Ashish Ahuja vs GOLD CAUSE CONSTRUCTIONS PVT LTD

ASHISH Ahuja has filed the present complaint against the opposite party alleging deficiency in service in respect of the allotment of shop/commercial space on the first floor of proposed ''Paradise Mall'' to be developed by the opposite party. The issue is since the complainant has booked a commercial purpose, whether he can be termed as ''Consumer'' in view of Section 2 (1) (d) of the Consumer Protection Act, 1986 ( in short, the Act)

WE have heard learned counsel for the complainant and perused the complaint. Before adverting to the submissions made on behalf of the complainant, it would be useful to have a look on the definition of "Consumer" as provided under section 2 (1) (d) of the Act, which reads as under: (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 purposes;

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.

ON reading of the above, it is clear that in case of hiring or availing of service, a person is a consumer who hires or avails of services for consideration but does not include a person who avails of the services for commercial purpose. The explanation to section, however, gives a restrictive definition to the ''Commercial Purpose" by proving that for the purpose of this section, commercial purpose does not include the services availed by the person exclusively for the purpose of earning livelihood by means of self employment. Learned counsel for the complainant has referred to the judgment of Supreme Court in the matter of Laxmi Engineering Works Vs. P S G Industrial Institute, 1995 3 SCC 583and submitted that it is well settled that whether a person is a consumer or not is a question of fact which is to be decided on the basis of available facts. Learned counsel has taken us through the complaint and submitted that complainant has categorically stated he is self employed in their fashion business and running a store named ''Fashion and Trends" and he had booked the commercial space in ''Paradise Mall'' with a view to open retail shop of fashion accessories for the purpose of earning his livelihood by way of self -employment. Therefore, unless there is some evidence to the contrary, the case of the complainants is squarely covered by the Explanation under section 2 (1) (d) of the Act. In support of this contention, learned counsel for the complainants have relied upon the judgments of Supreme Court in the matters of Laxmi Engineering Works Vs. P.S.G. Industrial Institute, 1995 3 SCC 583, Morgan Stanley Mutual Fund Vs. Kartick Das, 1994 4 SCC 225 and Lata Constructions and Others Versus Dr. Rameshchandra Ramniklal Shah and Another, 2000 1 SCC 586.

WE have carefully considered the submissions made on behalf of the complainant and perused the record. It is undisputed that the complainant alongwith his wife has been running family business of retail fashion accessories. It is also not disputed that the consumer complaint has been filed in respect of alleged deficiency in service in respect of booking of shop, which is a commercial premises. Therefore, unless the case of the complainant is covered within the Explanation, which provides restricted definition for commercial purpose, the complainant cannot be termed as "Consumer" as envisaged under section 2 (1) (d) of the Act. The complainant has alleged that he is presently running the business under the name of ''Fashion and Trends'' in which he is self employed for earning livelihood and he has booked the commercial space in the project undertaken by the opposite party with a view to expand its business. Therefore, he is squarely covered under the restrictive definition of commercial purpose given in the Explanation to section 2 (1) (d) of the Act.

WE do not agree with the above contention. On careful reading of the Explanation to Section 2 (1) (d) reproduced above, it is clear that the restrictive definition of commercial purpose as given in the Explanation, would be applicable only if the person availing services establishes two conditions : (a) that the services were availed by them exclusively for the purpose of earning livelihood ; (b) that too by self employment. No doubt the complainant has pleaded that at the time of hiring / availing services of the opposite party, the complainant was self employed in the family business of retail fashion accessories but he had not pleaded nor it could be his case that he availed of the services of the opposite party exclusively for the purpose of earning their livelihood particularly when it is the admitted case of the complainant alongwith his wife has been running business. Thus, it is clear from the pleadings that at the time of availing of subject service relating to commercial space, the complainant was gainfully running his family business and earning his livelihood. Thus, he cannot claim benefit of the Explanation giving restricted meaning to the term ''Commercial Purpose".

IN view of the discussion above, it is clear from the allegations in the complaint that the services of the opposite party were availed in relation to commercial purpose. As such, the complainant cannot be termed as ''consumer'' for the purpose of the Act. Since the complainant is not consumer, he cannot maintain the consumer complaint. Consumer complaint is accordingly dismissed. The complainant shall be at liberty to avail of proper remedy by moving appropriate forum, if he so desires.