Date of Hearing : 19.01.2016

Date of Judgment : Friday, 11th day of March, 2016

                                      Judgment

          The instant consumer complaint u/s 17 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) is at the instance of a Director of a company for deficiency in service on the part of O.P. in respect of self-contained flat.

        The complainant’s case, in short is that the complainant being Director of M/S Universal Corporation Ltd., entered into an agreement with the O.P. on 24.3.2006 to purchase one flat measuring about 1693 sq. ft. being flat No. 2003 on the 19th floor of Tower No. 7 in Uni World City, New Town, Kolkata at a consideration of Rs. 36,38,799/-.  On the date of booking, the complainant has paid a sum of Rs. 3,27,595/- and in terms of said agreement complainant has also paid a sum of Rs.31,48,500/- on diverse dates aggregating Rs. 34,76,095/-and also paid an amount of Rs. 29,501/-  on 29.5.2006 on account of delayed payment.  As per terms of the agreement the O.P. was approached to deliver possession of the flat of complainant on 30.6.2009 but the O.P. failed to hand over the possession of the flat as per schedule.  Hence the complaint with prayer for certain reliefs, viz. – a) an order directing the O.P. to deliver the flat in question without any further delay; b) an order directing the O.P. to execute deed of conveyance as per agreement; c) compensation of Rs.25,00,000/- for mental agony and harassment; d) an order of interests @ 18% p.a. from 30.6.2009 and e) litigation costs of Rs. 5,00,000/- etc.

        The O.P. by filing written version disputed the claim alleging that the complainant does not come under the category of ‘consumer’ within meaning of Section 2 of the Act.  It has also been stated that since there is an arbitration clause in the agreement, the complaint should be referred  to Arbitral Tribunal and further it has been stated that the flat in question is ready for delivery of possession and the complainant can take the possession of the said flat after making payment of all dues in terms of the said agreement. 

        During hearing, Sri Nishant Agarwal being Director of M/S Universal Corporation Ltd., has filed evidence on affidavit against which questionnaire has been filed on behalf of the O.P. to which reply was given by the complainant.  Similarly, on behalf of the O.P.  Sri Rajib Chatterjee, constituted Attorney of the O.P. has filed evidence on affidavit against which questionnaire has been filed on behalf of the complainant and reply thereto was given by the O.P.

        During pendency of the proceedings, an application has been filed on behalf of the complainant dated 05.11.2015, which has been registered as MA/914/2015 wherein the complainant has prayed for a direction upon the O.P. not to impose illegal holding charges along with interests and maintenance charges.  The O.P. also filed one application dated 30.12.2015 being MA/1044/2015 whereby the O.P. has challenged the maintainability of the instant consumer complaint on the ground that the complainant intended to purchase the flat for commercial purposes and does not come under the purview of Section 2 (1)(d) of the Act.

        On the basis of the contention of the parties, following points are framed for adjudication :-

        1) Is the complaint  maintainable under the Act;

        2) Is the complainant a ‘consumer’ within the meaning of Section 2(1)(d)(ii) of the Act;

        3) Is the complaint is the consumer disputes is required to be referred to the Arbitrator;

        4) Was there any deficiency in service on the part of O.P.?  and

        5) Is the complainant entitled to the reliefs, as prayed for?

DECISION

        Point  1 & 2 : Both the points are taken up together for sake of convenience  and to avoid repetition.

        The materials on record clearly postulates that one Sri Nishant Agarwal being Director of Universal Corporation Limited having its registered office at Sikkim Commercial House, 3rd floor at premises No. 4/1, Middleton Street, Kolkata – 700 071 had entered into an agreement on 24.3.2006 to purchase of one flat measuring about 1693 sq. ft. being flat No. 2003 on 19th floor, Tower No. 07 at Uniword City – ‘Height’ in Action Area – III, P.O. & P.S. New Town, Kolkata at a consideration of Rs. 36,38,799/-.  On behalf of the O.P. it has been seriously canvassed that when the complaint has been initiated by a company it was certainly meant for commercial purpose, and the complainant cannot be treated as ‘consumer’ u/s 2(1)(d) of the Act.  To fortify his contention, Ld. Advocate for the O.P. has placed reliance to several decisions like – 1) (iv)(2010) CPJ 295(NC) (M/S Monstera Estate Pvt. Ltd., -vs- M/S Ardee Infrastructure Pvt. Ltd.); 2) (iv)(2013) CPJ 158 (NC) (M/S Sri Geeta Infertech Pvt. Ltd. –vs- M/S Lodha Healthy Construction and Development Pvt. Ltd.); 3) (iv)(2012) CPJ 159 (NC) (Advik Industries Ltd. –vs- Uppal Housing Ltd. & Another) and also decisions of this Commission passed on 20.6.2014 in S.C. Case No. CC/59/2010 (Salasar Niketan Pvt. Ltd. and Another –vs- Bengal Unitecs Universal Infrastructure Pvt. Ltd.).

        On the other hand, Ld. Advocate appearing for the complainant has submitted that the complainant intended to purchase the flat as an employee of the company and there is no intention on the part of the complainant to purchase the same to generate profit there from.  In support of his contention, Ld. Advocate for the complainant has placed reliance two decisions reported in 2015(2) CPR 246 (NC) (Kavit Ahuja –vs- Shipra Estate Ltd. & Joykrishna Estate Development Pvt. Ltd.& Others) and another decision reported in i) (2005) CPJ 27 (NC) (Harsolia Motors –vs- National Insurance Company Ltd.)

        In order to ascertain the real controversy, it would be worthwhile to have a look to the provisions of Section 2(1)(d)(ii) of the Act is which runs as follows  :-

        ‘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 any and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned period 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/her and services availed by him/her exclusively for the purposes of earning his/her livelihood by means of self-employment’

        Now the whole controversy arises as to whether complainant is a ‘consumer’ and falls u/s 2(1)(d)(ii) and explanation of the Act appended  with. On going through the materials on record it reveals the one Sri Nishant Agarwal being Director of Universal Corporation Ltd., which is a registered company under the Company’s Act, 1956 has entered into an agreement with Bengal Unitech Universal Infrastructure Pvt. Ltd., to purchase the flat in question. Ld. Advocate for the complainant vehemently argued that Director intended to buy the flat for his personal use and there is no intention to generate profit from the said flat.  In this regard, it would be pertinent to note that even, if a private limited company is treated as person, the purchase of space or residential flat does not come under the purview of consumer because in Monstera Estate Private Ltd.(Supra), it has been held that even if private limited company is treated as a person,  the purchase  of space cannot  be for earning for its livelihood by means of self-employment  and purchase of space was meant for commercial purpose.

        The decisions referred by the Ld. Advocate for the complainant relating to Harsolia Motor’s case (Supra) or the decision of Kavit Ahuja’s case (Supra) were altogether different because in those decisions it was held that even taking wide meaning of the words ‘for any commercial purpose’ it would mean that goods purchased or services hired should be used in any activity directly intending to generate profit.  Profit is the main aim of commercial purpose.  But in a case where goods purchased or services highered in an activity not directly intended to generate profit, it would not be commercial purpose.  The decision of M/S Monstera Pvt. Ltd. case (Supra) has made it quite clear that even if the complainant, a private limited company is treated as a person the purchase of space cannot be for earning its livelihood by means self-employment within the meaning of explanation.  The complainant in the petition of complaint did not mention that he intended to purchase the property for his livelihood. On the other hand, the materials on record  indicate that the agreement was entered into by the complainant company with the O.P. and the payments of consideration amount was made by the company and not by Mr. Nishant Agarwal himself.

        Therefore, considering the facts and circumstances, we are of the view that the complainant does not come under the category of ‘consumer’ within meaning of Section 2(1)(d)(ii) of the Act and as such the complaint is not maintainable before Consumer Fora. 

        Accordingly, both the points are decided in the negative and against the complainant.

        Point No. 3 :- The O.P. took a plea to refer the matter to Arbitral Tribunal in view of the Article 13 of the agreement entered into by an between the parties.  According to Clause 13(b) the disputes and differences shall be resolved by arbitration in accordance with the provisions of Arbitration and Conciliation Act, 1996.  It is now well settled that Consumer Fora is not bound to refer the matter to Arbitral Tribunal only on the basis of Arbitration Clause in the agreement.  In a decision reported in (iii)(2013) CPJ 439 (NC) ( D. L. F. Ltd., -vs- Mridul Estate Pvt. Ltd.), it has been held that a Consumer Fora is not bound to refer the dispute on an application filed u/s 8 of the Arbitration and Conciliation Act 1996, seeking reference of the dispute to Arbitral Tribunal in terms valid Arbitration Clause in the agreement entered into between the parties.  The said judgment has been upheld by the Supreme Court of India in a decision reported in (2015)(1) WBLR(SC)(385)(Rosedele Developers  -vs- Aghore Bhattacharya).  Therefore, the Arbitration Clause in the agreement does not create any bar on the jurisdiction of the Consumer Forums and the Consumer Forum is not bound to refer the matter to the Arbitral Tribunal.

        Accordingly, the point is decided in the negative and in favour of the complainant.

        Point 4 :- The materials on record postulates that on the date of agreement  i.e. on 24.3.2006, the complainant has paid a sum of Rs. 3,27,595/- as booking money and also subsequently he has paid a sum of Rs. 31,48,500/- totalling Rs. 34,76,095/- and also an amount of Rs.29,501/- on 29.5.2006 on the head of delayed payment.  We have already recorded that the consideration amount was Rs.36,38,799/-.  In Clause 5(a) to the agreement it was stipulated that the Developer/O.P. shall make its best endeavours to deliver possession of the flat to the complainant by 30.6.2009 subject to ‘Force Majeure’ circumstances.  Admittedly, the complainant O.P./Developer has filed to hand over the possession of the flat in question within stipulated period.  The letter dated 11.10.2011 given by the O.P. to the complainant regarding handed over the physical possession of the flat clearly indicates that there is deficiency in service on the part of the O.P. to hand over the flat in question within stipulated period.  On the contrary, the O.P. has claimed amount like maintenance, security deposit and sinking fund @ Rs. 20/- each per sq. ft. and also external facade @ Rs. 25/- per sq. ft. appears to us not in consonance with the terms of the agreement because had the flat in question delivered within the time framed the amount would not come to that extent. 

        Therefore, since there is deficiency in service on the part of O.P./Developer in delivering possession within the stipulated period and further the O.P. has failed to establish any ‘Force Majeure’ circumstances, this point is decided in favour of the complainant and disposed of accordingly.

        Point No. 5 :- In view of our foregoing discussions though we find deficiency in service on the part of O.P. yet  the consumer complaint being not maintainable, the instant complaint is liable to be dismissed .

        This point is also disposed of accordingly.

        In the result, complaint fails it is, accordingly,

                         ORDERED

          that the complaint is dismissed on contest but without any order as to cost.

        If the complainant chooses to file a suit for the relief claimed in these proceedings, they can do according to law and in such case they can claim the benefit of Section 14 of the Indian Limitation Act, 1963 to execute the period spent in prosecuting the proceedings under the Consumer Protection Act, 1986 while computing the period of limitation prescribed for such a suit.

        Consequently, M.A. No. 1044/2015 is, thus, allowed and M.A. No. 914/2015 is rejected and disposed of accordingly.