Vinit Bahri & Anr vs M/s MGF Developments Ltd. & Anr

Heard Mr. Priyadarshi Chaitanyashil, Advocate, for the complainants, Ms. Sunanda Tulsyan, Advocate, for opposite party-1 and Mr. Pankaj Vivek, Advocate, for opposite party-2.

Vinit Bahri and Mrs. Sonia Bahri have filed above complaint for directing the opposite party to pay (i) Rs.15989994/- with interest @18% per annum; (ii) Rs.5000000/-, as compensation for mental agony and harassment; (iii) Rs.1500000/-, as compensation due to change of location of Tower-C; (iv) Rs.3561494/-, as excess amount realized towards fixture and fitting; (v) Rs.250000/- as the litigation costs; and (vi) any other relief which is deemed fit and proper in the facts of the case.

The complainants stated that the opposite parties were the companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite parties launched a group housing project, in the name of “The Villas” at village Sahraul, Sector-25, Gurgaon, in the year 2005 and made wide publicity of its facilities and amenities. The complainants inquired about the detail of the plan from the opposite parties, then one Rakesh Kaul, vide email dated 05.03.2005, informed that they would be allotted Unit-802, Tower-C, right facing lobby at the ground floor, having 13 floor and the ground floor on stilt. Believing upon the lucrative representations of the opposite parties, the complainants booked a flat in March, 2005 and deposited booking amount of Rs.1500000/-. The opposite parties allotted Unit No. VP-C/802, super area 3590 sq.ft. on 02.09.2005 and executed Flat Buyer’s Agreement in their favour on 12.06.2006. Annexure-III of the agreement provides payment plan as “construction link payment plan”. Clause-9.1 of the agreement provides for handing over within 36 months from the date of agreement with grace period of 90 days. Due date of possession expired in 11.09.2009. The opposite parties unilaterally changed the layout plan of Tower-C without any information to the buyers. The complainants received layout plan on 18.03.2019 and visited the site on 19.03.2009 and noticed for the first time that layout plan of Tower-C has been changed. The complainants, vide email dated 19.03.2019, demanded copies of master plan, flat layout plan and specifications of facilities and amenities and a meeting with the directors. The opposite parties fixed meeting on 23.04.2009, in which, they admitted change of layout plan of Tower-C. The complainants made timely payments of the instalments as per demand of the opposite parties. The opposite parties raised a demand of Rs.1082000/- on 06.09.2009, which was deposited under protest on 24.04.2009. The opposite parties, issued demand letter dated 29.10.2009 for Rs.1438540/-. The opposite parties through letter dated 22.01.2011, informed that possession was likely to be handed over by March, 2012. The opposite parties, issued demand letter dated 29.09.2011. The complainants, through letter dated 11.10.2011 raised their objection in respect of various illegal demands. The complainants filed CC/240/2011, before District Consumer Forum, Delhi. During pendency of the complaint, the opposite parties raised demand, vide letter dated 11.11.2014, with threatening to cancel the allotment in case of non-payment. The complainants deposited the amount, under protest and took possession on 08.01.2015. The opposite parties, vide letter dated 02.01.2015, invited objection against change of layout plan and issue of “occupation certificate”. The complainants filed their objection on 29.01.2015. However, Director, Town and Country Planning, Haryana issued “occupation certificate” on 14.08.2015. The complainants withdrew CC/240/2011 with liberty to file fresh complainant on 21.12.2016 and filed this complaint on 10.01.2017, alleging deficiency in service and unfair trade practice. The complainants challenge the demand of total Rs.3081894/- in the heads of EEDC, IDC, Service Tax, Interest Free Maintenance Security, Electrification charges, Storm water/Sewer/Water connection charges, Increased area, HVAT, Parking charges and Rs.480000/- towards deficiencies in fixtures and fittings as well as compensation for change in layout plan.

The opposite party-1 filed written reply on 30.05.2017, in which, booking of the flat on 03.07.2005, allotment of flat on 02.09.2005, execution of Flat Buyer’s Agreement dated 12.06.2006 and deposits made by the complainants, have not been denied. The opposite party stated that the payment plan was “construction link payment plan”. As the construction was delayed as instalments were demanded/deposited with delay and no prejudice has been caused. The opposite party-1 completed the construction of the tower and applied for issue of “occupation certificate” on 12.02.2013 and offered possession, vide letter dated 11.11.2014. In Final Statement of Account delay compensation of Rs.1210237/- was paid/adjusted per clause-9.7 of the agreement, which was unconditionally accepted. The complainants took possession of the flat on 08.01.2015. Development Licence was granted on 31.08.2005. The opposite parties applied for sanction of Layout Plan on 03.07.2005. Details as supplied through email dated 03.05.2005 were tentative, which has been clarified in Clauses-B(I) and 8.1 of the agreement and the complainants have agreed to accept any change as such they cannot raise this issue after substantial construction of the tower. Total area of 271.08 sq.ft. has been increased, the complainants are liable to pay for it. All the demands were according to the agreement. EEDC, IDC, were realized on pro-rata basis. Service tax was statutory liability. The opposite party has not committed any unfair trade practice. The complainants have purchased the flat for commercial purpose and not for their residence. After taking possession, they have let-out it to Mr. Sunil Raman since March, 2015 and thereafter executed registered lease deed dated 03.03.2016, in his favour. As such, the complainants are not consumer and the complainant is not maintainable and is liable to be dismissed on preliminary issue.

Opposite party-2 filed its separate written reply on 18.08.2017, in which, it has been stated that the project “The Villas” was handed over to M/s. MGF Developers Limited (opposite party-1) through settlement deed dated 19.12.2013 between them. M/s. MGF Developers Limited (opposite party-1) took all liabilities towards the said project through Indemnity Deed dated 09.03.2016 and absolved opposite party-2 from the liability. Other pleas as raised by opposite party-1 have been raised.

The complainants have filed Rejoinder Replies, Affidavit of Evidence of Vinit Bahri and documentary evidence. Opposite party-1 has filed Affidavit of Evidence of Biswanath Nayak and documentary evidence. Opposite party-2 has filed Affidavit of Evidence of Kamal Jeet Singh and documentary evidence. Opposite party-1 has filed Additional Affidavit of Evidence of Biswanath Nayak and documentary evidence through IA/6360/2022. All the parties have filed written arguments.

We have considered the arguments of the counsel for the parties and examined the record. The opposite parties have raised preliminary issue that the complainants are not consumer and the complaint is not maintainable. In paragraph-23 of CC/240/2011, the complainants had stated that if the apartment as promised was delivered well in time as per agreed schedule, in that case the complainants could have occupied the same or could have rented out the same in order to have some returns from their investments so made. The loss of rent so got after adjusting the expenses for this period could be not less than Rs.80000/- per month w.e.f. September, 2008 onward. In paragraph-18 of this complaint, the complainants have stated that the purpose of going in far this property was to have good location so that there can be good returns. On page 77 of the complaint, the complainants have filed a copy of the letter dated 15.09.2012 of Siddharth Chugh & Company, a Real Estate Broker, addressed to the complainants, from which, it is proved that the complainants were taking assistance of a broker for letting the flat in dispute. After taking possession, the complainants have let-out it to Mr. Sunil Raman since March, 2015 and thereafter executed registered lease deed dated 03.03.2016, in his favour. The complainants have their permanent residence at S-450, Greater Kailash II, New Delhi-110047. As such it is proved that the complainants have purchased this flat for letting it on rent and not for their own residence. Purpose of purchasing the flat in dispute was to generate profit, which is a commercial purpose, falling in exclusion clause of Section 2(1)(d).

The word “consumer” has been defined under Section 2 (1) (d) and word “service” has been defined under Section 2 (1) (o) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which are quoted below:-

Section-2 (1) (d).- “consumer” mean 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 and partly promised, or under any system of deferred payment, when such use is made with 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 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 such services for any commercial purpose;

Explanation.- For the purpose 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 livelihood by means of self employment.

Section 2(1) (o):- “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

The term “housing construction” has been added by Act No.50 of 1993, under Section-2(1) (o) of the Act. Earlier the Explanation was added by Act No. 50 of 1993 w.e.f. 18.06.1993 under Sction-2(1) (d) (i) of the Act. By Act No. 62 of 2002, w.e.f. 15.03.2003, Section-2(1) (d) (ii) was also amended and the term “but does not include a person who avails such services for any commercial purpose” has been added in it and the Explanation was placed in last. Scope of the expressions “commercial purpose” and the Explanation as well as “the purposes of earning livelihood by means of self-employment” came up for consideration before Supreme Court in relation to purchase of goods in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583. In which, it has been held that the Explanation was an exception to an exception. Expression “commercial purpose” has not been defined, as such, its dictionary meaning has to be taken into consideration. “Commerce” means financial transaction, especially buying and selling of merchandise on large scale. As in the Explanation, the purposes of earning livelihood by means of self-employment, has been excluded from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such buyer from the purview of the “consumer” so long as it is used by the buyer or his family members or with the help of one or two other persons. It is question of fact and has to be decided in each case independently. In this case, three generator sets were purchased for the purposes of the factory by the complainant and it was held that it was for commercial purpose.

A four Members Bench of this Commission in Synco Textiles Pvt. Ltd. Vs. Greaves Colton & Company Ltd., 1990 SCC OnLine NCDRC 3, held that the expression “for any commercial purpose” are wide enough to take in all cases, where goods are purchased for being used in any activity directly intended to generate profit. Going to the plain dictionary meaning of the words used in the definition section, the intension of the Parliament must be understood to be to exclude from the scope of the expression ‘consumer’ any person who buys goods for the purposes of their being used in any activity engaged on a large scale for the purposes of making profit. The Parliament wanted to exclude from the scope of the definition not merely persons who obtains goods for resale but also those who purchase goods with a view of using such goods for carrying on any activity on a large scale for the purposes of earning profit. This judgement has been approved in Laxmi Engineering’s case (supra).

Supreme Court in Shrikant G. Mantri Vs. Punjab National Bank, (2022) 5 SCC 42 and National Insurance Company Limited Vs. Harsolia Motors, 2023 SCC OnLine SC 409, held that wide meaning of the words “for any commercial purpose” it would mean that the goods purchased or services availed should be used in any activity directly intended to generate profit. This Commission in M/s. Grand Venezia Buyer’s Association Vs. M/s. Grand Venezia Commercial Towers Pvt. Ltd., 2017 SCC OnLine NCDRC 1644 and Sujeet Jain Vs. DB Realty Limited, 2022 SCC OnLine NCDRC 353, held that purchasing a property for letting for rent is commercial purpose.

ORDER

ln view of aforesaid discussion complaint is dismissed as not maintainable with liberty to approach appropriate forum for the required relieves.