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Satish Kumar Gajanand Gupta vs. M/s Srushti Sangam Enterprises (India) Ltd & Ors dated 2012-07-03

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI
 
CONSUMER COMPLAINT NO. 296 OF 2011  
 
Satish Kumar Gajanand Gupta
S/o Late Shri Gajanand Gupta
R/o F-4, Nice Apartment
17/41, West Punjabi Bagh
New Delhi-110026                                            …      Complainant
Versus
1.      M/s Srushti Sangam Enterprises (India) Ltd.
          Through its Chairman & Managing Director
          Flat No. 5, Kalpana Srushti
          Plot No. 99, 13th Road, Tilak Nagar
          Chembur, Mumbai-400089
 
2.      Chinnaiash E.V. Gowada
          National Paradise, D-615
          Plot No. 290/1, Panvel
          Navi Mumbai                                             …      Opposite Parties
 
BEFORE :
          HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER
          HON’BLE MR. S.K. NAIK, MEMBER
 
For the Complainant             :         Mr. Shailendra Bhardwaj, Advocate
 
Pronounced on : 3rd July, 2012
 
                                                  O R D E R
 
PER S.K. NAIK, MEMBER
1.      Shri Shailendra Bhardwaj, Advocate, learned counsel for the complainant, has been heard on admission of this original complaint.
2.      Admittedly, the complainant, a resident of Delhi, is a businessman.  His business, apart from Delhi, extends to Mumbai.  It is his own case that in order to save on the expenditure incurred by him on his stay in hotels at Mumbai during his business trips, he was interested in buying some flats in Mumbai.  He booked two flats with the opposite party-builder and paid Rs.33,86,400/- for Flat No. 104 on 1st floor, B-Wing, Building No. 92, Srushti Parivar, 13th Road, Tilak Nagar, Chembur, Mumbai and further paid Rs.30,00,000/- for Flat No. 105 in the same building on 29th of August, 2008.  The parties entered into sale agreement as well, according to which the possession was to be handed over by December, 2010.  However, despite repeated visits to Mumbai and personally approaching the opposite party-builder, they have failed to deliver the possession of the flats.  Contending that this amounts to gross deficiency in service and unfair trade practice, the counsel submits that it is a fit case for notice being issued to the opposite parties. 
3.      We have considered the contention raised by the learned counsel but we do not quite agree with his plea as the complainant, in our view, does not qualify to be a ‘consumer’ as defined in Section 2(1)(d) of the Consumer Protection Act, 1986.  We say so because as per his own admission the complainant is a resident of Delhi and he intends to purchase some permanent accommodation at Mumbai for his stay during his business visits to save on the expenditure incurred in hotels.  For that purpose, he has booked not one but two flats.  Clearly, the transaction is relatable to his business activity and, therefore, it will fall in the category of commercial purpose, which has been taken out of the purview of the Consumer Protection Act, 1986 vide Amendment Act No. 62 of 2002 effective from 15th of March, 2003.  This Commission in the case of Jag Mohan Chhabra & Anr. V. DLF Universal Ltd. [IV (2007) CPJ 199 (NC)] in a somewhat similar case had held that the complaint was not maintainable under the Consumer Protection Act, 1986.  It had, therefore, disposed of the complaint with liberty to the complainant to approach Civil Court.  The said order has since been upheld by the Hon’ble Supreme Court, as Civil Appeal No.6030-5031 of 2008 filed before the Supreme Court stands dismissed vide the Apex Court’s order dated 29.09.2008.  In the facts of the present case, we maintain the same view and while dismissing the complaint as not maintainable reserve the right of the complainant to approach the appropriate Civil Court to seek his remedy, if so advised.  He may take advantage of the ruling of the Supreme Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute [II (1995) CPJ 1 (SC)] to seek exclusion of the time spent in prosecuting this complaint before this Commission.
4.      The complaint, accordingly, is dismissed in limine. 
 
 
                                                                                                              Sd/-
     (JUSTICE R.C. JAIN)
PRESIDING MEMBER
 
 
Sd/-
     (S.K. NAIK)
MEMBER
Mukesh   

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