The present revision petition no. 125 of 2017 has been filed by the petitioner Davindra Nath Sethi against the order dated 03.11.2016 of the Delhi State Consumer Disputes Redressal Commission, Delhi (‘the State Commission’) in First Appeal no. 845 of 2014.
2. The brief facts of the case are that the petitioners/complainants had booked a 400 Sq. Ft. flatted Factory space on the first floor with the respondent/ OP and on 14.01.1996 the unit was allotted to the complainants @4,500/- per Sq. Ft. at a total cost of Rs.22,03,750/-. As per the payment schedule the complainants were to make quarterly payments of 5% of the price of unit in instalments which ultimately had to be concluded at the time of possession which was agreed to be given after expiry of 48 months i.e., by the year 2000.
3. Complainants have alleged that OP vide letter dated 03.02.1997 had informed the complainants that they could extend to them the benefit of up gradation from first floor to upper ground floor at the same rates, as were applicable at the time of receipt of application.
4. Complainants accepted the proposal of the OP for up gradation vide letter dated 28.02.1997 and also deposited a sum of Rs.1,80,000/- with the OP by way of cheque. Complainants stated that during the years 2001, 2002 and 2004 they had been repeatedly contacting the appellant/OP to provide the possession of the unit booked by them as the possession was to be given by the end of year 2000.
5. The complainants had alleged that the appellant/OP vide its letter dated 17.12.2008 apprised them that construction of the project was in full swing and that they had been provisionally allotted a unit in Plaza-4 and an additional demand of Rs.875 per sq. ft. was raised on them on account of centralized air condition and power back up. The complainants approached OP to withdraw the demand but the OP again raised demand vide its letter dated 08.01.2009 and threatened to charge interest @ 24% per annum on the delayed payment. Further, the OP also threatened the complainants to cancel the allotment in case the demand was not satisfied. Thereafter, the complainants had issued a legal notice dated 21.04.2009 upon the OP but to no effect. Hence, complainants filed a complaint before the District Consumer Disputes Redressal Forum (VIII) (Central District) Kashmere Gate (‘the District Forum’) being Case no. 720 of 2012.
6. The District Forum vide its order dated 09.07.2014 allowed the complaint with cost of Rs.10,000/- & directed OP to pay a sum of Rs.5,40,000/- (refund of amount deposited) along with interest @ 24% per annum plus compensation of Rs.1.00 lakh for agony.
7. The State Commission vide its order dated 03.11.2016 has allowed the appeal of the OP and dismissed the complaint by setting aside the order of District Forum.
8. Hence, present revision petition.
9. Heard the learned counsel for both the parties and perused the record. Learned counsel for the petitioner has stated that booking was made in the year 1996 and the possession was to be given in the year 2000, however, no possession was given till the filing of the complaint in the year 2009.
10. The matter pertains to cause of action which arose before the amendment of the Consumer Protection Act, 1986 in the year 2002. Thus, the issue of commercial purpose for deficiency in service in the availment of service is not to be seen. Moreover, the shop was being purchased for earning livelihood by means of self-employment and therefore, the complainant cannot be ousted from the provisions of Consumer Protection Act, 1986. Thus, the order passed by the State Commission is an illegal order and it should be set aside.
11. On the other hand, the learned counsel for the respondent/ opposite party has stated that the shop itself is a commercial premises and the same was booked by the complainant for commercial purpose as the profit was the only motive behind the purchase. The use for earning livelihood by self-employment has not been pleaded in the complaint and therefore, it cannot be said that the complainant booked the shop for earning livelihood by means of self-employment. Thus, the order of the State Commission is perfectly legal and valid.
12. The learned counsel for the respondent has referred to the judgment of this Commission in the case of Shri Inder Nath Mehra and Anr. Vs M/s Purearth Infrastructure Ltd., (Consumer Case no. 301 of 2013) decided on 15.05.2015 wherein, the petitioner has filed a complaint for the same project and against the same opposite party and this Commission has held that the complainants are not the consumer under section 2 (1) (d) of the Consumer Protection Act, 1986.
13. The learned counsel further referred to the judgment of this Commission in the case of Pardeep Singh Pahal vs M/s TDI Infrastructure Pvt. Ltd., (FA no. 1138 of 2014) decided on 21.09.2015 where this Commission has held that:
“By perusal of aforesaid pleadings and evidence of complainant, it becomes clear that complainant has not pleaded in the complaint that he got commercial unit allotted to be used by him exclusively for the purpose of earning his livelihood by means of self-employment. On objection taken by OP in its written statement, complainant in replica mentioned that he agreed to purchase commercial unit for earning his livelihood by means of self-employment which cannot be treated as averment made in the original complaint. Not only this, in affidavit evidence, he has nowhere mentioned that he purchased aforesaid unit for the purpose of earning his livelihood by means of self-employment and only mentioned that he purchased this unit for his own business. The question is merely by putting word “own business” whether purchase of commercial unit can be treated as purchase of unit to be used by himself exclusively for the purpose of earning his livelihood by means of self-employment. In the absence of specific pleadings and proof merely by mentioning that he purchased commercial unit for his own business it does not stand proved that he purchased commercial unit to be used by him exclusively for the purpose of earning his livelihood by means of self-employment”.
14. I have carefully considered the arguments advanced by the learned counsel for the parties and examined the record. The Hon’ble Supreme Court in the case of Paramount Digital Color Lab & Ors. etc., Vs. Afga India Pvt. Ltd. & Ors. etc. III (2018) CPJ 12 (SC) has observed the following:-
“13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that case. Whether the assistance of someone is required to handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a “commercial purpose” and not for “self-employment”, the complainant may not get the benefit of the Explanation to Section 2 (1)(d) of the Act. The buyers of the goods or commodities for “self-consumption” in economic activities in which they are engaged would be “consumers” as defined in the Act. Furthermore, there is nothing on record to show that the appellants wanted to use the machine in question for purposes other than “self-employment.
Therefore, the point to be considered is whether the appellants have purchased the machine in question for “commercial purpose” or exclusively for the purposes of earning their livelihood by means of “self-employment”. There cannot be any dispute that the initial burden is on the appellants to prove that they fall within the definition of “consumer”. It is pertinent to mention that respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion.”
15. On the basis of the above judgment, it is implied that even if the pleading to the effect that the purchase or availment of service has been made for earning livelihood by means of self-employment is not there, the same will be presumed until some other purpose or motive has been pleaded in the complaint or has been proved otherwise by the opposite party.
16. The Hon’ble Supreme Court in the case of Sunil Kohli and Anr. Vs M/s Purearth Infrastructure Ltd., (civil appeal nos. 9004-9005 of 2018) decided on 01.10.2019 has dealt with similar question where the commercial space was purchased by a NRI complainant and this Commission had dismissed the complaint, however, the Hon’ble Supreme Court has reversed the order of this Commission and the complainant has been declared as a consumer.
17. Based on the above two authoritative judgments of the Hon’ble Supreme Court, there is no doubt that the complainant would be deemed to be consumer under the Consumer Protection Act, 1986. Thus, the impugned order of the State Commission is not found to be sustainable.
18. So far as the merit of the revision petition is concerned, it is seen that the District Forum has allowed the refund of the amount of Rs.5,40,000/- along with interest @ 24% per annum and compensation of Rs.1.00 lakh for mental agony. It is seen that interest of 24% per annum is excessively high and this Commission and the Hon’ble Supreme Court are not awarding such high interest on the refund of the deposited amount. The Hon’ble Supreme Court in the case of Kolkata West International City Pvt. Ltd., vs Devasis Rudra – Civil Appeal no.3182 of 2019 – 2019 SCC online SC 438 decided on 25.03.2019, has reduced the interest rate from 12% per annum awarded by this Commission
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to 9% per annum on the refund amount. Accordingly, I deem it appropriate to allow the refund along with interest @ 9% per annum from the date of respective deposits. 19. Based on the above discussion, the revision petition no.125 of 2017 is partly allowed and the order of the State Commission dated 03.11.2016 is set aside. The order of the District Forum dated 09.07.2014 is modified to the extent that interest on the amount of refund of Rs.5,40,000/- will be @ 9% per annum from the date of respective deposits till the actual payment instead of interest @ 24% per annum. As the interest is being paid on the amount of refund, there seems to be no justification for separate compensation of Rs.1,00,000/-. Hence, the order of the District Forum for award of compensation of Rs.1,00,000/- is set aside. However, the cost of Rs.10,000/- is maintained. Now this order be complied by the respondent opposite party within a period of 45 days from the date of receipt/ service of this order, failing which additional interest @ 3% per annum will be payable from the date of this order till actual payment.