MUKUL DALMIA Vs. DLF COMMERCIAL DEVELOPER LTD

JUDGEMENT

(1.) BY this order we propose to dispose the preliminary objection taken by the opposite party on maintainability of the consumer complaint filed by the complainant Mukul Dalmia.

(2.) BRIEFLY relevant facts for the purpose of deciding the objection are that the complainant on 15.12.2005 booked shop No.1 in Tower B measuring 633 sq.ft in the proposed DLF Tower at Jasola. At the time of booking, the complainant paid a sum of Rs. 19,39,275/ - as registration / application money. On 09.06.2006 Retail / Commercial Space Buyers Agreement was executed between the complainant and the opposite party. The complainant has paid all the instalment as per payment plan in time and in all he has paid a sum of Rs. 1,22,18,417/ - against the consideration amount of the shop. Grievance of the complainant is that though he has complied with his part of contract, the respondent -service provider is now offering him possession of the shop with much lesser area, that is, 565 sq.ft. It is alleged that at the time of booking of the shop, printed maps were furnished by the respondent in which the super area of shop no.1 of Tower B was shown as 663 sq.ft. The respondent, however, has subsequently altered the construction plan and carved out two more shops bearing no.23A and 24A on the ground floor which has resulted in reduction in the area of the shops at the ground floor. This according to the complainant is deficiency in service which has led to filing of the complaint. Respondent in his reply to the amended complaint has taken a preliminary objection that instant consumer complaint is not maintainable for the reason that the complainant had booked the shop in question for commercial purpose which is apparent from his admission in para 18 of the complaint wherein the complainant has alleged that he is a bonafide investor who had invested in the shop in the year 2005. It is alleged in the written statement that from the above, it is obvious that services of the respondent availed by the respondent under the agreement were for commercial purpose. As such, the complainant in view of the definition of 'consumer' under section 2 (d) of the Consumer Protection Act (in short, 'the Act ') is not a consumer.

(3.) SHRI Manish Aggarwal, Advocate for the complainant on the contrary has contended that booking of shop in a commercial project by itself cannot be termed as availing service of the respondent for commercial purpose. He has argued that the purpose for which the shop was booked is a question of fact which is to be decided in the facts and circumstances on the basis of evidence produced on record. Thus, it is argued that at this nascent stage, without any factual evidence on record, the complaint cannot be rejected.