Ashwani Khanna vs GOLD CAUSE CONSTRUCTIONS PVT LTD

BY this order, we propose to dispose the issue of maintainability of the above noted consumer complaints involving similar question of law and facts.

THE above mentioned complainants have been filed by the respective complainants through Mr. Arshdeep Singh and Mr. Manish Jha, Advocates. Complaint No. 200 of 2015 has been filed by the individuals, while complaint No. 202 of 2015 has been filed by Karta of Hindu Undivided Family ( H.U.F).

BRIEFLY stated allegations in the complaints are that the complainants pertaining to respective complaints were engaged in their respective business being conducted from the running premises. The complainants with the intention to shift their business from rented premises to self -owned premises booked shops / commercial space in ''Paradise Mall'' , the development project undertaken by the opposite party. According to the complainants, the opposite party have committed deficiency in service in relation to the aforesaid booking of shops / commercial space. Thus, the complaints. At the outset, the question which arises for consideration is whether the complainants are "Consumers" as envisaged under section 2 (1) (d) of the Consumer Protection Act, 1986 ( in short, the Act)? and if not, whether the above consumer complaints are maintainable?

LEARNED counsel for the complainants have contended that the question whether the person is a consumer or not is a question of fact which has to be decided on the basis of the available facts. Learned counsel has taken us through the complaint and submitted that as per the allegations, the complainants are running their business in a rented premises. It is contended that the complainants have categorically alleged that they booked the shop with the intention to shift their business from rented premises to self owned premises. From this, it is evident that purpose of booking of shop is not to earn profit by sale of shop but to shift the business of the complainants to their own premises for the purpose of earning livelihood by way of self employment. Thus, it is contended that case of the complainants is squarely covered under the Explanation to section 2 (1) (d) of the Act. In support of his contention, learned counsel for the complainants has relied upon the judgments of the 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.

IN order to appreciate the contention of learned counsel for the complainants, it is necessary 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 qua the dispute relating to hire / availing of service, a person is a consumer who hires / avails service for consideration but does not include a person who has availed service for commercial purpose. Admittedly, the complainants above noted have availed the services of the opposite party in relation to a commercial purpose i.e. booking of shop / commercial space in the proposed project undertaken by the opposite party. Therefore, in order to be termed as ''consumer'', the complainants are required to show that their cases are covered by the Explanation to Section 2 (1) (d) of the Act, which gives restricted meaning to the term ''commercial purpose.

IT is not disputed that the instant consumer complaints have been filed in respect of deficiency in service regarding booking of shops / commercial spaces in the upcoming project undertaken by the opposite party. On reading of the definition of ''consumer'', reproduced above, it is clear that qua the dispute relating to hire / availing of service, a person is consumer who hires / avails service for consideration but does not include a person who has availed service for commercial purpose. Admittedly, the complainants booked the shops / commercial spaces, therefore, the services availed by them are in respect of commercial purpose. As such, the complainants cannot be termed as consumers unless their case is covered within the Explanation which restricts the definition of commercial purpose.

THE complainants have alleged that they are presently running their business in rented premises and they wish to shift their business to the premises owned by them. This by no means will bring the complainants within the purview of Explanation to section 2 (1) (d) of the Act. In order to take advantage of the Explanation, complainants are required to plead and prove that they availed of the services of the opposite party exclusively for earning livelihood by way of self employment. Admittedly, at the time of booking of the shop, the complainants were running profitable business. Therefore, it can be safely inferred that complainants at the time of availing services of the opposite party were gainfully engaged in their business and were employed and earning their livelihood. As such, it cannot be said that complainants have booked the shop in the project undertaken by the opposite party exclusively for the purpose of earning livelihood by way of self employment.

LEARNED counsel for the complainants has heavily relied upon the observations of the Hon''ble Supreme Court in para 11 of the judgment in Laxmi Engineering Works to support his contention that the case of the complainants falls within the Explanation to section 2 (1) (d) of the Act. Relevant para 11 of the judgment reads as under: "11. Now coming back to the definition of the expression ''consumer'' in Section 2(d), a consumer means insofar as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression ''resale'' is clear enough. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. ''Commercial'' denotes "pertaining to commerce" (Chamber''s Twentieth Century Dictionary); it means "connected with, or engaged in commerce; mercantile; having profit as the main aim" (Collins English Dictionary) whereas the word ''commerce'' means "financial transactions especially buying and selling of merchandise, on a large scale" (Concise Oxford Dictionary). 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. The explanation excludes certain purposes from the purview of the expression "commercial purpose" a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others'' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition of expression ''consumer''. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self -employment, such purchaser of goods is yet a ''consumer''. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self -employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self -employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto -rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto -rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self -employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words".

ON reading of the above, it is clear that the Supreme Court has explained the true import of the words "exclusively for the purpose of earning livelihood by means of self employment" by giving illustrations. Hon''ble Supreme Court, however, by no means held that if a person already self employed avails of service for commercial purpose, he would be covered under the Explanation by taking a plea that he availed of the services with a view to shift his business venue. Thus, in our view, the above judgment is of no avail to the complainants. So far as other two judgments in the matters of Morgan Stanley Mutual Fund and Lata Constructions and Others are concerned, those are based upon entirely distinct facts and are not applicable to the facts of the case.

IN view of the discussion above, it is evident from the pleadings that services of the opposite party no.1 were allegedly availed by the complainants for a commercial purpose i.e. acquiring a shop. Therefore, the complainants are not the consumers and as such, they have no locus standi to maintain the consumer complaint. Consumer complaints are accordingly dismissed. The complainants shall be at liberty to avail of proper remedy by moving appropriate forum, if they so desire.