Judgment:
V.K. Gupta, J.
Oral:
1. This appeal by the Complainant of the case No. 543/08 is directed against the order dated 26.2.10 of the District Consumer Forum (East), Saini Enclave, Delhi, by which the complaint was dismissed.
2. Brief facts are that the respondent/OP allotted a space No. G-5-A of Area 401 Sq. Fts. Approx. situated on the ground floor in the proposed Aditya Tower, Laxmi Nagar Delhi-110092 @ 1,826 per sq. fts., in pursuance of the application made by the appellant/complainant. Complainants have already paid an amount of Rs. 6,65,000/- to the respondent and still ready and willing to pay the remaining amount to the Respondent. The respondent claimed a ground rent from the complainant vide letter dated 21.9.07 which comes to Rs. 1,08,570/- for this area and the complainant requested the respondent for the proper passage and entry. Despite receiving the same, the respondent has not provided the passage as well as entry and still there is no passage nor the stairs constructed by the respondent. In Para 11 of the complaint, it is specifically stated that the space is for their office and the respondent received the entire payment. Complainant seeks direction to provide the proper passage or entrance to him and a compensation of Rs. 5 Lac together with Rs. 22,000/- as litigation charges.
3. OP/Respondent has filed written statement and denied all the allegations and the complaint is barred by law of limitation. The possession has not been taken by the complainants despite offer to take the possession was made by the respondent subject to fulfillment of condition vide letter dated 23.2.1994. The complaint is bad in Law in as much as the allotment letter is in the name of three persons namely Vijay Bhatia, Neelam Bhatia and one Sh. R.P. Bhatia but the R.P. Bhatia has not been made one of the complainant in the said complaint, therefore, it is not maintainable. The property in question is a commercial property, therefore, complainant/appellant is not a consumer within the meaning of 2(10(d) of the Consumer Protection Act 1986. The complainants have not even made full payment of agreed space consideration to the respondent despite several reminders. Further the complaint is bad for non-joinder of the local authority i.e. DDA or MCD. The allotment letter dated 29.9.89 was signed by Sh. R.P. Bhatia as well as Sh. Vijay Kumar Bhatia but it was not signed by Ms. Neelam Bhatia. Therefore, Neelam Bhatia, who is one of the complainants, has not signed the agreement. The complainant is not entitled to claim any relief.
4. The District Forum vide order dated 26.2.10 dismissed the complaint.
5. Being aggrieved by the order dated 26.02.10 of the District Forum, Complainants preferred this appeal.
6. We have heard Sh. R.K. Tripathi, proxy Counsel appearing on behalf of the appellant and Sh. Praveen Ashok, Proxy Counsel for the Respondent and perused the material on record.
7. At the outset, it has been pointed out by Ld. Counsel for the Respondent that the complaint is not in accordance with the Law in as much as it has been filed by two person Sh. Vijay Bhatia and Smt. Neelam Bhatia but Smt. Neelam Bhatia has not signed the agreement, therefore, no allotment has been made in favour of Smt. Neelam Bhatia. Our attention has been invited towards the photocopy of the allotment letter, paper No. 52, which goes to show that the allotment has been made to Sh. R.P. Bhatia and Sh. Vijay Bhatia who have put the signatures on the said agreement and it is also signed by the Respondent. This allotment letter does not bear the signature of Smt. Neelam Bhatia who is one of the co-complainant of this case. Under these circumstances, we are in complete agreement of the findings of the District Forum that complaint is bad in law in as much as it is filed by Smt. Neelam Bhatia who is not a party to the agreement. Obviously, it cannot be said that there was allotment in favour of Smt. Neelam Bhatia.
8. It is further stated by the Ld. Counsel for the Respondent that the property in question is an office space. Therefore it is beyond the purview of the Consumer Protection Act 1986 as the complainants cannot be said to be the consumer.
9. In Para 11 of the complaint, it is very categorically admitted that it is a space for office which has been allotted by the respondent in favour of Sh. Vijay Bhatia and Sh. R.P. Bhatia. It would not be worthy to mention that Sh. R.P. Bhatia has not filed the complaint as he is not a co-complainant. It is admitted by both the parties that the property in question is an office space. In the entire complaint, there is no averment at any point of time that it is for livelihood of the complainants or one of the complainants. NO assertion has been made by any of the complainant, therefore, the property in question is a commercial property, which is beyond the purview of the Consumer Protection Act, 1986.
10. The District Forum has mentioned in the judgment that the OP has filed the judgment dated 17.1.09 of Dr. Kamini Lau, Addl. Distt. Judge, Central district regarding the Suit No. 405/04, Sh. Arun Dua Vs Aggarwal Associates (Promoters) Ltd. in respect of specific performance, mandatory injunction and recovery of damages regarding the flat similar and identical to the complainants, the said suit was dismissed. The complainants have filed the complaint in the Consumer Forum just like the suit of a specific performance and damages. The adjudication of complex factual position requires that the matter should be examined by the civil court. Further, the judgment as herein above mentioned has dismissed the suit of other persons relating of the same property and the District Forum has very rightly and correctly recorded the findings that there is no merit in the complaint, to which we agree.
11. Under these circumstances, the appeal is dismissed.
12. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and one copy be sent to the District Forum, New Delhi, thereafter the file be consigned to Record Room.
13. The FDR, if any, be returned to the appellant as per rules.