Shakuntlam Apparels Pvt Ltd vs GOLD CAUSE CONSTRUCTIONS PVT LTD

THE above noted complainants have filed the consumer complaints alleging deficiency in service on the part of the opposite party builder in respect of shops booked by them in the proposed project "Paradise Mall" undertaken by the opposite party.

ON perusal of the complaints, prima facie a question arises whether the complainant companies are consumer 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 Shri Arshdeep Singh, Advocate for the complainants 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 have contended that the above referred complainants are closely held family concerns, running business to ensure livelihood to all the shareholders by way of self employment. Therefore, booking of commercial space / shop 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 order to appreciate this contention, it is necessary to have a look on 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 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.

IN order to get benefit of the Explanation, the complainants are required to prove that they had booked the shops 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 para 1 of the respective complaints, it is categorically stated that the complainants companies at the time of booking of the shops were already engaged in profitable business. Therefore, it cannot be said that the shop / commercial purpose 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.

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 space in proposed projected 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 complaints are, 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.