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Judgment
The present Revision Petition has been filed by the Petitioners against order dated 30.05.2017 passed by Delhi State Consumer Disputes Redressal Commission (for short “the State Commission”) in Appeal No.746/2014.
The case of the Petitioners/Complainants is that they booked an office spaces with the Respondent/Opposite Party in the project “the Byron” in Gurgaon by paying full consideration of Rs.15,00,000/-, vide MOU dated 12.06.2013. As the Complainant was living in New Zealand, he submitted the filled form through the broker. The broker had made error in the form by mentioning that 50% amount had been paid instead of 100% payment. It was also wrongly mentioned in the form that the Complainants had booked two office spaces. After returning from New Zealand the Complainant got the error rectified and withdrew the earlier MOU and a new MOU was signed. Possession was to be given within two years. As per the MOU, the Opposite Party was to pay assured return of 12% to the persons, who made 100% payment and 11% return to persons who made part payment. As per MOU, the Opposite Party paid 11% return instead of 12%. Due to delay in delivery of possession, the Complainants requested the Opposite Party to refund the amount with interest. The Opposite Party informed the Complainants that they would refund the amount within two months, which they failed to do. Alleging deficiency in service on the part of the Opposite Party, Complainant No.1 filed Consumer Complaint before the District Forum with following prayer: -
“i) direct the opposite parties to apologize for all the inconvenience caused to the Complainant;
ii) direct the opposite parties to make up for the mistake by immediately refunding the amount of Rs.15,00,000/- paid for the booking of the plot plus unpaid accrued assured returns w.e.f. 01.04.2013 to the date of settlement AND necessary documentation showing the time when they deposited the S. Tax of Rs.39000 taken from the Complainant as to facilitate plus differential of 1% assured return - paid 11% due 12% as paid to others- at the earliest; The total till July 2013 end will be Rs.1500000 + Rs.12375 after TDS x 4 = 49500 assured returns @ 11% + Rs.21375 by way of differential between 12% due and 11% paid = Total Rs.15,70,875, till July 2013 + S.T.39 K.
iii) direct the Opposite Party to pay a sum of Rs.200000/- as damages towards the stress, efforts on containing mental agony suffered by the Complainant; and
iv) direct the Opposite Party to pay a sum of Rs.1,000/- towards cost of this petition;
v) kindly settle the matter latest by end of October, 2013 AS THE COMPLAINANT HAS TO TRAVEL TO NEW ZEALAND BY 1ST WEEK OF NOV. 2013 FOR 6-7 MONTHS, A TIME STIPULATION NECESSARY FOR HIS IMPENDING I.P. Residency there.
vi) pass any such orders and reliefs deemed fit and proper for this Hon’ble Forum in view of the facts and circumstances of this case.”
The Complaint was contested by the Opposite Party by filing the written statement on the ground that the Consumer Complaint was not maintainable under Section 12 of the Consumer Protection Act, 1986. It was also stated that the dispute arose out of MOU dated 05.06.2012, which was amenable to arbitration clause 27 of the MOU. The Consumer Complaint was, therefore, not maintainable.
On merits, it was stated that the office space was booked in the name of the Complainant and his wife. The Opposite Party denied that 12% return was payable to the persons who made full payment. As per clause 4 of MOU, the Complainant was entitled to assured return of Rs.55/- per square feet per month, after TDS deduction, which amounted to Rs.12,375/- per month. The Opposite Party was making the said payment as per entitlement of the Complainant. In the letter dated 12.06.2013 the Complainants had stated that they wanted to cancel the allotment “due to some unavoidable circumstances” and not due to delay in delivery of possession.
After hearing the learned Counsel for the Parties and perusing the record, the District Forum partly allowed the Complaint, vide order dated 31.05.2014, which reads as follows: -
“In view of the above, we partially allowed the complaint and direct the OP to refund the sum of Rs.15,00,000/- (Rs. Fifteen lakhs) to the complainant and his wife Smt. Pushpa Rastogi with the assured return at the rate of Rs.55/- per square feet of 250 sq. ft. of office space amounting to Rs.12,375/- (Rs. Twelve Thousand Three Hundred Seventy Five) after the TDS to the complainant and his with effect from 1/4/2013 till today. In case S. Tax Rs.39,000/- is refundable as per rules of concerned department, the OP shall either pay Rs.39,000/- to complainant and his who shall give no objection for refund of OP, if needed for withdrawal of amount from department concerned. In the alternative OP shall give no objection/letter of authority to complainant and his wife for getting refund of said amount of S. Tax of Rs.39,000/- themselves from concerned department. We further direct the OP to pay the compensation and litigation cost in the sum of Rs.50,000/- (Rs. Fifty Thousand) to the complainant and his wife Smt. Pushpa Rastogi. In case the said principal amount, assured return and the compensation including litigation cost is not paid to the complainant and his wife within a period of one month from date of receipt of this order the same shall be recoverable by them, alongwith simple interest at the rate of 12% per annum from the date of this order till recovery of the said amount. The complainant file amended memo of parties and letter of authority from his wife.”
Aggrieved by the order of the District Forum, the Opposite Party preferred First Appeal No.746/2014 before the State Commission. The State Commission, vide impugned order dated 30.05.2017 allowed the Appeal, set aside the order of the District Forum and dismissed the Complaint as not maintainable, with liberty to the Complainant to seek redressal of his grievances by approaching appropriate Forum in accordance with law.
Aggrieved by the impugned order dated 30.05.2017, the Complainants have filed the instant Revision Petition.
Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Petitioners submitted that the State Commission failed to appreciate that the Complainant had booked the office space for subsistence in his old age. He submitted that the Complainant was a “Consumer” in view of explanation to Section 2 (1) (d) of the Consumer Protection Act, 1986 as he booked the office space for the purpose of earning his livelihood. The State Commission failed to consider that in the affidavit evidence, the Complainant had clearly stated that he booked the office space for his livelihood. This fact was also mentioned in clause 2 of the MOU dated 05.06.2012 and was rightly appreciated by the District Forum. The Complainants have paid consideration of Rs.15 lakhs to the Opposite Party. They are, thus, “Consumers” qua the Opposite Party. State Commission also failed to appreciate that the Opposite Party had not even laid the foundation stone of the project and allured the Complainants to make payment in one go. The Opposite Party paid the assured returns of Rs.12,375/- from April, 2012 to March, 2013 only. Thereafter payment was stopped in violation of the terms and conditions of the MOU.
Learned Counsel for the Respondent submitted that nowhere in the Complaint it was stated that the Complainants had booked the office space for earning livelihood. As the Complainants had booked the office space for commercial purpose, they were not “Consumers” under Section 2 (1) (d) of the Consumer Protection Act, 1986. The Consumer Complaint before the District Forum was not maintainable. The State Commission rightly set aside the order of the District Forum and dismissed the Complaint as not maintainable.
On merits, the Opposite Party admitted that the Complainants made payment of Rs.15 lakhs. It was also admitted that MOU dated 13.10.2011 was cancelled and in lieu thereof MOU dated 05.06.2012 was executed. It was also submitted that there was no provision for assured return of 11% in case of part payment and 12% return in case of 100% payment. As per MOU, the Complainants were entitled to assured return of Rs.55/- per square feet per month after TDS deduction, amounting to Rs.12,375/-. The Opposite Party was making this payment to the Complainants. Learned Counsel further submitted that the Complainants had not cancelled the allotment due to delay in delivery of possession. In the cancellation letter dated 12.06.2013, the Complainants had stated that they wanted to cancel the allotment “due to some unavoidable circumstances.” The State Commission appreciated the facts in correct perspective and rightly dismissed the Complaint as not maintainable. The Revision is, therefore, liable to be dismissed.
Facts of the case are that the Complainants/Respondents booked an office space with the Respondent/Opposite Party in the project “the Byron” in Gurgaon by paying consideration of Rs.15,00,000/-. The broker made error in the form by mentioning that 50% amount had been paid instead of 100% payment. It was also wrongly mentioned in the form that the Complainants had booked two office spaces. After returning from New Zealand the Complainant got the error rectified and withdrew the earlier MOU and a new MOU was signed. Possession was to be given within two years. Due to delay in delivery of possession, the Complainants requested the Opposite Party to refund the amount with interest.
The main issue is whether the Complainants are “Consumers” or not. In this regard, Section 2 (1) (d) of the Consumer Protection Act, 1986 is relevant, which reads as follows: -
“(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”
Bare reading of the above, makes it clear that the Consumer is a person who buys any goods or hires or avails of any services for consideration but does not include a person who buys goods or hires or avails or services for any commercial purpose. The Complainants state that they booked the office space for earning their livelihood. In Clause 2 of the MOU dated 05.06.2012 it is mentioned that the allottee agree to purchase on investment return plan. Clause 2 reads as follows: -
“That the Developer hereby agrees to allot to the Allottee(s) and the Allottee(s) agrees to purchase on investment return plan, the Space admeasuring a super area of 250 sq. ft. approximately in the Said Project (hereinafter referred to as the ‘Said Unit’) subject to confirmation of area on completion of the Said Project, at basic rate of Rs.6000 per sq. ft. of super area aggregating to a total basic consideration of Rs.15,00,000/- (Rupees Fifteen lacs only). The final area so allotted/sold may vary by about 10% of the area agreed herein to be allotted. Correspondingly the consideration amount shall also increase or decrease, as the case may be. The Allottee(s) agrees to accept the method of calculation of super area, covered area and common a rea and the same shall be binding on both the parties.”
From the above, it is clear that the Complainants had purchased the office space on investment return plan. Moreover, in the Complaint there is no mention that the Complainants booked the office space for the purpose of earning their livelihood by means of self-employment. The State Commission observed as follows: -
“Nowhere in the complaint, the respondent/complaint has pleaded that he had booked an office space for earning his livelihood. On perusal of averments in the complaint, it becomes clear that the respondent/complainant has not pleaded in the complaint that he had booked the office space for using the same exclusively for the purpose of earning his livelihood by means of self-employment. In the affidavit evidence he has nowhere mentioned that he had purchased aforesaid office space for the sole purpose of earning his livelihood. There is nothing on record to show that the said office space was purchased by the respondent/complainant exclusively for earning his livelihood by means of self employment.”
In view of the above, we find that the Complainants failed to establish that they purchased the office space for the purpose of earning their livelihood by means of self-employment. The case of the Complainants does not fall under explanation to Section 2 (1) (d) of the Consumer Protection Act, 1986. The State Commission, thus, rightly dismissed the Complaint holding that the Complainants are not Consumers. Petitioners failed to point out any illegality or irregularity in the impugned order. The Revision Petition is accordingly dismissed.