MUKUL DALMIA vs Dlf Commercial Developer Ltd

BY this order we propose to dispose the preliminary objection taken by the opposite party on maintainability of the consumer complaint filed by the complainant Mukul Dalmia.

BRIEFLY relevant facts for the purpose of deciding the objection are that the complainant on 15.12.2005 booked shop No.1 in Tower B measuring 633 sq.ft in the proposed DLF Tower at Jasola. At the time of booking, the complainant paid a sum of Rs. 19,39,275/- as registration / application money. On 09.06.2006 Retail / Commercial Space Buyers Agreement was executed between the complainant and the opposite party. The complainant has paid all the instalment as per payment plan in time and in all he has paid a sum of Rs. 1,22,18,417/- against the consideration amount of the shop. Grievance of the complainant is that though he has complied with his part of contract, the respondent-service provider is now offering him possession of the shop with much lesser area, that is, 565 sq.ft. It is alleged that at the time of booking of the shop, printed maps were furnished by the respondent in which the super area of shop no.1 of Tower B was shown as 663 sq.ft. The respondent, however, has subsequently altered the construction plan and carved out two more shops bearing no.23A and 24A on the ground floor which has resulted in reduction in the area of the shops at the ground floor. This according to the complainant is deficiency in service which has led to filing of the complaint. Respondent in his reply to the amended complaint has taken a preliminary objection that instant consumer complaint is not maintainable for the reason that the complainant had booked the shop in question for commercial purpose which is apparent from his admission in para 18 of the complaint wherein the complainant has alleged that he is a bonafide investor who had invested in the shop in the year 2005. It is alleged in the written statement that from the above, it is obvious that services of the respondent availed by the respondent under the agreement were for commercial purpose. As such, the complainant in view of the definition of ''consumer'' under section 2 (d) of the Consumer Protection Act (in short, ''the Act '') is not a consumer. Learned counsel for the respondent has contended that as per the definition of ''consumer'' in section 2 (d) of the Act, the person who avails services for any commercial purpose are excluded from the definition of consumer. Admittedly, the complainant had booked a commercial shop which obviously amounts to availing of service for commercial purpose and also that complainant admitted that he invested the money in the commercial shop. Therefore, the complainant cannot be termed as consumer and as such complaint filed by him is not maintainable.

SHRI Manish Aggarwal, Advocate for the complainant on the contrary has contended that booking of shop in a commercial project by itself cannot be termed as availing service of the respondent for commercial purpose. He has argued that the purpose for which the shop was booked is a question of fact which is to be decided in the facts and circumstances on the basis of evidence produced on record. Thus, it is argued that at this nascent stage, without any factual evidence on record, the complaint cannot be rejected.

WE have heard the rival contentions and perused the material record. Similar question pertaining to the definition of consumer came up before the Supreme Court in the matter of Laxmi Engineering Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)=(1995) 3 SCC 583 wherein the Hon''ble Supreme Court after analysing the relevant provisions of the Act held thus: "Whether the purpose for which a person has bought goods is a ''commercial purpose'' within the meaning of the definition of expression ''consumer'' in Section 2 (d) of the Act is always a question of fact to be decided in the facts and circumstances of each case. A person who buys goods and uses them himself exclusively for the purpose of earning his livelihood, by means of self-employment is within the definition of the expression ''consumer ".

Going by the analogy of aforesaid finding of the Supreme Court, we are of the view that whether the purpose for which the complainant has availed services of the respondent-builder is a "commercial purpose " within the meaning of definition of expression "consumer " under section 2 (d) of the Act is a question of fact to be decided on the basis of facts and circumstances of the case.

ON perusal of record, we find that the complainant in para 18 of the complaint has stated that he had invested in shop no.1 of Tower B. Whether aforesaid investment was for making commercial profit or not is also a question of fact which can be determined only on the basis of evidence. We may note that the complainant in rejoinder has tried to explain that he had invested in shop no.1 of Tower B of the proposed DLF Tower at Jasola with a view to ensure source of earning /livelihood for his disabled minor son who is suffering from non curable Hemophilia since birth. This plea of the respondent is also a question of fact. Therefore, we are of the view that the issue pertaining to maintainability of the complaint would require evidence for determination. Accordingly, the decision on the issue is deferred with the observation that issue regarding maintainability shall be dealt with at the stage of final arguments.

PLEADINGS in this case are complete. Accordingly, parties are directed to file their evidence on affidavit within four weeks. List on 05.03.2013 for disposal of Miscellaneous Application No.1338/2009. Complaint disposed of.