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Shweta Sharma v. Bptp Ltd.
Case Summary: NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION — First Appeal No. 1648 of 2017
Factual and Procedural Background
The appellant (Shweta Sharma) booked shop no. OF-17 A (478 sq. ft.) from the respondent (M/s BPTP Ltd.) on 24.07.2008 for a total consideration of Rs.16,96,900/-, making an initial payment of Rs.1,69,690/-. An allotment letter dated 20.08.2008 stated that possession would be delivered within 36 months. The appellant deposited the entire consideration within ten months of allotment but did not receive possession.
The appellant filed a complaint (CC No. 29 of 2015 before the Haryana State Consumer Disputes Redressal Commission) seeking either execution/registration of the sale deed and delivery of possession or, alternatively, a refund of the amount paid with interest @ 24% p.a., compensation for delay in handing over possession, refunds of various charges allegedly demanded illegally (enhanced external development charges, electricity connection charges, power back-up charges) with interest @ 24% p.a., and Rs.20,00,000/- as compensation for harassment and mental agony.
The respondent admitted allotment but alleged the appellant had not fulfilled conditions required for possession and execution of sale deed; possession was offered in February 2014 but the appellant did not execute the relevant documents. The State Commission dismissed the complaint by order dated 07.04.2017 on the ground that the complainant was not shown to be a "consumer" under the Consumer Protection Act because she had not proved that the shop was booked exclusively for earning her livelihood. The appellant appealed to the National Consumer Disputes Redressal Commission (this appeal dated 16 Nov 2017).
Legal Issues Presented
- Whether the appellant qualifies as a "consumer" under section 2(d) of the Consumer Protection Act, 1986 for having booked a commercial shop allegedly "for earning her livelihood by means of self-employment", and consequently whether the complaint before the State Commission was maintainable.
- Whether the State Commission's conclusion that the complaint was not maintainable for lack of proof that the shop was taken exclusively for earning livelihood was legally justified.
Arguments of the Parties
Appellant's Arguments
- The appellant's counsel contended that the appellant had been earning her livelihood as an LIC insurance agent since August 2003 from her residence and had booked the shop to use it as her office (i.e., for earning her livelihood by self-employment).
- The appellant's counsel relied upon three cited authorities to support her position: Ashok Thapar vs Supreme Indosaigon Associates & Anr.; Anand Prakash Gulati vs SDO DHBVNL; and Dwarikesh Sugar Industries Ltd. vs Dhurendrapal Singh.
Respondent's Arguments
- The respondent admitted allotment but asserted the appellant did not fulfill contractual conditions necessary for possession and execution of the sale deed.
- The respondent stated that possession was offered in February 2014 but the appellant failed to execute the required documents; therefore any delay or failure to deliver possession was not the respondent's fault and the complaint should be dismissed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| M/s JCB India Ltd. vs M/s Chandan Traders and Ors. (Revision Petition No. 4044 of 2009) (decided 19.02.2015) | Holds that simple averments that goods/services were taken for earning livelihood are not sufficient; the concerned person must prove that the article/service was to be used for earning livelihood. | The State Commission relied on this authority to conclude that the complainant's bare statement about booking the shop for livelihood was insufficient proof of consumer status. The NCDRC noted this reasoning when assessing whether the complainant had proved entitlement to be treated as a consumer. |
| Unicity Projects & Anr. vs Ranjan Bhatia (Revision Petition No. 421 of 2015) (decided 09.10.2015) | Used by the State Commission as a supporting authority on the requirement to prove entitlement to be treated as a consumer and on maintainability issues. | The State Commission cited this decision in concluding the complaint was not maintainable; the NCDRC acknowledged it as one of the authorities relied on below. |
| Pradeep Singh Pahal vs TDI Infrastructure Pvt. Ltd., CPJ 1 (2016) 219 | Cited by the State Commission in support of the proposition that if a person is not covered by the definition of "consumer", the complaint is not maintainable. | The State Commission relied on this authority in dismissing the complaint. The NCDRC recorded that the State Commission considered this decision when determining maintainability. |
| Haryana Urban Development Authority vs Vipan Kumar Kohli (Revision Petition No. 317 of 1994) (decided 19.01.1995) | Expresses the principle that a judgment without jurisdiction is a nullity. | The State Commission invoked this authority to underscore that it could not adjudicate if the matter fell outside its jurisdiction (i.e., if the complainant was not a "consumer"). The NCDRC recorded this usage by the State Commission. |
| Ashok Thapar vs Supreme Indosaigon Associates & Anr. (decided 19.11.2015) | Holds that if a complainant already has sufficient income from an activity at the time of booking, it cannot be presumed that the property was acquired exclusively to earn a livelihood by self-employment; mere possession of sufficient income may rule out acquisition exclusively for livelihood. | The NCDRC relied on this authority and its reasoning to conclude that because the appellant was already earning a livelihood as an LIC agent at the time of booking (2008), it could not be said she booked the shop exclusively for earning her livelihood; this supported upholding the State Commission's dismissal. |
| Anand Prakash Gulati vs SDO DHBVNL | This authority was cited by the appellant in support of her argument (specific rule/holding as cited in the record is not detailed in the opinion). | The NCDRC observed that the facts of this citation were not applicable to the present case. |
| Dwarikesh Sugar Industries Ltd. vs Dhurendrapal Singh | This authority was cited by the appellant in support of her argument (the opinion does not detail the specific rule relied upon). | The NCDRC recorded that the facts of this citation were not applicable to the case at hand. |
Court's Reasoning and Analysis
The National Commission examined the pleadings and evidence on record to determine whether the appellant qualified as a "consumer" under section 2(d) of the Consumer Protection Act, 1986. The court proceeded in the following steps (as recorded in the opinion):
- The court quoted section 2(d) of the Consumer Protection Act, including the Explanation that "commercial purpose" does not include use exclusively for earning livelihood by means of self-employment.
- The court observed that the complaint contained only a bald statement that the shop was booked "for earning livelihood" and did not set out particulars of how the shop would be used for self-employment or what business the appellant intended to run from the shop.
- The court noted that the appellant, when entering the witness box, did not present evidence establishing that the shop was booked for earning livelihood; she also did not plead that she had no other source of income or the particular type of business to be carried on from the shop.
- The court further observed that records placed before it showed the appellant had been earning her livelihood as an LIC insurance agent since 2003 from her residence (House No. 1138, Sector 8, Faridabad). At the time of booking the shop in 2008 she was already so employed and generating income.
- The court applied the reasoning of Ashok Thapar v. Supreme Indosaigon, which held that if the complainant already had sufficient income from an activity at the time of booking, it could not be inferred that the property was acquired exclusively for earning livelihood; the NCDRC found this principle applicable here.
- The court considered the other cited authorities relied upon by the appellant (Anand Prakash Gulati and Dwarikesh Sugar) and concluded that their facts were not applicable to the present matter.
- On this basis, the court concluded that the appellant had not proved that the shop was acquired exclusively for earning her livelihood by self-employment and therefore did not demonstrate consumer status necessary for maintainability of the complaint under the Consumer Protection Act.
Holding and Implications
APPEAL DISMISSED.
The National Commission found no cogent ground to interfere with the State Commission's impugned order and accordingly dismissed the appeal, leaving the parties to bear their own costs. The direct consequence is that the State Commission's dismissal of the complaint (for lack of proof that the appellant was a "consumer" as required by section 2(d) of the Consumer Protection Act) stands confirmed.
The opinion does not purport to lay down a new legal precedent; it applies existing authorities (notably Ashok Thapar) and upholds the view that mere bald averments of booking property for "earning livelihood" are insufficient—facts showing exclusive use for self-employment must be pleaded and proved for consumer status to be established.
This summary is prepared strictly on the basis of the information contained in the provided opinion and does not add or infer facts beyond that text.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 1648 OF 2017
(Against the Order dated 07/04/2017 in Complaint No. 29/2015 of the State Commission Haryana)
1. SHWETA SHARMA
W/O. MR. SATYDEV KAUSHIK. FLAT NO.102, GOKUL APARTMENTS, SECTOR-45.
FARIDABAD-1210101 ...........Appellant(s) Versus
1. M/S. BPTP LTD. M-11, MIDDLE CIRCUS. NEW DELHI-110001 ...........Respondent(s)
BEFORE:
HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER For the Appellant : Mr Amit Goel, Advocate For the Respondent :
Dated : 16 Nov 2017
ORDER
REKHA GUPTA, PRESIDING MEMBER
The present appeal has been filed against the judgment dated 07.04.2017 of the Haryana State Consumer Disputes Redressal Commission, Panchkula ('the State Commission') in CC no. 29 of 2015.
2. The facts of the appeal as per the appellant/complainant are that the appellant had booked a shop no. OF - 17 A measuring 478 sq feet with the respondent/ opposite party for Rs.16,96,900/- against an initial payment of Rs.1,69,690/- on 24.07.2008 for earning her livelihood. Vide letter dated 20.08.2008 allotment was made and it was told that the possession would be delivered within 36 months thereof. The appellant deposited the entire consideration within 10 months of allotment, as detailed in the complaint, but the possession was not delivered. Hence, the appellant filed the complaint with the prayer that the OP be directed to grant relief as mentioned below:
Get the sale deed of the shop being unit no. OF - 17 A in the next door, sector 76, Parklands, Faridabad registered in favour of the appellant and hand over the possession of the shop to the appellantor alternatively, refund the appellant the entire amount paid by the appellant till date along with interest @ 24% per annum;
• Pay the appellant compensation for delay in handing over the possession of the shop in accordance with clause 3 of Buyer's agreement along with interest @ 24% per annum till the date of payment;
• Pay the appellant interest @ 24% per annum on Rs.2,92,504/-, i.e., the amount deposited •
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by the appellant on 04.03.2014 till the date of registration of sale deed (in case of order of refund of the entire amount as per prayer clause (i) the appellant be directed to refund Rs.2,92,504/- along with interest @ 24% per annum);
Refund the appellant the amount of Rs.61,877/- of enhanced external development charges which hs been charged illegally without any justification along with interest @ 24% per annum;
• Refund the appellant electricity connectioncharges of Rs.60,000/- which has been charged illegally without any justification along with interest @ 24% per annum;
• Refund the appellant power back up charges of Rs.75,000/- which has been charged illegally without any justification along with interest @ 24% per annum; and
• Pay the appellant a sum of Rs.20,00,000/- as compensation for harassment and mental agony caused to appellant due to delay in handing over of possession of shop, non- payment of compensation for delay in possession, non-registration of sale deed and the respondent company's authoritative manner in pressurising appellant to deposit/ submit the illegal demands raised by respondent company.
•
3. The respondent filed their reply admitting allotment but alleged that the appellant did not fulfil the conditions stipulated in agreement for possession as well as execution of sale feed. Possession was offered to her in the month of February 2014, but the appellant did not execute relevant documents, so there was no fault on their part and prayed that the complaint be dismissed.
4. The State Commission vide its order dated 07.04.2017 while dismissing the complaint observed as under:
"4. Learned counsel for the complainant argued that the shop was booked for earning livelihood as specifically alleged in complaint so it cannot be considered that it was for commercial purpose. She is covered by definition of consumer and this complaint is maintainable.
5. However, there is no dispute that in paragraph no. 3 of the complaint it is alleged that the shop was booked for earning livelihood, but she did not produce any evidence to prove this fact. When complainant entered witness box it was no-where stated that this shop was booked in commercial complex for earning livelihood. The National Commission has clearly opined in Revision Petition no. 4044 of 2009 titled as M/s JCB India Ltd., vs M/s Chandan Traders and Ors., decided on 19.02.2015 that simple averments that anything was taken for earning livelihood is not sufficient to presume this fact to be true. It is specifically opined therein that concerned person is supposed to prove that said article was to be used by him or her for earning livelihood. Complainant no-where alleged that what is she doing and what business was to be run in this shop. It is also not alleged that she was not having any source of income and particular type of business was to be run by her. When these facts are missing it cannot be presumed that the shop was booked for earning livelihood. These views are also fortified by the opinion of the National Commission in Revision Petition no. 421 of 2015 titled Unicity
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Projects and Anr. Vs Ranjan Bhatia decided on 09.10.2015, Pradeep Singh Pahal vs TDI Infrastructure Pvt. Ltd., CPJ 1 (2016) 219. When she is not covered by definition of consumer, complaint is not maintainable and this Commission can't adjudicate upon this dispute because judgment without jurisdiction is nullity as opined by the National Commission expressed in Revision Petition no. 317 of 1994 titled as Haryana Urban Development Authority vs Vipan Kumar Kohli decided on 19.01.1995. Resultantly complaint fails and the same is hereby dismissed".
5. Hence, the present appeal.
6. Learned counsel for the appellant had contended that the appellant has been earning her livelihood as an LIC insurance agent since August 2003 from her residence and has now booked a shop to use it her office. Learned counsel for the complainant has cited three citations to support his argument;
Ashok Thapar vs Supreme Indosaigon Associates & Anr.;1.
Anand Prakash Gulati vs SDO DHBVNL; and2.
Dwarikesh Sugar Industries Ltd., vs Dhurendrapal Singh3.
7. Before disposing of the case I would like to advert to section 2 (d) of the Consumer Protection Act, 1986, 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 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
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exclusively for the purposes of earning his livelihood by means of self-employment;
8. On-going through the complaint, it is seen that the State Commission had correctly observed that in the complaint apart from making a bald statement that the complainant had booked a shop no. 17 A in the commercial project of the respondent for earning her livelihood, there is no pleading to the effect that she had booked it for earning her livelihood by means of self-employment and if so, in what manner. She had also not revealed in the complaint that she was already working as an LIC insurance agent from 2003 onwards. As per the record now placed on file, the appellant was working as an agent from House no. 1138, Sector 8 Faridabad, Haryana. It is quite evident from the facts of the case that at the time when the appellant booked the said shop in the year 2008, she was already earning her livelihood by self- employment as an LIC insurance agent. Nowhere in the complaint has she mentioned the business she wishes to pursue from the shop.
9. In the case of Ashok Thapar vs Supreme Indosaigon decided on 19.11.2015, it has been held that the complainant had booked three offices spaces on the plea that it would be used by him exclusively for the purposes of earning his livelihood by means of self-employment. A Coordinate Bench of this Commission had observed that the complainant was already in the business of real estate and was generating sufficient income to run the said real estate from the residence. It had further observed as under:
"Since the complainant was already having sufficient income at the time commercial flats in question were booked by him, it cannot be said that he had booked the aforesaid flats exclusively for the purpose of earning his livelihood. The very fact that the complainant was having sufficient income at the relevant time by itself rules out acquisition of these flats for the purpose of earning his livelihood. Since the complainant was seeking to use these three commercial flats as his personal office, it appears that the activity to use these three commercial flats as his personal office, it appears that the activity which he was seeking to carry in the aforesaid commercial flats would have been different from the activity from which he was having substantial income at the time the flats in question were booked by him. This is not the case that he will carry, in the office spaces booked by him, the same activity, which was the source of his income at the time of booking.
10. The facts of the two citations quoted below, i.e., Anand Prakash Gulati vs SDO DHBVNL and Dwarikesh Sugar Industries Ltd., vs Dhurendrapal Singh are not applicable to the case on hand.
11. In this case the complainant has been earning her livelihood by generating income by working as an LIC insurance agent since 2003 by working from her residence. Hence, it cannot be stated that the complainant who was already earning her livelihood and had sufficient income had booked the shop for the purpose of earning her livelihood by self-employment. Further, the appellant has nowhere stated as to why she was in need of the shop. She has also concealed the fact that she was an LIC insurance agent since 2003. The learned counsel for the appellant could not give any explanation why the complainant needed the shop after successfully generating business as an LIC insurance agent from her residence for the last
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fourteen years.
12. In view of the foregoing discussion, I do not find any cogent ground to interfere with the impugned order of the State Commission. The appeal is accordingly dismissed, leaving the parties to bear their own costs.
......................
REKHA GUPTA
PRESIDING MEMBER
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