SUNIL KISHANLAL SOI vs SHIRISH GIRISH DIXIT & ANR.

Present complaint has been filed under Section 21 of the Consumer Protection Act, 1986(for short, ''Act'') by complainant alleging gross deficiency in service on the part of Opposite Parties.

Complainant''s case is, that O.P. No.1 approached him(as Complainant was in possession of Shop No.3 to 7 and 14 at ground floor of the building as tenant for 16 years) for redevelopment of said building subject to the condition, that O.P. No.1 would allow alternate permanent accommodation to the complainant, without any cost and subject to rent to shops'' owner till the redevelopment of building. A detailed agreement was executed and registered. The building on the plot in question was demolished by the O.P.No.1 and construction was to be finished within a period of one year. It is stated, that O.P. No.1 has not made payment to the Complainant as per agreement nor possession of new premises has been handed over to him. Thus, alleging deficiency on the part of O.P.No.1, Complainant sought following reliefs;

" b. Direct the respondent no.1 to pay the damages from date of handing over of vacant possession of the premises of the complainant that is Rs.131,75,500/- along with interest @ 18%; and

c. Direct the respondent no.1 to handover possession of the premises to complainant as agreed under agreement dated 19.07.2010 executed between the parties; or

d. In the alternative direct respondents to allow the complainant to raise construction in terms of agreement dated 19.7.2010 and

e. award damages Rs.10,00,000/- towards mental agony and harassment suffered by the complainant, and

f. award the cost of litigation @ Rs.1,00,000/- in favour of the complainant and against the respondent no.1 ."

We have heard learned counsel for complainant and gone through the record.

It is stated by learned counsel, that the complainant is a ''Consumer'' as per the Act since development agreement was executed between the Complainant and O.P. No.1. As, O.P. No.1 has failed to complete the construction and hand over the possession of the shop, there is deficiency in service on its part (O.P. No.1)

In support, learned counsel has relied upon decisions of this Commission, namely Jagdishbhai M. Sneth @ Soni Vs. Surbhih Realtors India Pvt. Ltd, II(2012) CPJ 525 (NC) and Mr. Vasant Shankar Toraskar and others Vs. M/s Shreeji Builders, 2 (2012) CPJ 473(NC)

Present complaint has been filed by Complainant, that is, ''Sunil kishanlal Soi'' in his individual capacity. However, development agreement was executed between Sunil Kishanlal Soi (HUF) and Opposite Party No.1. Therefore, Complainant-Sunil Kishanlal Soi has no legal right to file the present complaint in his individual name. Accordingly, present complaint is liable to be dismissed on the short ground alone.

Now coming to the Development Agreement, dated 19 July, 2010, executed th between the parties, it is manifestly clear that it pertains to commercial premises.

Clause ''j'' of this agreement states that; " The Owner have stated above agreed to allot to the tenant a new Commercial premises having a carpet area of 118.20 Sq. mtrs. as shown in the plan approved by E.E. (B.P.) of MCGM dated 17.07.209 under No. EB/4560/FN/A amended on 29.03.2010 as permanent alternative Commercial premises free of costs in consideration of the Tenant surrendering the Commercial Premises for redevelopment of the Old Building. In the premise, the Owner have agreement to allot to the Tenant a Commercial premises having carpet area of 118.20 sq. mtrs. and 5 Car parking Space exclusive of an area agreed to be purchased by the tenant as

aforesaid on the Ground floor, in the proposed new building on the said property as permanent alternative accommodation, on what is known as "Ownership Basis" in the new building proposed to be constructed by Owner on the said property in lieu of his/her/their Tenanted Premises and the tenant is agreeable to the arrangement and has agreed to co-operate with the Owner by vacating himself, his family members and his belongings from the said Tenanted Commercial Premises and affording the Owner to redevelop the said Property; "

From above development agreement, it is clear that services of O.P.No.1 availed under the said agreement, were in relation to Commercial Purposes only.

Section 2 (1) (d) (ii) of the Act, defines the consumer vis-a-vis the services availed or hired which reads as under; " Consumer" means any person- (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 prom-ised , 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 a person is a consumer if he hires the services of someone else for consideration. This vast definition, however, has an exception to the effect, that if the services are availed or hired for commercial purpose, then the person is excluded from the definition of a consumer. Admittedly, in the instant case the services of O.P. No.1 were availed and hired for getting construction of the premises for commercial purposes.

Thus, it is obvious that agreement between the parties related to a commercial purposes. As such, in view of the exception provided in Section 2(1) (d) (ii) of the Act, the complainant is not a ''consumer''. In this regard, with advantage we refer following decisions of this Commission on this issue, which have been upheld by Hon''ble Apex Court also; (i) Chilukuri Adarsh Vs. M/s Ess Ess Vee Constructions, Consumer Case No. 111 of 2012, decided on 2 July, 2012 by this Commission. [Civil nd

Appeal No. 8485 of 2012, Chilukuri Adarsh Vs. M/s. Ess Vee Constructions) dismissed by Hon''ble Apex Court oln 19.11.2012] and (ii) M/s. Setia Exports Pvt. Ltd. & Anr. Vs. M/s. DLF Commercial Developers Ltd. & Ors., Consumer Complaint No. 193 of 2010, decided on 28 October, 2010 by this Commission. (Civil Appeal No.10288 of th 2010, M/s. Setia Exports Pvt. Ltd. & Anr. Vs. M/s. DLF Commercial Developers Ltd. & Ors. dismissed by Hon''ble Apex Court on 16.12.2010]

Lastly decisions (Supra) relied by learned counsel for complainant are not at all applicable to the facts of the present case. These decisions relate to those commercial transactions which are prior to the amendment in the definition of the ''Consumer'', which took place w.e.f. 15.03.2003.

Therefore, consumer complaint filed by the complainant is not maintainable since he is not a ''Consumer'' as the shops are to be constructed only for commercial purposes.

Accordingly, we dismiss the present complaint.