Sham Sunder (Retd.), President: 1. The facts, in brief, are that the complainant is a Chartered Accountant by profession, who is doing his own practice. The Opposite Parties, are promoters and developers of Techno Knowledge Park project, for Fashion Technology, situated at Sector 90, SAS Nagar, District Mohali, Punjab, under the name-Design and Insignia of Industrial Knowledge (Fashion Technology) Park. In the month of April 2010, the Opposite Parties floated a small investor scheme, regarding the allotment of design studios, in the aforesaid project. In the advertisement, the Opposite Parties stated that the project would operate from 01.09.2010. The complainant was allured by such advertisement, and, submitted an application dated 09.05.2010, and Rs.1 lac, through cheque no.572613 dated 09.05.2010, drawn on UCO Bank, New Delhi, to the Opposite Parties, for buying a design studio, in their project, for the purpose of earning his livelihood, by way of self employment. The Opposite Parties acknowledged the payment, and issued receipt no.3001 dated 09.05.2010. Thereafter, the Opposite Parties allotted Design Studio No.38, measuring 335 square feet, 6th floor, in œDesign Pavillion II?. Buyer Developer Agreement dated 16.05.2010 Annexure-3, was executed, between the complainant, and Opposite Party No.1. According to Clause (1) of the Buyer Developer Agreement dated 16.05.2010 Annexure-3, the price of the unit was fixed @Rs.22,11,670/-. However the Opposite Parties had offered discount to the complainant, if the payment was made in lumpsum. Hence, the amount of Rs.19,68,386/-, was finally settled, between the parties, after the discount. It was stated that the balance amount, after deducting booking amount, aforesaid, came to be Rs.18,68,386/-, which was paid by the complainant, to the Opposite Parties, through cheque no.572614 dated 20.05.2010, drawn on UCO Bank, New Delhi.
2. According to Clause 15 of the Buyer Developer Agreement dated 16.05.2010 Annexure-3, the date of completion of construction of the said design studio was 01.09.2010. It was further mentioned in the said Clause that if the developer failed to hand over possession of the the said studio, by the due date, it shall be liable to pay the buyer, the damage charges @Rs.50/- per square feet, per month. It was further stated that till the date of filing the complaint, possession of the unit, in question, was not delivered, as construction of the same was not complete. It was further stated that, thus, the Opposite Parties were liable to pay damage charges @Rs.50/- per square feet, per month, from 01.09.2010, onwards.
3. It was further stated that according to Clause 25 of the Buyer Developer Agreement dated 16.05.2010 Annexure-3, if the buyer wanted to run his own business, in the said unit, he would be entitled to rental income @12% per annum, on the amount deposited by him (buyer). However, if the buyer wanted to sell unit back to the Company, after the expiry of 36 months, then he was entitled to a sum of Rs.33,17,505/- minus (-) the payable amount to the buyer, in 36 months. It was further stated that the Opposite Parties failed to abide by their commitment. It was further stated that Opposite Party No.1 also got executed the lease deed dated 21.06.2010, between the complainant and Opposite Party No.2. It was further stated that rental amount, came to Rs.25,803/-, per month, and the same was evident from copy of the cheque dated 16.10.2010, issued by Opposite Party No.1. It was further stated that Opposite Party No.1 partially complied with the said Clause No.25 of the Buyer Developer Agreement dated 16.05.2010 Annexure-3, by making payment of the rental income to the tune of Rs.25,803/- per month, to the complainant from July 2010 to September 2010, through cheques. It was further stated that except for one cheque, in question, all other cheques issued by Opposite Party No.1, issued in his favour, were returned unpaid, for want of sufficient funds. It was further stated that Rs.9,28,908/-, was over due to the complainant, from 01.10.2010 to 30.09.2013, on account of monthly rent.
4. It was further stated that the complainant requested the Opposite Parties to handover possession of the unit, in question, to him, but they failed to do so. Letters were also written to the Opposite Parties, for delivery of possession of the said unit, and compliance of other terms and conditions of the Buyer Developer Agreement dated 16.05.2010 Annexure-3, but to no avail. Thereafter, the complainant got served legal notice dated 17.09.2013, on the Opposite Parties, vide which he exercised the option, to sell the Design Studio to the Opposite Parties, but they did not send any reply to the same. It was further stated that by not making payment of the buy back option, exercised by the complainant, as also the rental and damages @Rs.50/- per square feet, per month, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to pay Rs.33,17,505/-, on account of the buy back offer, as per Clause 25 of the Buyer Developer Agreement dated 16.05.2010 Annexure-3; Rs.9,28,908/-, as assured rental @Rs.25,803/-, per month, from 01.10.2010 to 30.09.2013, alongwith interest @24% P.A.; Rs.6,19,750/- from 01.09.2010 to 30.09.2013, on account of damages @Rs.50/- per square feet, per month; compensation, to the tune of Rs.10 lacs, for mental agony, physical harassment and deficiency, in rendering service; and cost of litigation, to the tune of Rs.15,000/-.
5. The Opposite Parties were duly served, but none put in appearance, on their behalf, as a result thereof, they were proceeded against exparte, by this Commission, on 17.12.2013.
6. The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.
7. We have heard the Counsel for the complainant, and have gone through the evidence and record of the case, carefully.
8. The first question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer or not. The complainant is a Chartered Accountant by profession, as stated by him, in paragraph number 1 of the complaint. This averment was duly corroborated by him, in the affidavit, submitted by him, by way of evidence. The complainant, in clear-cut terms, stated in the complaint, as also in the affidavit, submitted by way of evidence, that he wanted to run his office, in the design studio, in question, with a view to earn his livelihood, and livelihood for his family members, by way of self employment. It was only a small investors scheme, in which the complainant was allotted the Design Studio. The area of the design studio, in question, which was allotted in favour of the complainant, is only 335 square feet, which comes to 37.22 square yards, constituting 1½ marlas only. It means that it was only a small unit, which was purchased by the complainant, and he could not run any big business on a large scale, in the same. The complainant did not purchase the said unit for running a commercial activity, on large scale, for earning the huge profits. The price of the unit was also not too big. It was only Rs.22,11,670/- and after discount lumpsum amount Rs.19,68,386/-, including booking amount, was paid by the complainant. Since, the complainant was only to open small office, in the said unit, by way of self employment, for earning his livelihood, by no stretch of imagination, it could be said that he did not fall within the definition of a consumer. There is nothing, on the record, that the complainant was engaged in any other commercial activity, as a result whereof, he was earning huge profits. In Haryana Urban Development Authority Vs. Usha Vohra, IV (2009) CPJ 305 (NC), the complainant was allotted a booth in Sector 10, Panchkula, on 15.10.1991, for which she had paid a total consideration of Rs.8,29,354.50, till 31.12.1996. There was no averment, in the complaint, that the same was purchased by the complainant, for earning her livelihood, by way of self employment. The complaint was decided, in favour of the complainant, by the District Forum, directing the Opposite Parties, to refund the excess amount charged. An appeal was preferred, before the State Consumer Disputes Redressal Commission, which was dismissed. Feeling aggrieved, a Revision Petition was filed by the Haryana Urban Development Authority. During the course of Revision Petition, an argument was advanced, that since the complainant was allotted booth, which was obviously for commercial purpose, she did not fall within the definition of a consumer. The National Consumer Disputes Redressal Commission, in the aforesaid case, held that the mere fact that the respondent/complainant, had been allotted a booth, no conclusive finding, could be recorded about the same (booth) having been allotted for commercial consideration, and, not for earning livelihood, as that would require a lot of consideration to unsuit her. In Remington Rand of India Ltd., and Ors. Vs. Pioneer Typewriter Co. I (1996) CPJ 317 (NC), a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, New Delhi, the complainant purchased a Paper Copier Machine for Rs.1,43,000/-, from the Opposite Party, which did not give satisfactory service. No averment, was made, in the complaint, that the Paper Copier Machine, had been purchased by the complainant, for earning livelihood, by way of self employment. Ultimately, the machine became defective, and the complaint for replacement of the same, was filed. The State Consumer Disputes Redressal Commission, decided the complaint, in favour of the complainant. Feeling aggrieved, an appeal was filed by the Opposite Party/appellant, which took up the plea, that the complainant/respondent, did not fall within the definition of a consumer, as the machine was purchased by it, for running the business, on a large scale, for earning huge profits. In these circumstances, the National Consumer Disputes Redressal Commission held that the firm of the complainant, was indeed a small unit, and just because it was a partnership firm, it could not be concluded that it was engaged, in a large scale commercial activity, for earning huge profits. It was further held that since loan was obtained by the complainant/ respondent, from the Bank, for purchasing the machine, which fact, in itself, clearly proved that the complainant was to run a small venture, to earn its livelihood, by way of self employment. In Jindal Oil and Ginning Factory Vs Punjab Small Industries and Export Corporation IV (2008) CPJ 294, a case decided by the Punjab State Consumer Disputes Redressal Commission, Chandigarh, an application for allotment of an industrial plot, was made by the complainant, but no averment was made, in the complaint, by the complainant, that it intended to purchase the same with a view to earn livelihood, by way of self employment. However, the Punjab State Consumer Disputes Redressal Commission, at Chandigarh, held that when the industrial plot was not allotted to the complainant, it sought refund, and, under these circumstances, it fell within the definition of a consumer.
9. As per the explanation appended to clause (ii) of Section 2(d) of the Act commercial purpose does not include use by a person of goods bought and used by him/her, and services availed of by him/her exclusively, for the purpose of earning him/her livelihood, by means of self-employment. It is not the value of the goods, that matters, but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of the Parliament abundantly clear, that the goods bought, must be used, by the buyer himself, by employing himself, for earning his livelihood. A few more illustrations would serve to emphasis that a person who purchases an auto-rickshaw, to ply it, himself, on hire, for earning his livelihood, would be a consumer. Similarly, a purchaser of a truck, who purchases it, for plying it as a public carrier, by himself, would be a consumer. A person, who purchases a lathe machine, or other machine, to operate it himself, for earning his livelihood, would be a consumer. In the above illustrations, if such a buyer, takes the assistance of one or two persons, to assist/help him, in operating the vehicle or machinery, he does not cease to be a consumer. As against this, a person who purchases an auto-rickshaw, a car or a lathe machine, or other machine, to be plied or operated exclusively by another person, would not be a consumer. This is the necessary limitation, flowing from the expressions "used by him", and "by means of self-employment" in the explanation. Similar principle of law, was laid down, in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC). The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. As stated above, it was only a small unit, measuring 335 square feet, the price whereof was Rs.22,11,670/- and after discount lumpsum amount of Rs.19,68,386/-, including booking amount, was paid by the complainant. The small size of the unit (design studio) and the moderate amount, for which it was purchased, in itself, were sufficient to prove, that the same was purchased by the complainant for running a small office, to earn livelihood, by way of self employment. In our considered opinion, the complainant fell within the definition of a consumer.
10. The next question, that falls for consideration, is, as to whether, the complainant exercised the offer of selling the unit back to the Company, after the expiry of a period of 36 months, from 16.05.2010, the date of execution of the Buyer Developer Agreement Annexure-3, or not. It is evident, from Annexure C-11, legal notice dated 17.09.2013, that the complainant made his intention clear to the Opposite Parties that he wanted to sell the unit back to them. Such intention was expressed by the complainant, after the expiry of period of 36 month, as per Clause 25 of the Buyer Developer Agreement dated 16.05.2010 Annexure-3. The Opposite Parties, however, did not send any reply to the legal notice. By not sending any reply to the legal notice, whereby the complainant exercised his option to sell the unit, to the Opposite Parties, as per Clause 25 of the Agreement, they presumed to have accepted the same by acquiescence. It is, therefore, held that the complainant exercised the option vide notice aforesaid, that he wanted to sell the unit, in favour of the Opposite Parties, as per Clause 25 of the Agreement, aforesaid, which was presumed to be accepted by them.
11. The next question, that falls for consideration, is, as to whether, exercise of option by the complainant, as per Clause 25 of the Agreement aforesaid, amounted to resale. From the very beginning, it was not the intention of the complainant, to resell the unit, which was purchased by him. In M/s Baba Group Enterprises and others Vs. Dinesh Paramanik (2010) (2) CCC 717 (NS), the complainant/respondent allured by an advertisement of petitioner no.2/opposite party No.2, in the newspaper, approached petitioner no.1/opposite party no.1 and paid an advance of Rs.1000/-Thereafter, another amount of Rs.14,000/- towards the cost of 3000 saplings was paid to the petitioners/opposite parties. It was undertaken by the petitioners/opposite parties that they will buyback the saplings @Rs.17/- per sapling, when it became 12? in size. When the saplings became 12? in size, the respondent/complainant approached the petitioners/ opposite parties, to take delivery thereof, but they refused to buyback the same. Thereafter, a Consumer Complaint was filed. The same was allowed, holding that the same was maintainable, as the buyback facility was the service, which was provided by the petitioners/opposite parties, and refusal in honouring the same, amounted to deficiency, in rendering service, by them. Appeal filed against the order, rendered by the District Forum, was dismissed. The revision-petition filed in the National Consumer Disputes Redressal Commission, New Delhi, also met the same fate.
12. In M/s National Seeds Corpn. Ltd.. Vs. M. Madhusudhan Reddy and Anr., Civil Appeal No.7543 of 2004, decided on 16.01.2012, by the Honble Supreme Court, the appellant/opposite party had selected a set of farmers, in the area, for growing seeds, on its behalf. After entering into agreements with the selected farmers, the appellant, supplied foundational seeds to them, for a price, with an assurance that within a few months, they will be able to earn profits. The seeds were sown under the supervision of the expert, deputed by the appellant. The entire crop was to be purchased by the appellant. The agreements entered into between the appellant, and the growers, clearly postulated supply of the foundational seeds with an assurance that the crop will be purchased by it. No evidence was produced that the growers had the freedom to sell the seeds in the open market, to any person other than the appellant. Under these circumstances, the Apex Court held that it could not be said that the growers had purchased the seeds for resale or for any commercial purpose and they were excluded from the definition of the term consumer.
13. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case. As stated above, since the facility of buyback of the design studio was given by the Opposite Parties, it could not be said that the complainant intended to purchase the said studio, for the purpose of resale. Had it been the intention of the complainant, from the very beginning, to resell the said unit, then the matter would have been different.
14. The next question, that falls for consideration, is, as to what amount, the complainant was entitled to, on account of exercising his option to sell the unit, in question, to the Opposite Parties, as per Clause 25 of the Buyer Developer Agreement dated 16.05.2010 Annexure-3. It is evident from this Clause that if the buyer wanted to sell the unit, back to the Company, after 36 months, then the buyer was entitled to the price of Rs.33,17,505/-, minus(-) the payable amount to the buyer, in 36 months. The parties signed this Agreement, with eyes wide open, and, as such, they were bound by the same. The amount of rent for three years, which was payable to the complainant, by the Opposite Parties, came to be Rs.9,28,908/-. This payable amount was to be deducted from the sum of Rs.33,17,505/- which was the amount of buy back offer. Thus, the complainant was entitled to a sum of Rs.23,88,597/-, as per Clause 25 of the Buyer Developer Agreement dated 16.05.2010 Annexure-3. By not paying this amount, the Opposite Parties were deficient, in rendering service.
15. The next question, that falls for consideration, is, as to whether, the complainant was entitled to damage charges @Rs.50/- per square feet, per month, as per Clause 15 of the Buyer Developer Agreement dated 16.05.2010 Annexure-3. Clause 15 of the said Agreement Annexure C-3 reads as under:-
Agreed date of completion is 1.9.2010. If the Developer is not able to hand over the apartment by the due date, then the Developer will be liable to pay the Buyer the damage charges @Rs.50/- square foot per month. This condition however is not applicable in case the delay is caused by natural disaster/Government or Court Ruling, Strikes and any other reasons beyond the control of the Developer under Force Majeure conditions. Time so spent under Force majeure conditions will be added in completion period?.
16. The complainant sought possession of the unit, in question, initially, but when the possession thereof, was not delivered to him, even upto 17.09.2013, when the legal notice was given by him, left with no alternative, he made his intention clear, for sale of the unit, to the Company itself. According to Clause 15 afore-extracted, the date of completion of the said unit was 01.09.2010, and if the developers were not able to hand over the same (unit), by the due date, then they were liable to pay damage charges @Rs.50/- square feet per month. The complainant, was, thus, entitled to damage charges @Rs.50/- square feet per month, from 01.09.2010, onwards.
17. For the reasons recorded above, the complaint is partly accepted, with costs, directing the Opposite Parties, jointly and severally, as under:-
i. Pay to the complainant, a sum of Rs. Rs.23,88,597/-, as per Clause 25 of the Buyer Developer Agreement dated 16.05.2010 Annexure-3 i.e. (Rs.33,17,505/- minus (-) Rs.9,28,908/- referred to above).
ii. Pay to the complainant, compensation/damage charges @Rs.50/- square foot per month, from 01.09.2010, onwards, as per Clause 15 of the Buyer Developer Agreement dated 16.05.2010 Annexure-3.
iii. Pay to the complainant, cost of litigation, to the tune of Rs.10,000/-
iv. The amounts mentioned in Clauses (i) and (ii) shall be paid, within a period of 60 days, from the date of receipt of a certified copy of this order, failing which the same shall carry interest @9% P.A., from the date of default, till realization, besides payment of costs, to the tune of Rs.10,000/-.
18. Certified Copies of this order be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion.