Swo -India Ltd. vs Raj Associates And Ors.

THE whole controversy centers around the question of maintainability of this complaint, i.e., "Whether, the complainant is a ''consumer'', under Section 2(1)(d) (i) and (ii) with the explanation appended to it, of the Consumer Protection Act, 1986?.

THE case of M/s. SWO India Ltd., the complainant is as follows. The complainant is a company working for the welfare of the Indian soldiers, ex -serviceman, war -widows, widows and their families. It undertakes activities of social welfare nature and facilitate provision of cheap/low cost and affordable housing facilities for the soldiers and their families all over India. The provision of such housing facilities is done through local builders, developers and colonizers. The object of the complainant is to make soldiers and widows live together with dignity in a secured environment in one gated complex nearby their native place after retirement from active service. Based on the availability of land through the developers, the complainant invites applications for registration from needy and desirous soldiers, ex -serviceman, war -widows, widows and their families and provides them with cheap/low cost and affordable housing facilities. M/s. Raj Associates, the Opposite Party (OP) is carrying on the business as builder and colonizer and has developed many housing projects both commercial and residential through their registered office at Bokaro. It proposed to develop and provide fully approved 130 residential plots of different sizes in a Housing Complex for the clients of the complainant to be named as ''Veer Awas bokar'', in general area, Mauza Kura, No. 99, P.S. Pindrajora, Tehsil Chas, District Bokaro, Jharkhand.

THE complainant entered into an agreement -cum -Memorandum of Understanding, on 23.06.2013 with OP1 and Sh. Raj Kumar Bhagat, OP2, the proprietor of OP1. The OPs undertook to provide fully developed plotted colony of 130 residential plots duly approved from the competent authorities, complete with all infrastructure and amenities on the project land. It was also agreed that the project would be completed by 30.07.2014. The OPs agreed to provide the necessary documents to the complainant, such as (a) proof of identity of proprietor (b) copy of PAN card of proprietor (c) land documents on which residential plots were to be developed (d) copies of approved layout plan and all technical details of the project and (e) copies of other legal property documents related to the project. It was agreed that total charges would be paid @ 313/ - per sq.ft. for residential plots. The complainant made payment in the sum of Rs. 99.11 lakhs to the OPs as part payment, during the period 26.07.2013 to 30.12.2014. The OPs were to provide approval from Chas Block for development over the proposed land, but the needful was not done.

THE complainant incurred more than Rs. 20.00 lakhs on publicity, marketing and other office/administrative expenses, in all India level from Leh, Ladhak to Kanyakumari. Ultimately, this complaint was filed with the following prayers: - - "a) direct the opposite party to refund the advance amount of Rs. 99.11 lakhs to the complainant; and

b) direct the opposite party to pay the interest @ 24% p.a. on the paid up amount for the period the amount was utilized by the opposite party since its realization; and

c) direct the opposite party to pay Rs. 1,00,000/ - towards compensation to the complainant for undue delay in refund and not responding to the request of refund; and

d) direct the opposite party to pay compensation of Rs. 20.00 lakhs which were incurred by the complainant company on publicity, marketing and office administration of the project proposed by the opposite party;

e) direct the opposite party to pay Rs. 50,000/ - towards litigation expenses to the complainant; and/or

f) pass any further and other order(s)/direction(s) in favour of the complainant in the interest of the justice".

We have heard the counsel for the complainant and have gone through its written arguments. Learned counsel for the complainant argued that the word ''consumer'' means, a consumer or any voluntary organization, etc. ''Consumer'', according to Section 2(b)(i) has been defined in Section 2(1)(d) of the Act which says that ''consumer'' means, "any person, inter alia, who buys any goods or hires or avails of service for consideration". Explanation as to clause (ii) of 2(1)(d) introduced in the year 2002, w.e.f. 15.03.2003, widens the scope of consumer even for commercial purpose. The term ''person'' mentioned in Section 2(1)(d) has further been defined in Section 2(1)(m) of the Act which includes a firm, whether, registered or not, in the definition of the ''person''. Consequently, a ''company'', is a ''consumer''. The services hired for consideration for commercial purposes is included in the term ''service'' as per section 2(1)(o).

THE complainant has referred to authorities reported in Kishore Lal v. Chairman, Employees'' State Insurance Corporation, : (2007) 4 SCC 579 and Karnataka Power Transmission Corporation & Anr., : (2009) 3 SCC 240, Lucknow Development Authority v. M.K. Gupta, : (1994) 1 SCC 243, Laxmi Engineering Works v. PSG Industrial Institute, : (1995) 3 SCC 583, Mukul Dalmia v. DLF Commercial Developer Ltd.,, 1 (2013) CPJ 37B (NC) (CN).

WE are of the considered view that the said authorities are not applicable to the instant case. The amendment which was effective from 15.03.2003 has brought tremendous changes in the definition of ''consumer''. Section 2(1)(d), of the Act runs as follows: - - "2. Definitions. - (1) In this Act, unless the context otherwise requires

"(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 boys 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 service 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 purpose.

"[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;]"

In Monstera Estate Pvt. Ltd. v. Ardee Infrastructure Pvt. Ltd. - IV, (2010) CPJ 299 (NC), this Commission held, as under: - -

"Housing - Purchase of space for commercial purpose - There was delay in possession. Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed Deficiency in service was alleged it was held that even if private limited company was treated as ''person'', purchase of space could not be for earning its livelihood Purchase of ''space'' was for commercial purpose".

IN Shika Birla v. DLF Retailers Developers Ltd., Consumer Complaint No. 183 of 2012, the Hon''ble Apex Court, in Civil Appeal No. 5458 of 2013, dated 08.07.2013, upheld the order of this Commission, while observing that the complainant does not fall within the definition of ''consumer'', under Section 2(1)(d).

IN Satish Kumar Gajanand Gupta v. M/s. Srushti Sangam Enterprises (India) Ltd., & Anr., Consumer Complaint No. 296 of 2011, decided by this Commission, on 03.07.2012, the Hon''ble Apex Court, in Civil Appeal No. 6229 of 2012, decided on 14.09.2012, upheld the order of this Commission that the petitioner was not a ''consumer'' when he intended to purchase some permanent accommodation at Mumbai, for his stay during his business visits, from Delhi, to save on the expenditure incurred for hotels. For that purpose he had booked two flats. In M/s. Purusharth Associates Pvt. Ltd. v. M/s. Uppal Housing Ltd. Plaza & Anr., this Commission in Consumer Complaint No. 112 of 2012, on 05.07.2012, observed in paras 11 and 12 of its judgment, as under:J.M. Malik

"11. Learned counsel for the complainant argued that these flats will be used for the officers of the Company. Learned counsel for the complainant could not deny that those officers would transact the commercial activity. A bare -look on this Resolution clearly goes to show that these flats would be meant for commercial purposes."

The complaint being not maintainable, is therefore, dismissed. Nothing will debar the complainant to seek remedy before the appropriate Forum, as per law.

THE above -mentioned case (M/s. Purusharth Associates Pvt. Ltd.) was dismissed in limine. Aggrieved by that order the complainant approached the Apex Court. The Hon''ble Supreme Court in Civil Appeal Nos. 8990 -91/2012, vide its order dated 07.01.2013, dismissed the same.

IN Subhash Motilal Shah (HUF) & Ors. v. Malegaon Merchants Co -op. Bank Ltd., the petitioner, ''HUF'', had opened a current account to be used for commercial purpose. It was held that it was not a ''consumer'', by this Commission vide its order dated 12.02.2013 and the SLP filed against the said order, was dismissed by the Hon''ble Apex Court in Civil Appeal No. 39200/2013, dated 13.01.2014 It must be borne in mind that the residential plots in question are further re -sold to the allottees. The element of ''business'' is in -built therein. In case the companies are allowed to save the court fees, the very purpose of ''ordinary consumer'' or ''consumer'' as defined by this Act, shall stand defeated. Consequently, we find that the present case is not maintainable and the complaint is dismissed, in limine. However, there lies no rub for the complainant to seek remedy before any other appropriate forum or the civil court, as per law. Further, it may seek help from the celebrated authority reported in Laxmi Engineering Works v. PSG Industrial Institute, : (1995) 3 SCC 583, so far as question of limitation is concerned.