M/S. SHELTER MAKER (I) PRIVATE LIMITED & 2 ORS. vs RAMESHBHAI R. SHAH & ANR.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.

330 OF 2015 (Against the Order dated 25/02/2015 in Complaint No.

226/2010 of the State Commission Maharashtra) 1.

M/S.

SHELTER MAKER (I) PRIVATE LIMITED & 2 ORS.

7TH FLOOR, POONAM PLAZA, MANJREKAR WADI, OPP.

REGENCY HOTEL, ANDHERI GHATKOPAR ROAD, ANDHERI (EAST) MUMBAI-69 2.

SHELTER MAKER (I) PRIVATE LTD., THROUGH ITS MANAGING DIRECTOR, NANDKUMAR K.

HARCHANDANI, REGISTERED OFFICE ADDRESS 1ST FLOOR, POONAM CHAMBER, BYRAMJI TOWN, CHHINDWARA ROAD, NAGPUR (MS) ...........Appellant(s) Versus 1.

RAMESHBHAI R.

SHAH & ANR.

B-307, SAGAR APARTMENT, DEVIDAS LANE, S.V.P.

ROAD, BORIWALI (W), MUMBAI-400103 MAHARASHTRA 2.

MR.

MINESH R.

SHAH B-307, SAGAR APARTMENT, DEVIDAS LANE, S.V.P.

ROAD, BORIWALI (W) MUMBAI- ...........Respondent(s) BEFORE: HON'BLE MR.

JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER For the Appellant : Mr.

Vipin V.

Bower, Advocate : Mr.

D.T.

Pandey, Advocate : Mr.

Nalin Majithia, Advocate For the Respondent : Mr.

M.L.

Lahoty, Advocate : Mr.

Pranab Kumar Nayak, Advocate : Mr.

Anchit Sripat, Advocate Dated : 23 Dec 2021 ORDER 1.

Heard Mr.

Lahoty, Senior Advocate, for Rameshbhai R.

Shah and Minesh R.

Shah and Mr.

Nalin Majithia, Advocate, for M/s.

Shelter Makers (I) Pvt.

Ltd., in both the appeals.

2.

Aforementioned the appeals have been filed from the order of State Consumer Disputes Redressal Commission Maharashtra, Mumbai, dated 25.02.2015, passed in Consumer Complaint No.

226 of 2010, partly allowing the complaint and directing the complainants to pay the balance amount of Rs.230500/- to M/s.

Ltd., within 45 days.

On deposit of the aforesaid amount, the opposite parties were directed to hand over vacant and peaceful possession of the shop Unit 209-B, admeasuring 340 sq.ft. of built up area, on second floor of Sale Building No.

1, known as Poonam Plaza, Manjrekar Wadi, Andheri, Ghatkopar Road, Andheri (East), Mumbai to the complainants.

3.

Rameshbhai R. eshbhai R.

Shah (the appellants) filed Consumer Complaint No.

226 of 2010 for directing the opposite parties, (hereinafter referred to as the builder) (i) to accept the balance amount of Rs.230500/- and hand over vacant and peaceful possession of the Unit 209-B, on second floor of Sale Building No.

1, complete in all respect, as per agreement dated 30.12.2004, within stipulated period (ii) to pay an interest @24% per annum on Rs.1257000/- from the date of each deposit till handing over possession (iii) to obtain “Completion Certificate” and “Occupation Certificate” of the building (iv) to Pay Rs.500000/- as compensation for mental agony and physical harassment and Rs.100000/- as cost of the litigation and (v) any other relief which may be deemed fit and proper, in the circumstances of the case, be passed.

4.

The facts, as stated in the complaint and emerged from the documents attached with it, are that the builder was a company, engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers.

The builders launched a project of commercial complex in the name of “Poonam Plaza”, at CTS Nos.

343 and 343/1 to 343/7 (total area 5673.93 sq. meter), village Gundavili, Andheri (East), Mumbai, in the year 2004.

These plots were “the slum land” and allotted to the builder by Slum Rehabilitation Authority, Grih Nirman Bhawan, Bandra, Mumbai, for construction of commercial complex, in order to generate fund, to rehabilitate the residents of slum area.

The complainants were in need of one unit, for opening office for earning their livelihood by way of self-employment.

The complainants booked one unit of space and deposited Rs.9.57 lacs on 16.09.2004.

Unit 209-B, admeasuring 340 sq.ft. of built up area, on second floor of Sale Building No.

1 of Poonam Plaza, for sale price of Rs.1487500/-, was allotted to the complainants and Ownership Agreement was executed in their favour on 30.12. on 30.12.2004.

Under Clause-9 (a) of the Ownership Agreement, promised date of possession was December, 2005.

The complainant deposited Rs.

957000/- on 16.09.2004, Rs.150000/- on 19.01.2005 and Rs.150000/- on 04.03.205 (total Rs.1257000/-).

Slum Rehabilitation Authority issued a notice dated 20.01.2005, to the builder and also lodged criminal complaint at Andheri Police Station on 17.08.2005 under Section 44 and 69 of Maharashtra Regional and Town Planning Act, 1966, against the builder on the allegations that the construction was not being raised in accordance with the permission granted under No.

SRA Eng/951/KE/PL/AP dated 25.08.2004.

It appears that the builder applied for issue of “Occupation Certificate”, in the year 2007.

Slum Rehabilitation Authority, vide his letter dated 23.03.2007, raised objections that on inspection it was found that in Rehab.

Building No.1 (i) Internal Painting was incomplete, (ii) Electrification of passage is not done, (ii) Cracks appears in the walls and plaster are not filled/rectified and (iv) Civil work of tenements at the ground floor is incomplete.

The complainants alleged that the builder was not taking any interest in completing the construction, in all respect and obtaining “Occupation Certificate” nor offering possession thus there was deficiency in service on their part.

On these allegations, the complaint was filed.

5.

The builder contested the complaint and filed its written reply, in which, material facts have not been denied.

It has been stated that the complainants have not disclosed their professional qualifications and business/professional activities, as such, they are not a ‘consumer’ within the meaning of Consumer Protection Act, 1986 rather they invested money in real estate in order to earn profit.

The complaint was time barred. me barred.

Various reliefs of the complaint are in the nature of public interest but they have not obtained permission under Section 12(1) (c) of the Act nor followed the procedure under Section 13(6) of the Act and Order 1 Rule 8 C.P.C.

Neither basis nor evidence of the damages claimed in the complaint has been given.

The complainants were defaulters in payment of instalments and no relief can be granted to them.

The complainants have paid about 84% of the sale price although 95% of the construction was completed and up to this level of construction, they had to pay 92% of sale price.

On the arrears of instalments, the complainants were liable to pay interest @24% per annum as per agreement.

Opposite Parties-2 to 6 are neither necessary nor proper party, the complaint is liable to be dismissed for mis-joinder of the parties.

Wrong address of opposite party-1 has been given and Commission has no territorial jurisdiction.

Opposite Party-1 has completed 95% of the construction and in process of obtaining “Occupation Certificate” and “Completion Certificate”.

The date of possession in the agreement was tentative and subject to the contingencies mentioned in it.

The complainants are defaulters and not entitled to any relief.

6.

State Commission by the impugned order dated 25.02.2015 found that Rameshbhai R.

Shah, in his Affidavit of Evidence has stated that he was a charted accountant and has also filed his education certificate and registration etc.

He stated that he required the premises for opening his office for earning his livelihood.

As such the complainants were consumers.

He has already paid Rs.1257000/- out of total sale price of Rs.1487500/-.

However, the construction was unreasonably delayed as such they cannot be said to be a defaulter.

On these findings the complaint was partly allowed as mentioned above.

Both the parties are aggrieved by the order of State Commission and have filed their separate appeals. e appeals.

In compliance of the order of State Commission, the complainants have deposited remaining sale consideration of Rs.230500/- before the State Commission on 01.04.2015.

7.

I have considered the arguments of the counsel for the parties and examined the record.

The builder raised an objection that the complainant is not a consumer.

The word “consumer” has been defined under Section 2 (1) (d) and word “service” has been defined under Section 2 (1) (o) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which are quoted below:- Section-2 (1) (d).- “consumer” mean 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 and partly promised, or under any system of deferred payment, when such use is made with 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 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 such services for any commercial purpose; Explanation.- For the purpose 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 livelihood by means of self employment. mployment.

Section 2(1) (o):- “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;” 8.

The term “housing construction” has been added by Act No.50 of 1993.

State Consumer Disputes Redressal Commission, Maharashtra, in CC/12/143 Mr.

Sharan Agrawal Vs.

Shri Balaji Constructions (decided on 08.10.2012) has held that the term “housing construction” will not include construction of commercial building.

The view taken by State Consumer Disputes Redressal Commission, Maharashtra is not liable to be accepted.

The term “housing construction” has been used in general sense.

It means “building construction”, which may be residential, commercial or factory premises.

Supreme Court in Tata Engineering & Locomotive Co.

Ltd.

Vs.

Gram Panchayat Wagbare, (1976) 4 SCC 177 held that the word ‘house’ extends to a building, which is used for business and should not be restricted to mere dwelling house.

It is not limited to a structure designed for human habitation and may mean a building or shed intended or used as a habitation or shelter of animals of any kind, a building in ordinary sense or any building, edifice or structure enclosed with walls and covered, regardless of the human habitation.

9.

Explanation was added by Act No.

50 of 1993 w.e.f.

18.06.1993 and slightly modified by Act No.

62 of 2002, w.e.f.

15.02.2003.

Scope of the Explanation as well as expressions “commercial purpose” and “the purposes of earning livelihood by means of self-employment” came up for consideration before Supreme Court in Laxmi Engineering Works Vs.

P.S.G.

Industrial Institute, (1995) 3 SCC 583.

In which, it has been held that the Explanation was an exception to an exception.

Expression “commercial purpose” has not been defined as such its dictionary meaning has to be taken into consideration. “Commerce” means financial transaction, especially buying and selling of merchandise on large scale.

As in the Explanation, the purposes of earning livelihood by means of self-employment, has been excluded from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such buyer from the purview of the “consumer” so long as it is used by the buyer or his family members or with the help of one or two other persons.

It is question of fact and has to be decided in each case independently.

In this case, three generator sets were purchased for the purposes of the factory by the complainant and it was held that it was for commercial purpose.

10.

In Cheema Engineering Services Vs.

Rajan Singh, (1997) 3 SCC 131, brick manufacturing machine was purchased by the complainant and Consumer Forums have held that it was for “commercial purpose”.

Supreme Court found that Consumer Forums have failed to decide as whether it was purchased for earning livelihood by means of self-employment, as such the matter was remanded to District Forum for deciding this issue.

In Sunil Kohli Vs.

Purearth Infrastructure Ltd., (2020) 12 SCC 235, in which, the complainant, who was non-resident of India, booked commercial space for doing their own business, it was found that as the complainant wanted to dispose of his property and settled and start his business in Delhi, as such he was consumer.

In Leelawati Kirtilal Mehta Trust Vs.

Unique Shanti Developer, (2020) 2 SCC 265, it has been held that a person engaged in commercial activity can buy the goods for his own purpose. n purpose.

In this case, the flats were purchased by the complainant for the purposes of accommodation of the nurses, employed in the hospital and the complainant was held as consumer.

11.

From the aforesaid cases, it is clear that a person, who purchases the goods for resale or for any commercial purpose or avails services for commercial purpose is not a consumer under Section 2 (1) (d).

But if he proves that the good is purchased or the service is availed for his personal use or exclusively for the purposes of earning livelihood by means of self-employment, then he is not excluded from the definition of the consumer.

This issue has to be decided on the basis of the evidence adduced in the case.

12.

In the present case, Rameshbhai R.

Shah is his son and a joint allottee of the Unit.

There is no reason to disbelieve the affidavit of Rameshbhai R.

Shah that he was in need of the office space, for his profession of charted accountant.

The builder has also filed various papers, showing that Rameshbhai R.

Shah was a senior auditor.

The objection is being raised in respect of his age.

There is no restriction for a professional to practice after some age as such objection in this respect is irrelevant.

The builder took the plea that the complainants have invested the money in real estate for deriving profit and not for his personal use.

The burden lies upon the builder to prove their pleading.

The builder has not adduced any evidence to prove that the complainant had been doing business of buying the property and selling it.

Findings of the State Commission that the complainants are consumer, does not suffer from any illegality.

13.

Next ground has been raised by the builder that the complaint was time barred. me barred.

It may be mentioned that the builder has neither offered possession nor denied possession, as such, demand for possession, is a continuing cause of action and it cannot be said that the complaint was time barred.

Similarly objection relating to territorial jurisdiction of the State Commission also does not have any merit as the builder was carrying out the business in Mumbai and the building of which possession was sought exists in Mumbai as such the complaint has been rightly filed in Mumbai.

The appeal filed by the builder has no merit.

14.

The complainants deposited Rs.957000/- on 16.09.2004, Rs.150000/- on 19.01.2005 and Rs.150000/- on 04.03.205 (total Rs.1257000/-).

The complainants have stated that Slum Rehabilitation Authority issued a notice dated 20.01.2005, to the builder and also lodged criminal complaint at Andheri Police Station on 17.08.2005 and Section 44 and 69 of Maharashtra Regional and Town Planning Act, 1966, against them on the allegations that the construction was not being raised in accordance with the permission granted under No.

Due these reason, the construction was stopped at that time.

These facts have not been denied.

The builder did not produce any demand letter to show that the complainants were defaulter in payment of the instalment.

In the Written Reply, which was filed on 18.08.2011, it has been stated that the complainants had paid about 84% of the sale price although 95% of the construction was completed and up to this level of construction, they had to pay 92% of sale price.

But in the absence of any demand letter, issued to the complainants, they cannot be said as a defaulter.

Otherwise also no evidence has been filed in respect of completion of the construction.

15.

Under Clause-9 (a) of Ownership Agreement, promised date of possession was December, 2005.

Till today, possession of the unit, complete in all respect has not been delivered. delivered.

State Commission ought to have awarded delayed compensation to the complainants.

Supreme Court, in Wg.Cdr.

Arifur Rahman Khan Vs.

DLF Southern Homes Pvt.

Ltd., (2020) 16 SCC 512, held that the buyer is entitled to delayed compensation for delay in possession, in the shape of interest @ 6% per annum.

The complainants are entitled for delayed compensation on their deposit, from the January, 2006 till the possession of the Unit, complete in all respect, is delivered to them.

O R D E R In view of aforementioned discussions First Appeal No.281 of 2015, is partly allowed with cost of Rs.one lac.

The builder is directed to pay delayed compensation in the shape of interest @6% per annum on the deposit of the complainants, from the January, 2006 till the possession of the Unit, complete in all respect, is delivered to them.

First Appeal No.330 of 2015 is dismissed.

The order of State Commission and this Commission will be complied with within two months from today.

Failing which, the builder shall be liable to pay delayed compensation in the shape of interest @9% per annum, on the deposit of the complainants, after two months. ......................J RAM SURAT RAM MAURYA PRESIDING MEMBER