Anil Dutt vs Business Park Town Planners Ltd , Laxmi Engineering Works Vs. Psg Industrial Institute , 1995 3 Scc 583

THE whole controversy pivots around the question, "Whether the complainant is a ''consumer '', under the Consumer Protection Act, 1986 ".

THE instant complainant is filed by Sh. Anil Dutt, the complainant. The facts germane to the present case are these. M/s Business Park Town Planners Ltd. (BPTP), the opposite party, in this case, on 26.02.2006, gave an advertisement inviting applications for purchase of Plots, Flats, Villas and Apartments at Parkland, Faridabad. The complainant indicated his interest for the purchase of 10 plots, each admeasuring 300 sq.yards, for all his family members, so that they can live in one vicinity. It was agreed that the complainant would pay a sum of Rs.32,40,000/ per plot. The complainant accordingly paid Rs.7,50,000/ initially, for each plot, i.e. total payment of Rs.75,00,000/ for 10 plots. The opposite party accepted this amount on 05.05.2006, and issued Receipts, mentioning "Provisional Registration for a Unit in Future Project 07 ". The opposite party assured the complainant that delivery of possession of plots would be given at the earliest, and in no way, beyond thirty months.

As there was delay on the part of the opposite party to provide the plots, the complainant and his family members withdrew their interest in the said plots and, therefore, vide letter dated 15.12.2007 requested the Opposite party to re group all the aforesaid plots and restrict to only four plots, admeasuring 300 sq.yds., each, and adjust the entire advance paid to the opposite party, towards those four plots. On 06.06.2008, the opposite party allotted only three plots, of different size, admeasuring 327, 327 and 345 sq. yards, respectively, and the complainant was asked to pay the amount in respect of those plots. The fourth plot was not allotted. On 22.07.2008, OP allotted another plot bearing No.W4 11, admeasuring 303 sq. yards and directed the complainant to pay Rs.9,33,193/ , by 06.08.2008. The above said four plots were allotted unilaterally, without any confirmation /consent/ approval of the complainant. The complainant was to pay a sum of Rs.54,60,000/ against the entire sale consideration of 4 plots @ Rs.10,800/ per sq. yards. The complainant again paid a sum of Rs.32,87,425/ , vide demand letter dated 12.08.2008, received from the OP.

HOWEVER , on 13.08.2008, the complainant further demanded a sum of Rs.70,17,651/ , despite having received the payment of Rs.1,07, 87,425/ , till then. Out of the total amount of Rs.1,29,60,000/ due and payable against the four plots of 300 sq.yards each, only a sum of Rs.21,72,575/ was paid. No details were given for the said demand. Ultimately, the present complaint was filed on 31.05.2012, with the following prayers : "a) to deliver possession of all the plot Nos. S5 09, V3 02, S3 09 and W4 11, located at Parklands, Faridabad, after removing all the deformities as pointed out in the communications; b) in alternative, deliver possession of other 4 plots in favour of the complainant admeasuring 300 sq.yds each, at Parklands, Faridabad. c) Award interest on the amount lying deposited of Rs.1,07,87,425/ with interest @ 18% till the delivery of actual possession of the four plots, without any deformity. d) Award Rs.25,00,000/ towards compensation for the mental agony/harassment and inconvenience suffered by the complainant for the last over six years. e) award costs of this proceedings f) to pass such other and further order which may deem fit and proper ".

THE Opposite Party contested the complaint. It has called into question the jurisdiction of this Commission. Consequently, we are bound to decide this point, first of all, as per law laid down by the Hon ''ble Apex Court in the case of "K.Sagar Vs. Managing Director, Kiran Chit Fund, Mushridabad Vs. A. Bal Reddy, 2008 (7) Supreme Court Cases, 166. We have heard counsel for the parties. The learned counsel for the OP vehemently argued that their lies no rub in having four plots for the whole of the family. He argued that the family consists of four people and the complainant wants to have four plots, for separate living by each of the member. The learned counsel pointed out that the Opposite party is deficient. He alleges that OP has allotted plots which were situated close to high tension wires.

WE find it extremely difficult to countenance such contention, for the following reasons. There is a letter, dated 13.08.2008 written by the complainant himself to the Opposite Party, the relevant paras of which are reproduced, as follows : 1. In addition to above this plot has overhead high tension cables passing through which drops its total re sale value. I personally feel that my investment/money is stuck up in this plot and which is of no use to me. 2. In addition to above this plot has overhead high tension cables passing through which drops its total re sale value. 3. I would also like to point out that next to this plot is a village boundary wall separating village with BPTP area is a major drawback of this plot which drops its re sale value.

THIS is also interesting to note that all the amount has been paid by the complainant. There is not even an iota of evidence which may go to show that the said amount or part of it, was paid by any other member of the family. The above said letter clearly goes to show that the above said plots were purchased for re selling the same. Consequently, the complainant is not a ''Consumer '', as per Section 2 (1)(d)(ii), which is reproduced as follows : "(d) "Consumer " means 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 or partly promised, or under any system of deferred payment, when such use is made with the 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 a 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 of such services for any commercial purpose]; Explanation - For the purposes 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 his livelihood by means of self employment ".

In Chilkuri Adarsh Vs. ESS ESS VEE Constructions, III (2012) CPJ 315, it was held that this has been consistent view of this Commission. It has held that even when a consumer has booked more than one unit of residential premises; it amounts to booking of such premises for investment commercial purpose. This Commission in the case of Jagmohan Chabra and another Vs. DLF Universal Ltd., IV (2007) CPJ 199, in a somewhat similar case held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed 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 6031 of 2008, filed before the Supreme Court stands dismissed vide the Apex Court ''s order dated 29.09.2008.

IN Bihar School Examination Board Vs. Suresh Prasad Sinha, IV (2009) CPJ 34 at 36(SC) : AIR 2010 SC 93 : JT 2009 (11) SC 541, (2009) 8 SCC 483, the Hon ''ble Apex Court, held : "Consumer - Definition of : According to the definition of ''consumer '' in Section 2(d) of the Act, a person who hires or avails of any services for a consideration, is a consumer. The following category of service availors will not be consumers : (i) persons who avail any service for any commercial purpose; (ii) persons who avail any free service; (iii) persons who avail any service under any contract of service. A consumer is entitled to file a complaint under the Act if there is any deficiency in service provided or rendered by the service provider ".

AGAIN , this Commission in M/s. Harsolia Motors Vs. National Insurance Co. Ltd., in First Appeal Nos. 159, 160 and 161 OF 2004, decided on 03.12.2004, has held, as under: "In support of his submission, learned counsel Sh.Sharma, referred to the judicial dictionary meaning of the words ''commercial purpose '' which is as under: "The word "commercial " according to the Oxford Dictionary means viewed as a matter of profit and loss. The word "purpose " means "object which is in view or for which is made ": "aim " "amend ". The word "commercial purposes " would, therefore, cover an undertaking the object of which is to make a profit out of the undertakings. (Municipal Board, Unnao Vs. The State of U.P. 1957 All. L.J. 479 at 498) ". "According to Oxford dictionary, it means "Viewed as a matter of profit or loss ". "The word "commercial " is defined in the Concise Oxford Dictionary, New Edition of the 1990, at page 227, the word "commercial " is defined as ''having profit as a primary aim rather than artistic etc. value '' (Vide Dena Bank, Ahmednagar Vs. Prakash Birbhan Katariya, AIR 1994 Bom 343 at 345) ".

In Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583, the Hon ''ble Apex Court, held, as under : "The National Commission appears to have been taking a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit ", he will not be a ''consumer '', within the meaning of Section 2 (d) (i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion - the expression "large scale " is not a very precise expression - Parliament stepped

in and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993 ".

ALSO , see Rajasthan State Industrial Development and Investment Corporation Vs. Diksha Enterprises, III (2010) CPJ 333 (NC) and this Commission ''s judgment in RP 1129 OF 2012, Shri Harnam Singh Vs. Shalimar Estate Pvt. Ltd. and Ors., decided on 29th May, 2012.

CONSEQUENTLY , we find that the present complaint is not maintainable. It is clear that the intention of the complainant is to re sell the said flats. These flats were not purchased for personal use of consumer. The complaint is, therefore, dismissed. The complainant is at liberty to approach the appropriate forum to seek redressal of his grievance. He may take advantage of the ruling of the Supreme Court in Laxmi Engineering Works -vs PSG Industrial Institute, (1995) 3 SCC 583, to seek exclusion of time spent before this Commission.