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Judgment
The complainants / appellants booked a commercial shop with the respondent in a project namely “EUROPARKâ€, which the respondent was
to construct on a plot No.39, site No. 4, N.H. 24, Madan Mohan Malviya Nagar Marg, Sahibabad, UP. A shop admeasuring 855 sq. ft. was allotted to
them for a consideration of Rs.42,75,000/-. The possession of the shop having not been delivered to them, the appellants / complainants approached
the concerned State Commission by way of a consumer complaint, seeking possession of the said shop alongwith compensation. The State
Commission dismissed the complaint on the ground that the appellants were not a consumer within the meaning of Consumer Protection Act.
The learned counsel for the appellants / complainants has drawn my attention to Para-1 of the consumer complaint where it was specifically alleged
by the complainants / appellants that they had booked a shop to earn their livelihood by means of self-employment. However, what is more important
is the terms and conditions of the Memorandum of Understanding executed between the parties on 22.12.20012. The aforesaid MOU, to the extent it
is relevant, reads as under:
“The SIPL assures a monthly return of approx. Rs.118/- per sq. ft. or Rs.1,00,890/-subject to taxes as applicable, per month on the super area
being purchased by the intending allottee. The WIPL shall continue to pay a monthly return of approx. Rs.118/-per sq. ft. or Rs.1,00,890/- subject to
taxes as applicable, per month on super area basis of the premises from the date of 16.11.2012. (Hereinafter specified as return commencement date)
until such time the said premise has been handed over to the prospective intending sub-lessee for fit out. The guaranteed return as aforesaid would be
paid by the WIPL to the Intending Allottee at on or before tenth day of each English calendar month for the respective calendar month.
The WIPL shall cause the said shop to be leased out. The intending allottee hereby irrevocably authorizes the WIPL to lease out the said shop on its
behalf. The WIPL before finalizing the lease for the said shop shall inform in writing the intending allottee with regard to the terms and conditions of
lease as proposed to the intending sub-lessee. The intending allottee shall not be entitled to lease the said shop directly without the consent of the
WIPL, the terms and conditions of lease negotiated by the WIPL as aforesaid, shall be subject to minimum return of Rs.118/- per sq. ft. and with the
consent of the intending allottee. In the event, the intending allottee obstructs or neglects or defaults in sign the necessary documents of lease after it
has been finalized by the WIPL with the intending sub-lessee, then the WIPL shall have no liability or obligation under this transaction, in particular,
the guaranteed returns as specified herein without perjure to the leasing as held by the WIPL.
That the proportionate common maintenance charges will be paid by all the tenant(s) as per rate determined by Maintenance Agency nominated by
the first party. It is categorically agreed and understood between the parties here to that WIPL shall continue to pay an interest on the money as
received from the second party until such time the said premise has been handed over to the prospective intending sub-lessee for fit out if the said
shop is leased out at a gross monthly rental of less than approx.. Rs.118/-per sq. ft. or Rs.1,00,890/- subject to taxes as applicable, on the super area
given herein above then the WIPL agrees that the differential rental shall be capitalized @ 10%. The amount so capitalized would be refunded by the
WIPL to the intending allottee within a period of sixty days. In case of profit from lease same shall be shared 50:50 by the first party i.e. WIPL and
intending allottee i.e. second party.
If the said shop is leased out at a gross monthly rental of more than approx.. Rs.118/- per sq. ft. or Rs.1,00,890/- subject to taxes as applicable, on the
super area basis, then the WIPL agrees that the differential rental shall be capitalized@ 10%. The 50% of the amount so capitalized shall be paid by
the intending allottee to the WIPL within a period of sixty days from the date of a cll for differential amount for the WIPL otherwise the same rental
would be kept by the first party i.e. WIPL.
The second party cannot further create sub-lease/sublet the said shop without written consent of WIPL additionally the first party will have the right
of first refusal incase the second party would like to sub-lease the area to any third party prior to the call for possession.â€
It is therefore evident that not only the appellants were to get assured monthly return of Rs.118/- per sq. ft., they had given an irrevocable authority
to the respondent to lease out the aforesaid shop. The appellants were in fact, precluded even from leasing out the said shop to a person of their
choice. I fail to appreciate how the shop could have been used by the appellants/complainants for earning their livelihood by way of self-employment if
the builder was given an irrevocable authorization to lease out the same, entitling the complainants / appellants only to the assured monthly return
specified in the Memorandum of Understanding.
Obviously, the shop was booked by the complainants for making profit by leasing out the same to a tenant of the choice of the respondent and they
were to be satisfied with the assured monthly return stipulated in the Memorandum of Understanding. Such a person, in my opinion cannot be said to
be a consumer, he having made the booking for a commercial purpose. The view taken by the State Commission therefore does not call for any
interference by this Commission in exercise of its appellate jurisdiction. The appeal is therefore dismissed.