she had clearly disclosed  about her previous litigation.

It is argued by counsel for the respondent that there is no illegality or infirmity in State Commission’s order.   The burden is squarely upon the complainant to prove that she had purchased the shop for her livelihood which she had failed to discharge and that is why her complaint had been dismissed.

I have given my thoughtful consideration to the rival contentions of the parties.

‘Consumer’ has been defined under section 2 ( 1) ( d) of the Act and it does not include a person who avails the services for any commercial purpose. No doubt, the shop is going to be used for commercial purpose but the explanation to Section 2 ( 1) ( d) clearly excludes such commercial purpose which had been for the purpose of earning livelihood by means  of self employment.  It is a fact that neither the averments in the complaint had been countered nor there is any contradictory testimony to the statement of the complainant since no written statement has been filed by the respondents and no testimony has been led.  The complainant in her affidavit in evidence had clearly stated that “ the complainant intended to use the said shop for self-employment purposes”.   She had contended that in para 7 of her complaint, “she had informed to the opposite party that she cannot start any business in the shop as mall is totally closed…………” and in the evidence she has so stated. From all these statements, it is clear that complainant had intended to start her business and if she was to start her business, naturally it is for her own livelihood. Simply because she had not uttered the word ‘livelihood’, does not make the buying of the shop commercial purpose in view of the fact that she has clearly deposed on oath that shop is for self employment purpose and this testimony of  her remains uncontradicted.

It is clear that State Commission had ignored the cogent testimony on record and has given findings which is totally based on conjectures and surmises.  In view of this, the impugned order is set aside and the matter is remanded back to the State Commission to decide it on merits.

Parties are directed to appear before the State Commission on 18.01.2023.

Nothing in this order shall affect the merit of the case.