BLB LTD. & ANR. vs K.K. PROJECTS

The above noted complainants have filed consumer complaint alleging deficiency of service on the part of the opposite party builder in respect of office space / unit no. 1901 to 1908 on the 19 th Floor of Tower ''C'' in ''Delhi One Project'' undertaken by the opposite party.

On perusal of the complaints, prima facie a question arises whether the complainant companies are consumers as defined under section 2 (1) (d) of the Consumer Protection Act ( in short, the Act) and if not, whether the consumer complaints are maintainable?

Learned counsel for the complainants Mr P Nagesh, has drawn our attention to the definition of ''consumer'' as provided in section 2 (1) (d) of the Act, in particular the Explanation to the said section and contended that cases of the complainants are covered by the Explanation. Expanding on the argument, learned counsel for the complainants has contended that the above referred complainants who are occupying rental premises to run and operate their offices and were looking for their own premises to shift the entire offices at one place were doing so to ensure their livelihood. Therefore, booking of commercial units in the proposed project undertaken by the opposite party would not come in the way of the complainant companies to maintain the consumer complaints. In support of his contention, the learned counsel for the complainant has referred to the judgment of the Hon''ble Supreme Court in case '' Karnataka Power Transmission Corporation and Anr., vs Ashok Iron Works Pvt. Ltd., (Civil Appeal no. 1879 of 2003) and H V Balachandra Rao vs Karnataka Power Transmission Corporation and Anr . (Civil Appeal no. 7784 of 2002), decided on 9 th February 2009.

In order to appreciate this contention, it is necessary to have a look at section 2 (1) (d) of the Act. (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 commercial units 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 case is covered by the Explanation to Section 2 (1) (d) of the Act, which gives restricted meaning to the term ''commercial purpose.

In order to get benefit of the Explanation, the complainants are required to prove that they had booked the units in question exclusively for the purpose of earning livelihood by way of self-employment. The use of the word ''earning livelihood'' makes it clear that the benefit of the Explanation can be extended only to a natural person and not to a distinct person. The complainants admittedly are private limited companies. Therefore, the restricted definition of "Commercial Purpose" given in the Explanation cannot be extended to them. Otherwise also, in paragraph 1 of the respective complaints, it is categorically stated that the complainants companies at the time of booking of the units were already engaged in profitable business albeit in rented accommodation. Therefore, it cannot be said that the commercial units which are subject matter of the complaints were booked exclusively for the purpose of earning livelihood by way of self-employment. Thus, by no stretch of imagination, the benefit of Explanation can be extended to the complainants.

So far as the judgment cited by the complainant is concerned it relates to a consumer complaint filed prior to the amendment of Section 2 (1) ( d) (ii) which came into force in March 2003 and carved out an exception in the definition of ''consumer'', i.e.,''includes any beneficiary of such service 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 period [but does not include a person who avails of such services for any commercial purpose]''. [ Explanation - For the purpose 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 purpose of earning his livelihood by means of self-employment;].

In view of the discussion above, it is clear that complainants have admittedly availed of the services of the opposite party for commercial purpose i.e. booking / allotment of commercial units in proposed project undertaken by the opposite party. Thus, the complainants are not covered under the definition of ''consumer''. As such, they have no locus standi to maintain the consumer complaints. The consumer complaint is, therefore, rejected. It is clarified that this order will not come in the way of the complainants to avail of their legal remedy by moving appropriate forum.