KRISHNA MALHOTRA vs BAJWA DEVELOPERS LIMITED

Counsel for the parties heard. The only question which falls for consideration is whether the shop in question was purchased for commercial purpose or for self- employment?

The case of the petitioner / complainant Smt. Krishna Malhotra is that the Bajwa Developers Ltd., i.e. opposite party entered into the agreement with her dated 18.01.2012 Ex. C1, wherein she was allotted booth No. 421 (Ivy market) E10, S 123, Jandpur. The complainant paid initial amount of Rs. 06,12,500/- through four cheques dated 23.12.2011. It was agreed that the booth would be handed over to the complainant on 25.08.2012 on which date the balance amount of Rs. 18,36,000/- was to be paid. The complainant also deposited Rs. 03,90,000/- through cheque towards part payment of the booth on 15.11.2012 as per the demand made by the opposite party.

The grievance of the complainant is that the booth in question was not given to her. In October, 2013 the opposite party informed her that it had abandoned the plan of constructing Ivy market. That plan had failed. The OP paid back Rs. 09,62,500/- to the petitioner by arbitrarily

deducting Rs. 39,500/- from the payment made by the complainant. The complainant filed the complaint with the request that the amount of Rs. 10,02,000 be returned with interest @ 18% and she also be paid Rs. 1,00,000/- for compensation and Rs. 50,000/- as costs of litigation.

The principal objection raised by the respondent was that she was purchasing this booth for commercial purposes. However, the respondent as well as his counsel Sh. Karan Dewan admits that the said project had failed. Both fora came to the conclusion that it was for commercial purpose and District Forum ordered that a sum of Rs. 39,500/- be paid back to the respondent with interest @ 9% and compensation in the sum of Rs. 20,000/-. The State Commission set aside the entire complaint including the relief given by the District Forum.

We have heard the counsel for the parties. The Ld. Counsel for the respondent has invited our attention towards Para 6 of judgment tilted as Cheema Engineering Services Vs. Rajan Singh 1997 (1) S.C.C. 131. The relevant portion runs as under: "Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but "merely earning livelihood in commercial business", does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. ''He'' includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many are matters of evidence. The burden is on the respondent to prove them."

We are of the considered view that this authority is not applicable to the present case. In that case the respondent was running the factory i.e. brick kiln and the number of persons were required to run that kiln. This case can be differentiated by the fact that the petitioner is to run the Boutique. She has filed affidavit that she is doing this business herself since 1995. She is the main worker in this business. There is no bar if she employs 1- 4 persons for supporting her. In her complaint, she has clearly, specifically and unequivocally mentioned: "that the complainant had applied for allotment of Booth in the IVY market being developed by the opposite party to be used by her for earning her livelihood by way of running a boutique. Complainant was allotted plot (Booth) no. 421 (Ivy Market) E 10, S 123 Jandpur. Thus the complainant is a consumer as defined in the Consumer Act." This position was further made clear in the case of Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583.

Consequently, we hereby accept the Revision Petition. The petitioner has already got the entire principal amount in the sum of Rs. 10,02,000/- minus Rs. 39,500/-. The respondent is long in promises but short in performances. The respondent does not understand what is meant by the essence of time. His counsel submits that the plan has failed. It is just like mocking the justice. The respondent has acted in a happy go lucky manner. He has adopted a Fabian / dilatory policy. He has used the hard earned amount of the lady for such a long time.

Consequently, we hereby direct that the respondent to pay Rs. 39,500/- and also pay interest on the entire amount @ 18% from the date of its deposit till the payment is made. We further impose cost of Rs. 50,000/- as per the Law laid down in K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012. The said amount be paid within 90 days from today. Otherwise, it will carry interest @ 18% on both the counts. The matter is hereby disposed of.