JIWAN KANT JAIN vs VATIKA LTD.

Shri J.K. Jain, the complainant herein has filed instant consumer complaint against M/s Vatika Ltd. alleging deficiency in service on the part of the opposite party pertaining to buyer-builder agreement executed by the opposite party developer with the complainant in respect to two apartments in the development project undertaken by the opposite party.

On perusal of the complaint, prima facie it appears that the complainant is not a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. Therefore, we have heard the arguments on this aspect of the matter. Section 2 (1) (d) of the Act defines the term "consumer" for the purpose of the Act. As the instant case has been filed on the allegation of deficiency in service on the part of the opposite party, Section 2 (1) (d) (ii) of the Act is relevant, which is reproduced 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 the section while defining the term consumer vis-a-vis the service provider has carved out an exception by excluding a person who avails/hires of services of someone for commercial purpose from the definition consumer.

Learned counsel for the complainant has contended that merely because the complainant had booked two flats, it would not lead to conclusion that he has booked the flats for commercial purpose. Actually the complainant had booked the flats for his own residence as well as residence of his family members. We do not find merit in this contention.

Ordinarily booking of two residential units by the complainant would not lead to a presumption that the units were booked for commercial purpose. The purpose of booking much than one apartment is a mixed question of law and fact and this can be determined only on the basis of the evidence led by the parties. However, in the instant case from the allegations in the complaint itself it is obvious that the flats in question were booked by the complainants with a commercial motive. At this stage, it would be pertinent to reproduce paras 3 & 4 of the complaint, which are reproduced as under: - "3. That the Opposite Party as well as the broker represented the Complainant that the apartments in the said project are a prized possession and shall have an extremely good resale value. The opposite party as well as the broker assured the complainant that the price of the apartments in the said project ''Boulevard Residences'' shall appreciate at least 50% immediately upon offer of possession.

That the complainant was further assured by the opposite party that the opposite party shall facilitate the sale of the flat(s) booked/purchased by the complainant at an appreciated value, in case the complainant decided to sell the same either after making the full and final payment, or even during the payment process.''

On bare reading of the above two paragraphs in the complaint it is clear that the complainant has booked two flats believing the representation by the opposite party and the broker that the location of property was very good and there was every likelihood that the value of the property would appreciate at least 50% on the offer of possession. Para-4 of the complaint records that on the assurance given by the opposite party that they will facilitate the sale of the flat purchased by the complainant at an appreciated value, the complainant decided to book the flats. Thus, it is evident that the flats in question were booked by the complainant with a commercial motive of re-sale on appreciated value which obviously is commercial purpose. As the complainant had booked the flats with commercial purpose, he cannot be termed as a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.

The complainant not being a consumer has no locus standi to raise the consumer dispute. Complaint is accordingly dismissed. It is, however, made clear that this order will not come in the way of the complainant to avail of the legal remedy available to him by approaching appropriate forum having jurisdiction.