IMPORTANT POINT
Complaint concerning purchase of commercial space is not covered under explanation attached to Section 2(1)(d) of Consumer Protection Act, 1986.

ORDER

Prem Narain, Presiding Member—This consumer complaint has been filed by the complainants Anurag Rudra @ Mr.Anurag Tiwary and anr. against the opposite parties M/s. ABW Infrastructure Ltd. & anr.

2. The brief facts of the complaint are that the opposite parties floated a scheme for purchase of “retail space” in the proposed IT park/gateway tower. The complainants jointly booked “retail spaces” having unit Nos.025,026 and 027 at ground floor admeasuring aggregate tentative total super area 3099 sq.ft. @Rs.8,680.85 per sq.ft. amounting to Rs.2,69,01,957/-. The complainants paid total amount of Rs.2,78,99,482/- including the service tax on 17.06.2013. The buyers’ agreement was executed on 17.06.2013. The period of competition was three years. The opposite parties under the scheme of “assured investment return plan” issued 28 post-dated cheques starting from June, 2013 till September, 2015 to each of the complainants after deducting TDS. The complainant received payment of assured return till August, 2015. The complainant also received the September, 2015 cheque but the same bounced. The complainant filed complaint before the competent court for the bouncing of cheque for September, 2015. The complainant has now filed this complaint seeking refund of the amount paid along with 24% p.a. interest beyond September, 2015 till actual payment.

3. As the written statement was filed with delay, the same was not accepted and the complainant was directed to file the evidence by way of affidavit vide order dated 15.2.2017. On the day of hearing the learned counsel for the complainant was heard as none appeared on behalf of the opposite parties. Opposite parties have filed written submission. It has been stated that the opposite parties have already paid the assured return by way of post-dated cheques and have never denied the payment of assured return to the complainants. The progress in the project was halted due to an order of Hon’ble Supreme Court and also due to the fact that account of the project was frozen by the CBI. Thus, these were force majeure conditions and therefore, the opposite parties cannot be held responsible for delay. It has been requested to dismiss the complaint.

4. From the record, it becomes clear that the “retail space” in terms of units in the IT Park/Gateway Tower is in the form of commercial space. The complainant No.1 is a NRI and has stated in the complaint that he wanted to settle in India and to start his business for earning his livelihood. In para 8 of the complaint the following is mentioned:-

“8. That the complainant no.1 with future ambition in mind to setup his own business/establishment for livelihood for settling in India and lead happy married life decided to book a retail space for the said purpose in the above mentioned project of the opposite party on the assurance of delivering possession within three years.”

5. From the above, it is clear that the complainant has used the word livelihood just to satisfy the provision of the Consumer Protection Act, 1986. The fact is that the complainant had booked these units for pure investment purposes as the complainant has not mentioned anything in respect of his proposed business for earning livelihood. Otherwise also, there was no question of problem of earning livelihood as he was a NRI settled in USA and was earning in US $. He was able to pay huge amount of Rs.2,78,99,482/-, in one go and this fact clearly speaks that he may not be having any problem for his livelihood. Moreover, had there been only one unit booked, the question of complainant purchasing this unit for earning his livelihood would have been considered to some extent. Purchasing three units without mentioning the nature of the purposed business for earning livelihood cannot be considered as true reflection and intention of the complainant. Clearly, the case of the complainant is not covered under the explanation attached to Section 2(1)(d) of the Consumer Protection Act, 1986. Hon’