STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB DAKSHIN MARG, SECTOR 37-A, CHANDIGARH. Consumer Complaint No.174 of 2016 Date of institution : 07.06.2016 Date of decision : 14.06.2016 Kusum Kapoor W/o Narender Kapoor, aged 72 years, resident of 29- 30, Josan Colony, Ajnala Road, Amritsar (Punjab). .Complainant Versus M/s Spirit Infratech Pvt. Ltd., through its Managing Director, Blessings Amritsar, adjoining Hotel Radisson Blu, 1 Airport Road, Amritsar Blessing Hotel Complex, Ajnala Road, Amritsar. Registered Office: 2426/11 Beadonpura Gurdwara Road, Karol Bag, New Delhi-110005 (earlier at: A-21, Janpath, New Delhi Pin-110001); Corporate Office: 10th Floor, Tower-D, Global Business Park, MG Road, Gurgaon, Haryana. .Opposite Party Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986. Quorum:- Honble Mr. Justice Gurdev Singh, President Mr. Vinod Kumar Gupta, Member Present:- For the complainant : Shri Tribhuvan Dahiya, Advocate JUSTICE GURDEV SINGH, PRESIDENT : The complainant, Kusum Kapoor, has filed this complaint, under Section 17(1) (a) (i) of the Consumer Protection Act, 1986 (in short, the Act), for the issuance of following directions to the opposite party: Consumer Complaint No.174 of 2016
i) to refund the amount of Rs.40,50,000/-, along with interest at the rate of 18% per annum from the date of deposit till the actual payment; ii) to pay the arrears of Advance Monthly Rental and Minimum Guaranteed Amount at the rate of Rs.37,500/-, per month, along with interest at the rate of 18% per annum with effect from April, 2013 till the date of the refund of the above said amount; iii) to pay Rs.5,00,000/-, as compensation for its failure to commence commercial operation of the Hotel Complex; iv) to pay Rs.5,00,000/-, as compensation for the mental tension, agony and harassment suffered by her; and
v) to pay Rs.75,000/-, as litigation expenses. The complainant alleged, in the complaint, that she is a housewife and she, along with her daughter, Ms. Divya Kapoor, entered into Memorandum of Understanding (in short, the MoU) with the opposite party on 31.01.2011 for the allotment of one bedroom unit in the proposed Hotel Complex, to be known as Blessings, situated at Ajnala Road, Amritsar, fully detailed in Para No.1 of the complaint (hereinafter referred to as the unit); which was to be promoted by it. That MoU was entered on the basis of the application for allotment submitted by her, along with advance money of Rs.2,00,000/-, vide demand draft dated 26.06.2010. As per the MoU, the unit was allotted to her and her daughter, jointly, and she is also the General Power of Attorney holder of her daughter, in respect of this unit and Consumer Complaint No.174 of 2016 other properties. The total consideration of the unit was Rs.40,50,000/- and at the time of the execution of the MoU, she paid Rs.25,00,000/-, as consideration, by way of cheques bearing Nos.630275 and 630276 dated 06.04.2011. The balance amount of Rs.13,50,000/- was paid in cash on 17.05.2012. As per the terms of the MoU, the opposite party agreed to pay the advance rental/return of Rs.37,500/-, per month, for the first 36 months of the date of the execution thereof till the commencement of the business. It further agreed that in the event of any delay in the start of the commercial operation of the Hotel Complex, it shall pay Minimum Guaranteed Amount of Rs.1,12,500/-, per quarter, for this unit. The possession of the unit was to be delivered within three years from the date of start of the construction of the project. The agreed amounts were paid to her and her daughter, through cheques and the details thereof are given in Para No.6 of the complaint. After 15.03.2013, the opposite party stopped making payment of the advance rental to her; upon which she tried to contact it, through its representative, Mr. N.K. Bajaj, but of no avail. Thereafter, she sent e-mails dated 10.06.2014 and 30.06.2014, requesting it to pay the advance rental, but nothing was paid. To her knowledge, the commercial operation of the Hotel Complex has not started and by virtue of Clause-8 of the MoU, the opposite party is liable to pay the Minimum Guaranteed Amount of Rs.1,12,500/-, per quarter, for the unit, in question, until the commencement of the commercial operation. She is a senior citizen and invested her hard earned money into the Hotel Complex, on the assurance given by the opposite party, but it failed to develop that Consumer Complaint No.174 of 2016 complex and to start the commercial operation. All these acts on its part amount to cheating and playing of fraud. Her amount has been mis-appropriated; which has caused mental agony, harassment and humiliation to her. These acts, which are illegal and arbitrary, also amount to deficiency in service.
2. We have heard learned counsel for the complainant and have carefully gone through the allegations made in the complaint and the documents annexed therewith.
3. Having confronted with the fact that the unit, in dispute, was a part of the commercial project (Hotel) and, as such, the complainant does not fall under the definition of the consumer, as contained in the Act, her counsel cited the judgment of the Honble Supreme Court, reported in 2014 AIR (Supreme Court) 3670 (Punjab University Vs. Unit Trust of India & Ors.). He submitted that even if the complainant invested in the Hotel Complex, which is a commercial purpose, even then she falls under the definition of the consumer; as she invested her hard earned money for earning the rental.
4. The facts in Punjab Universitys case (supra) were altogether different. In that case, the amount was invested by the University with reinvestment option of the dividend with UTI on March 31, 1998 and the scheme of the UTI guaranteed protection of original capital and assured a return of 16% per annum, payable half yearly. Thereafter, further investment was made in the other scheme, floated by the UTI, and as per that scheme, the dividend was payable on maturity and minimum interest at the rate of 13.5% per annum was Consumer Complaint No.174 of 2016 assured. The question arose, whether in respect of these investments, the University can be termed as consumer, as per the definition contained in the Act. While deciding that question, the Honble Supreme Court recorded its finding, as to what is a commercial purpose for the purposes of that definition. It was held that the commercial purpose would cover an undertaking, the object of which is to make profit out of the undertakings. The investment, so made by the University, was not held to be a commercial activity in the peculiar circumstances of that case; by making observation that the services of UTI were availed for the betterment of the employees, by making the investment and no benefit, by way of profit, was to accrue to the University; thereby improving its balance-sheet, in view of the definition of the word commerce and under those circumstances, the University cannot be said to be indulging in any commercial activity, thus excluding itself from the definition of the consumer. It was further made clear that the intent of the Universities in the dispute was not profiteering and the same was for benevolent interest and there is no intention whatsoever that the investment was made for commercial purpose or gain.
5. The facts of the present case cannot be equated with the facts of that case. It is very much clear from the allegations made in the complaint itself that the complainant invested in a commercial property for making profit and when such is the case, she cannot be termed as a consumer.
6. Therefore, this complaint is not maintainable before this Commission and is dismissed as such, without prejudice to the rights Consumer Complaint No.174 of 2016 of the complainant to approach the appropriate Court/Forum; in respect of the cause of action, which forms the subject matter of the present complaint. (JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER June 14, 2016. (Gurmeet S)