Are the Complainants consumers  within  the meaning of that expression as defined in Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 ?

2.         We have heard  Shri G. N. Mishra, the lr. advocate of the Complainants,  at the stage of admission.

3.         The  Complainants are the owners of plot no. 4 admeasuring 911 sq. mts. under survey no.128/5–D.  The Complainants entered into an agreement dated 24/07/2009 with the OP styled as an agreement for exchange cum development.  Under the said agreement the OP was to construct a building on the said plot consisting of total built up area of 727.90 sq.mts. as per development permission dated 03/03/09.  The building was to be constructed within 30 days from the date of execution of the said agreement. 

4.The OP was to sell to the Complainants, under the said agreement, flats, F2, S2 and G1 admeasuring 62.7, 62.7 and 53.3 sq.mts. respectively, for a total consideration of Rs.28,70,000/-  which was  to be  paid to the OP as per schedule VI of the said agreement.  In case of delay of handing over possession within the period of 30 months,  the Complainants were to be paid Rs.20,000/- per month by way of liquidated damages.

5.         The Complainants’ claim that they have paid a sum  of Rs.29,97,750/- for  the  said  three flats. 

6.         The said 3 flats are the subject matter of C.C. No.07/2015.  The Complainants seek to recover the possession of the said 3 flats from the OP.  The Complainants have also claimed compensation of Rs.14,88,000/- as on 24/02/15 and other reliefs.

7.         The OP, under the said agreement,   was to develop and construct the said building at his own costs and in exchange,  as consideration,  give to the Complainants  one shop admeasuring 92.02 sq.mts., one office  space admeasuring 14.28 sq.mts. on the ground floor and a 2BHK  flat S1 admeasuring 127.48 sq.mts. in addition to 45 sq.mts. of  parking space inclusive of one W.C. on the ground floor  as per schedule IV of the  said agreement.  The said shop, office space, 2 flats, etc. were to be delivered to the Complainants,  within 30 months from the date of execution of agreement,  and in case of default,  the OP was to pay to the Complainants Rs.24,000/- per month till the delivery of possession of the said flats. 

8.         The  shop, office space and the two flats, etc. are the subject matter of C.C. No.10/15.  The Complainants seek to recover the possession of the said shop, office space, etc. from the OP.  The Complainants have also sought  compensation of Rs.14,88,000/- as on 24/02/15 and other reliefs.

9.         The Complainants were to carry out the finishing works as regards the flats, shop, etc. as  stipulated in para 4 of the said agreement.

10.       The Complainants claim that the OP failed to deliver the possession of the flats, shop, office space,  parking  lots, etc. and that the OP completed and sold all other flats and made huge profits and as such the Complainants served notice on the OP dated 15/01/14 followed by reminders dated 2/08/14 and 27/08/14 and final reminder dated 10/02/15.  Complainants have filed the present complaints  for recovery of possession of the said premises agreed to be sold as well as those agreed to be given in exchange by the OP to the Complainants.

11.       The Complainants would not be consumers in case they had purchased  the flats/shop, office space,  etc., from the OP either for resale or for any commercial purposes.

12.       Shri Mishra, the lr. advocate of the Complainants,   referring to C.C. No. 7/15 would submit that out of 3 flats F2, S2 and G1, one was meant for the occupation of the Complainants, the other for their children and the third to be  let out so that the Complainants could earn something for their livelihood.  Lr. advocate Shri Mishra, however,  does not say as to what the Complainants proposed  to do with the shop, office space, the flats, etc. which the Complainants were to get in exchange for the plot given to the OP  for development.  Shri Mishra has placed reliance on M/s. Remington Rand of India Ltd. vs. M/s. Pioneer Typewriter Company, 1999 NCJ 43;   M.P. Bhaya  vs.   Mrs. Malti Yogesh Karia,  1999  NCJ  250;   and

Faqir Chand Gulati  VS. Uppal Agencies Private  & anr., (2008) 10 SCC 345.

13.       We have perused the said decisions.   They are of no assistance to the case of the Complainants. The case of Remington Rand of India Ltd. (supra)  was a case of purchase of a copier machine by a firm by obtaining a loan from the Bank;  and the National Commission held that just because  the firm was a partnership firm  it would not be concluded that the partners were engaged in large scale commercial venture and that a formal partnership can always be formed  to earn livelihood by the partners. 

14.       The case of M. P. Bhaya (supra)  was a case where the Complainant  had permitted the builder to construct a building consisting of ground  floor flat which was to be delivered to the Complainants and also four other flats which the builder  was free to sell to others;  and the National Commission held that there was deficiency in service on the part of the OP  on account of delay in the matter of completing the construction of the flat belonging to the owner of the land  which had given licence  to the  OP to enter thereon and make the construction. 

15.       It may be noted here, that the above  two cases were decided prior to the insertion of explanation w.e.f. 15/03/03 excluding  persons who availed services for commercial purposes  from the definition of “consumer” in Section 2(1)(d) (ii) of the Act, in as much as the case of M. P.  Bhaya (supra) was a case where the Complainant was to get only one flat.

16.       In Faqir Chand Gulati (supra) the Complainant,  as land owner,  was  to get,  under the agreement,  the entire ground floor. (consisting of 3 bedrooms with attached bathrooms, one drawing cum dining  room, one store room, one kitchen)  with one servant room under the overhead water tank on rear terrace and one parking space,  as his share in consideration for his having made available the land in addition to Rs. 8 lacs,  while the remaining part of the building (the entire first and the second floors and two servant rooms and two car parking spaces) were to belong to the builder  as his share of the building in consideration of having spent  for the cost of construction of the entire building and of other services rendered by him in the agreement, and as such, it was held that the land owner was a consumer, as  the land owner had availed the services of the builder for house construction  (construction of the owner’s share and the building for the consideration) and the builder a service provider.  This decision is of no assistance to the Complainants,  who under the agreement with the OP Builder were to get three flats on payment of consideration,  and one shop,  one office,  two flats and  parking place  in exchange for the  plot of land for the construction  of the building which was to be done at the cost of the OP,  except for completion of finishing works.

17.       In our view, the entire transaction between the Complainants  on one hand,  and,  the OP on the other hand,  is a commercial transaction where the Complainants were to get several flats, shop,  office, etc.  for the purpose of resale and therefore  a commercial purpose.    The  said premises could not have been  for the use of the

Complainants  alone but for resale for the purpose of earning profits.  When  a person  avails  the services of a builder  for providing  more

than one dwelling unit,  this is  obviously  a transaction relatable to service of commercial purpose which has been excluded from the purview of the definition as given in Section 2(1)(d)(ii) w.e.f. 15/03/2003.  This view was  taken  by the National Commission,  first, in Travel India Bureau Pvt. Ltd. vs. Hooda and ors. II 2008 CPJ 329.  This view was also taken by this State Commission in C.C. No.11/2011 by order dated 5/03/13 relying on Satish Kumar vs. Srushti Sangam Enterprises, 2012 (2) CCC 497  which were cases of purchase of two flats.   The same view has now been reiterated by the National Commission in Smt. Madhu Saigal and anr. Vs. M/s. Omash Build Home Pvt. Ltd., 2014 (3) CPR 265 relying on other decisions as well.

18.       We are therefore of the  view that the Complainants are not consumers as they had not engaged the services of the OP for the purpose of earning their livelihood by means of self employment but   for a commercial purpose of acquiring several flats, shop, office, etc. for purpose of resale to earn profits.   Complainants,  therefore, are not entitled to invoke the jurisdiction of this Commission as they are not consumers as defined in the C.P. Act, 1986.    They would be free to approach the Civil Court to redress their grievance and for that they would be entitled to take benefit of Section 14 of the Limitation Act as held in Laxmi Engineering Works,  1995 (3) SCC 583. 

19.       We, therefore, proceed to dismiss the complaints for want of jurisdiction as the Complainant are not consumers as defined  under the Act, 1986.