Judgement on : Monday, the 23rd day of May,2016.

HON’BLE MR.SAMARESH PRASAD CHOWDHURY,PRESIDING MEMBER

Judgement

        The instant consumer complaint u/s. 17 (wrongly mentioned u/s.12) of Consumer Protection Act,1986   (hereinafter referred to as “the Act “ ) is at the instance of a company incorporated under the Companies Act, 1956 against the developer for deficiency in services in respect of a  Row House being Plot No D/02/02 type 16x20 meter land area  320 sq. meter  building area 4301.29 sq. ft. at Kolkata West International City Township.

        In a nutshell, Complainant’s case is that on 28.05.2006 they had booked for purchasing a residential accommodation being Row House having infrastructure, services, facilities and amenities, as mentioned at a price of Rs.82,04,500/- only. The Opposite Party by its letter dt. 16.10.2010 had allotted the said unit. The agreement in this regard was entered into on 02.07.2007. The Complainant was required to pay the said sum by way of 10 equal instalments. It was stipulated that the Opposite Party will hand over possession of the said Row House to the Complainant within 31.12.2008 with a grace period upto 30.06.2009. Pursuant to the said agreement Complainant had paid Rs.65,63,600/-representing 80% of the cost upto 8th instalment.  The Complainant was ready and willing to pay the 9th instalment to pay but could not pay the same as Opposite Party by its letter dt. 21.11.2008 requested the Complainant to postpone the payment as there has been no progress in the work to enable them to hand over the possession. Thereafter, the Complainant  time to time was keeping in track on the progress of the project but no satisfactory reply was received from the Opposite Party. In that perspective the instant consumer complaint has been filed with the following prayers, viz. – (a) to direct the Opposite Party to hand over the possession of the Unit and to execute and register the Sale Deed, (b) to pay compensation of Rs. 10,00,000/-, (3) litigation cost, etc.

        The Opposite Party by filling a written version disputed the allegations levelled by the Complainant contending inter alia that the Complainant cannot be termed as a ‘consumer’ within the meaning of Section 2(1)(d)  of the Act. The Opposite Party has stated that they issued demand letters on 22.06.2010 and 01.07.2010 to the Complainant asking them to make payment of 9th instalment but the Complainant has failed and neglected to pay the same and thereby  caused breach of the agreement. Therefore, the complaint being misconceived and baseless one should be dismissed.

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

        (1) Is the complaint case maintainable ?

        (2)Is the Complainant a ‘consumer’ within the meaning of Section 2(1)(d) of the Act ?

        (3) Is there any deficiency in services on the part of the Opposite Party ?

        (4)Is the Complainant entitled to the relief or reliefs, as prayed for ?

        In order to prove their case Shri Anand Kumar Agarwal, one of the Directors of Complainant Company has tendered evidence on affidavit, against which one Shri Sandip Kumar Dutta, Assistant General Manager   (Commercial) of the O. P. set forth the questionnaire  to which reply has been filed on behalf of the Complainant.

        Similarly, on behalf of the Opposite Party, the said Shri Sandip Kumar Dutta filed evidence on affidavit and also a supplementary affidavit to which the questionnaire has been filed on behalf of the Complainant and also  reply thereto by the Opposite Party. Besides the same, both the parties have filed some documentary evidence in respect of their respective cases.

         On the basis of the materials we shall consider howfar the Complainant has been able to substantiate their case.

DECISION

        Point Nos. 1 & 2 : Both the points are taken up together as their inter linked with each other. In  the petition of complaint the Complainant has specifically mentioned that it is a Private Limited Company registered under the Companies Act, 1956. The fact remains that the Complainant company had agreed to purchase a Row House from the Opposite Party at Kolkata West International City and in this regard an agreement was entered into  by and between the parties on 02.07.2007. The agreement dated 02.07.2007 clearly indicates that the Complainant company had agreed to purchase the Row House and one of the Director of the Company put his signature in the agreement on behalf of the company. During hearing of the case, Ld. Advocate appearing for the Opposite Party has placed before  the Bench a Certificate of Incorporation  dated 26.06.2006 which speaks that the main object of the Complainant company is to acquire by purchase, lease, exchange, hire or otherwise, land, buildings, properties and hereditaments of any tenure of description and to sell, let on lease or on hire, mortgage or dispose of the same or any other manner in whole or in part to any person , association or persons, firm or body corporate or unincorporated and also to manage land, buildings and other properties, whether belonging to the company or not.

        The materials on record indicate that the Complainant is a Private Limited Company and it carries commercial activities and nowhere in the petition of complaint it has been mentioned that such activities has been carried out for livelihood or self-employment.

        For the purpose of appreciation of the matter, it would be worthwhile to reproduce the provisions contained in Section 2(1)(d) of the Act which runs as follows :

        “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 pro missed 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 series 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 in clued use by a person of goods b ought and used by him and services availed  by him exclusively for the purposes of earning his livelihood by means of self-employment ;”

        The above provision makes it quite clear that  the consumer is a person who buy any goods for a consideration which has been paid or promised or partly paid or partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails services  for any commercial purposes. The explanation to the Section creates and exception and states that clause commercial purpose does not include use by a person of goods brought and used by him and services available by him exclusively for the purposes of earning his livelihood by means of  self-employment.

        In our case, it is evidence that Complainant being  a Private Limited Company is engaged in commercial activities carried out by it not for earning livelihood by means of self-employment. The Complainant Company  has to act through somebody and the question of livelihood and self-employment does not arise. Company has judicious identity and it can be sued through a person. Company does the commercial activities for his shareholders and as such question of earning livelihood by means of self-employment does not arise.

        Ld. Advocate appearing for the Complainant has submitted that the Complainant company intended to purchase the Row House for the residential accommodation of its officers with no intention to generate profit. On the other hand, Ld. Advocate for the Complainant has contended that in view of the decision of this Bench dated 11.03.2016 in connection with CC No. 29 /2012 ( Nisant Agarwal, Director of M/s. Universal Corporation Ltd., Sikkim – Vs. – Bengal Unitech Universal Infrastructure Pvt. Ltd. ) this complaint is not at all maintainable in as much as a Limited Company cannot be considered as ‘consumer’ under the purview of the Act.

        After giving due consideration to the submission advanced by the parties we may take note of the decision of National Consumer Commission reported in iv (2010) CPJ 295 ( M/s. Monstera Estate Pvt. Ltd. – Vs. – M/s. Ardee Infrastructure Pvt.Ltd. ). In the  said decision it has been held that even if a Private Limited Company is treated as person,  the purchase of space cannot be for earning for its livelihood by means self-employment and purchase of space was meant for commercial purpose.

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

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

        Point Nos. 3 & 4 :-

        On evaluation of materials on record and in view of our foregoing discussion in point Nos. 1 and 2 we do not find any reason to discuss over these points any further. Accordingly, both the points stand disposed of.

        In the  result, case fails. It is, therefore,

ORDERED

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

        If the Complainant chooses to file a suit for the relief claimed in this proceeding they can do so in accordance with law and in such case they can claim the benefit of Section 14 of the Indian Limitation Act, 1963 to exclude the period spent before this Commission for the purpose of computation of limitation in terms of the observations made by The Hon’ble Supreme Court of India in the case of Laxmi Engineering Works – Vs. – P.S.G. Industrial Institute reported in 1995 (2)CPC 2.