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LUBNA PERVEZ & ANOTHER V/S M/S. VARDHMAN ESTATES & DEVELOPERS PVT. LTD., decided on Monday, November 13, 2017.
[ In the National Consumer Disputes Redressal Commission (NCDRC), Consumer Case No. 580 of 2017. ] 13/11/2017
Judge(s) : REKHA GUPTA, PRESIDING MEMBER
Advocate(s) : Complainants Andleeb Naqvi, Sunil Kumar Jha. Opposite
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    The complainants are the joint buyers/ purchasers of a constructed property of shop no. 20 on the ground floor in the project Vardhman Gallaria situated at plot no.26/1 Knowledge Park III Greater Noida Gautam Budh Nagar Uttar Pradesh. They have alleged that they were approached by the representatives of the opposite party upon learning that the complainants were looking to buy a shop in the vicinity of Delhi from where the complainants could start their own business. The complainants were advised to invest in Greater Noida as there were many business opportunities. Accordingly they visited the site concerned at Knowledge Park III in Greater Noida and saw the construction work in the project of Vardhman Galleria. After preliminary price negotiations between the complainants and the opposite party the complainants were given an additional allurement by the opposite that they would be paid substantial monetary amount by the opposite party each month and the amount deposited would increase with OP on payments made by the complainants. The opposite party would accordingly enhance the monthly monetary amount to the complainants. The said amount would continue to be paid by the opposite party by post-dated cheques till the possession of the booked shop was not legally handed over to the complainants. This additional monetary allurement convinced the complainants to book a shop with the opposite party. Accordingly a written builder-buyer agreement was executed between the complainants and the opposite party on 25th January 2010 for shop no. 20 in Vardhman Gallaria and the cost of which was Rs.59 32 720/-. As on 06.05.2011 the complainants had paid an amount of Rs.55 10 390/-. As per the agreement the opposite party monthly monetary return was Rs.55 104/- for the delayed possession. On 30.03.2015 the opposite party offered the possession subject to payment of balance amount. The complainants wanted that the balance amount be recalculated and did not take the possession of the shop thereafter the complaint was filed on 28th February 2017 with the following prayers:* Direct the opposite party (OP) to refund Rs.1 28 40 189/- inclusive of 18% simple interest per annum from the date of payments made to the OP as detailed earlier in paragraph no. 21 of the instant complaint;* Further direct the OP to pay Rs.12 61 105/- inclusive of 18% simple interest as monthly monetary amount as detailed in paragraph no. 13 of the instant complaint;* In addition to the above direction may also be given to the OP to pay further monetary compensation of Rs.5 00 000/- for mental torture cheating and harassment caused to the complainants on account of unfair trade practice and deficiency in service;* Award of Rs.1 00 000/- towards litigation cost; and* Grant such other and further reliefs as deemed fit and proper by this Commission in the interests of justice.2. I have heard the learned counsel for the complainant. When the learned counsel for the complainant was asked as to how the complainants were consumers the counsel for the complainant stated that the complainants were aged about 50 years and had booked the shop to earn their livelihood by starting business for the first time by means of self-employment. Counsel for the complainant was asked to file an affidavit regarding the annual income of the complainant from all sources.3. Complainant has filed two sets of affidavits. The first affidavit of Ms Lubna Pervez was filed on 17th April 2017. Affidavit of Ms Lubna Pervez complainant no.1 reads as under:* Lubna Pervez wife of Sheikh Pervez Hameed aged 51 years resident of A – 6 Friends Colony East New Delhi do hereby solemnly affirm and declare as under:* I am the first complainant in the instant complaint; as such I am competent to swear the present affidavit;* I booked shop no. 20 at Vardhman Galleria Knowledge Park III Greater Noida Gautam Budh Nagar UP exclusively for my self-employment to earn my livelihood as whatever little I earned in 2010 when I booked the shop was not sufficient for me. Being an M Phil in Psychology I wanted to do some respectable work for which I needed office space. As travel is of great interest to me I decided in 2010 to start travel business for my self-employment to earn my livelihood. Since where I am permanently residing with my husband is a residential colony I could not have and cannot operate from the said residential colony.* Major part of the funds for the said booking of the said shop were received from my parents and some funds have been taken from my husband Sheikh Pervez Hameed who because of legal necessity and requirement became the second purchaser in the said shop so as to avoid any legal obstacle in succession in future.* It is categorically stated that as of date I do not have any shop or commercial establishment anywhere in the country except the said shop which has not yet been delivered to me by the builder in-spite of making full payment. The said shop was booked in 2010 for the purpose of earning my livelihood in a regular and decent manner by way of self-employment. Whatever little I earned including rent from my apartment (approximately 1100 sq ft. ) in Dwarka New Delhi failed to make a moderate living for me because for some months the said apartment has remained vacant. A large portion of the amount earned out of rent is spent in the upkeep of the flat i.e. taxes ground rent. Etc. 4. The affidavit of Sheikh Pervez Hameed complainant no. 2 filed on 17th April 2017 reads as under:* I Sheikh Pervez Hameed son of Late S A Hameed aged about 56 years resident of A 6 Friends Colony East New Delhi do hereby solemnly affirm and declared as under:* I am the second complainant in the instant complaint as such I am competent to swear the present affidavit.* I state that the house A – 6 Friends Colony East New Delhi where I permanently reside with my wife Lubna Pervez was inherited by me from my parents who are no more. Apart from the said house I received money from my parents side whose share of ancestral property was sold in Jaipur Rajasthan.* Since my wife wanted to start her own business of tour operator and does not have her office of own. To deal with prospective customers for keeping her self-employed and earn a decent living she became the first purchaser in the said shop. Other than the said shop the possession of which has not been given as yet in-spite of entire payment being made there is no commercial space or property on my wife’s name. For the purpose of succession of immovable property at any future date in case any such situation arises I became the second purchaser of the said shop. The booking/ purchase of the said shop was primarily done from the money my wife received from her parents and for rest of the money I have supported her on the understanding that she would repay me once she starts earning from there.5. The second affidavit was filed on 24.07.2017 as a clarificatory affidavit of earlier affidavit. The second affidavit of Ms Lubna Pervez - complainant no. 1 reads as under;* I Lubna Pervez wife of Sheikh Pervez Hameed aged about 52 years resident of A – 6 Friends Colony East New Delhi do hereby solemnly affirm and declare as under:* I categorically state that this affidavit is in addition to my earlier affidavits. The earlier affidavit dated 17.04.2017 filed by me is a clarificatory in nature and not contradictory to my pleadings in complaint. Since I was purchasing an expensive shop no. 20 at Vardhman Galleria Knowledge Park III Greater Noida Gautam Budh Nagar UP for myself it was advised that it should be in the joint names to avoid legal complications in case of succession later on. That is how my husband became the second purchaser.* When I had booked the said shop my total yearly income from salary from Lubbsheez Consultant Pvt. Ltd. Co. and rent from my flat in Dwarka was Rs.3 32 091/-. Annexure C 1 isthe xerox copy of the income tax return filed by me for the period 2009 – 10 i.e. when the said shop was booked in January 2010. To augment my earning I decided to book the said shop so that I can personally work (for self-employment) from there my own business.6. The second affidavit of Mr Sheikh Pervez Hameed complainant no. 2 read as under:* I Sheikh Pervez Hameed son of late S A Hameed aged about 56 years resident of A – 6 Friends Colony East New Delhi do hereby solemnly affirm and declare as under.* That when the shop no. 20 at Vardhman Galleria Knowledge Park III Greater Noida Gautam Budh Nagar UP booked in January 2010 with opposite party my total yearly earning during 2009 – 2010 was Rs.3 66 574/-. This I earned as salary from Lubbsheez Consultant Pvt. Ltd. from my business Delhi Bread and Breakfast (Bnb). From D Certificate of registration for period 25.01.2017 to 24.01.2020 is Annexure C 2 I operate from my above referred residence; and bank interest only. Annexure C 2 is Xerox copy of my income tax return filed for the said period. Earlier the said Delhi Bread and Breakfast was in the name of my mother and I used to actively assist her in it. My mother Mrs Padma Hameed wife of late S A Hameed passed away in September 2011. From D Certificate of registration for period 05.03.2008 to 04.03.2011 is Annexure C -3* Even today my main source of earning is Delhi Bread and Breakfast and falling/ declining bank interest.7. Before disposing of the case I would like to advert to section 2 (d) of the Consumer Protection Act 1986 (‘in short ‘the Act’) which reads as under:(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 promŽised 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;8. The affidavit makes it very clear that both the complainant nos.1 and 2 were employed with Lubbsheez Consultant Pvt. Ltd. Co. at the time they booked the said shop. Complainant no.1 was also in receipt of rent from her flat in Dwarka. She had invested in the said shop to augment her earning by starting a travel agency. It is also evident from the affidavit of complainant no. 2 Sheikh Pervez Hameed apart from being employed on the date of booking of the shop at Vardhman Galleria was also in receipt of income from the his business with Delhi Bread and Breakfast from the year 2008 onwards and as such as both were employed and also were in receipt of other income. As such they do not come under the exception carved out under section 2 (d) of the Consumer Protection Act 1986 that “commercial purpose” and “does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment”.9. Further complainant no. 2 has lent his name for the transactions for legal purposes/ reasons and not to earn his livelihood by means of self-employment.10. In view of the affidavit given by both the complainants it is an admitted fact that they were already employed and also in receipt of income from business and rent at the time of booking the shop. The shop was booked not to earn their livelihood by means for self-employment but because complainant no.1 wanted to augment her income.11. In view of the above the complainants are not consumers as per section 2 (d) of the Consumer Protection Act 1986. Hence the present consumer complaint is not maintainable and the same is dismissed.