STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Ms.Sona Sharma, wife of Ramesh Sharma, resident of House No.32-A, Defence Enclave, Rajpura, Patiala

……Appellant/complainant

V e r s u s

1. M/s Greenfield Sites Management Private Limited, SCO 196-197 (Top Floor), Sector 34-A, Chandigarh, through its Managing Director.

2. Chandigarh Overseas Pvt. Limited, Fashion Technology Park, SCO 196-197, Sector 34-A, (Top Floor), Chandigarh, through its Managing Director.

              ....Respondents/Opposite Parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.

              MRS. NEENA SANDHU, MEMBER.

       H.

Argued by:  Sh. Rajiv Gupta, Advocate for the appellant.

Sh.Kamaljit Singh Lang, Advocate for the respondents.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.             This appeal is directed against the order dated 15.11.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint filed by the complainant (now appellant), on the ground, that she (complainant) did not fall within the definition of a “consumer”, and, as such, the complaint was not maintainable.

2.             The facts, in brief, are that the complainant applied for the allotment of an industrial work space/design Studio measuring 125 square feet at “Industrial Zone” in “FASHION TECHNOLOGY PARK”, Sector 90, S.A.S. Nagar, Mohali, by depositing Rs.1,25,000/-, alongwith the application form on 14.08.2006. She was allotted 125 square feet super area in Design Studio, measuring 125 Square Feet, under the “Small Investors Scheme” in Design Studio No.6, in the building called as Block A2 on 6^th Floor, in the  Industrial Knowledge (Fashion Technology) Park, Sector 90, Mohali, on free hold basis. According to Clause 16 of the Memorandum, first 500 units sold were entitled to a “Buyback Option” by the Company @Rs.7,50,000/- per unit. The complainant opted for “Buyback Option” under “Small Investment Invitation Program”. In this regard, an agreement dated 27.01.2007, was also executed between the complainant and the Opposite Parties. The complainant, deposited a total sum of Rs.4,75,000/-, out of the total sale consideration of Rs.5 lacs, of the said Studio, which was allotted to her. The complainant, vide letter dated 12.12.2009 (Annexure C-7), requested the Opposite Parties,  to purchase back the unit allotted to her, as per the “Buyback Scheme” and pay her a sum of Rs.7,50,000/-, as promised by them (Opposite Parties). The Opposite Parties, assured that the “Buyback Option” would be honored on 30.06.2010. It was stated that, later on, nothing was done by the Opposite Parties. It was further stated that the Opposite Parties, deliberately, pocketed the money deposited by the complainant, and failed to honor the “Buyback Option”, by paying an amount of Rs.7.50 lacs to her. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), directing the Opposite Parties, to pay Rs.10 lacs, as compensation for mental agony and physical harassment; and Rs.10,000/- as cost of litigation, was filed.

3.             The Opposite Parties, in their written version, pleaded that since the complainant was allotted the unit, in question, for commercial purpose, she did not fall within the definition of a consumer. It was further pleaded that, since, according to the Developer Buyer`s Agreement dated 27.01.2007, executed between the parties, any dispute, arising out of the said agreement, was referable to the Arbitration, and, as such, the consumer complaint was not maintainable.  It was admitted in the written version that the complainant was allotted the unit aforesaid, on free hold basis. It was also admitted that the complainant deposited a sum of Rs.4,75,000/-, against the total sale consideration of  Rs.5 lacs, in respect of the unit, in question. It was also admitted that the complainant was given the “Buyback Option”, by the Opposite Parties, which was accepted by her. It was stated that the construction work at the site, at FTP, Sector 90, Mohali, was in full swing. It was further stated that the construction was delayed due to Global recession.  It was further stated that the Opposite Parties, honored the commitments, with their buyers. It was further stated that the Opposite Parties, were not running away, from their liability, and were ready and willing to give the Industrial Unit, aforesaid, to the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.             The Parties led evidence, in support of their case.

5.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, came to the conclusion, that the complainant was allotted the unit, in dispute, for the purpose of running commercial activities, for earning profits, and not for earning her livelihood, by way of self employment, and, as such, she did not fall within the definition of a consumer, and, ultimately, dismissed the complaint, on this ground alone.   

6.             Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

7.             We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 

8.             The Counsel for the appellant, submitted that the complainant never purchased the unit, in question, for running commercial activity, on a large scale, with an intention to earn profits. He further submitted that the unit, in question, was purchased by the complainant, just with a view to earn her livelihood, by way of self employment. He further submitted that the “Buy Back Option”, was given by the respondents/Opposite Parties, which was accepted by the complainant. He further submitted that the unit, in question, was not purchased, with an intention to sell the same. He further submitted that the scheme, in which the Studio was allotted to her, was nomenclatured as “Small Investment Scheme” as is clear from letter dated 14.08.2006 Annexure C-2, (at page 53/13 of the District Forum file), which, in itself, clearly showed that the commercial activity in the said Studio, was not to be run on a large scale, for earning huge profits. He further submitted that, no doubt, no averment, was made in the complaint, that the said Studio, was purchased for earning livelihood, by way of self employment, yet, from the evidence and documents, on record, and circumstances of the case,  such a presumption could certainly be drawn. He further submitted that the District Forum was wrong, in coming to the conclusion, that the complainant did not fall within the definition of a consumer. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

9.             On the other hand, the Counsel for the respondents/Opposite Parties, submitted that, since no averment, was made, in the complaint, that the Studio, in question, was purchased by the complainant/appellant, for the purpose of earning livelihood, by way of self employment, it could very well be said, that the same was purchased for running commercial activity, on a large scale, for earning huge profits. He further submitted that even the acceptance of the “Buy Back Option” of the respondents/Opposite Parties, by the appellant/complainant, clearly showed that the Studio was purchased by her (appellant/complainant), for the purpose of resale. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.

10.           The only question, that falls for consideration, is, as to whether, the Studio bearing 125 square feet, referred to above, was purchased by the appellant/complainant, for running commercial activity, on a large scale, for earning huge profits or for earning her livelihood, by way of self employment. No doubt, no averment, was made by the appellant/complainant, in the complaint, that the Studio was purchased by her, for earning her livelihood, by way of self employment, yet, that fact alone, could not be said to be sufficient, to come to the conclusion, that she (appellant/complainant), purchased the said Studio for carrying on the commercial activity, on a large scale, for earning huge profits. As stated above, the size of the Studio,  in question, purchased by the appellant/complainant, is 125 square feet. It means that the size of the said Studio is very small. Even the price of the said Studio, was Rs.5 lacs, out of which, a sum of Rs.4,75,000/-, was paid by the appellant/complainant. Admittedly, Annexure R-1 “Developer Buyer Agreement” was executed between the parties on 27.01.2007. In the said agreement, it was, in clear-cut terms, mentioned that the Developer had launched the scheme called “Small Investor Scheme”. The Studio, in question, was purchased by the appellant/complainant, in the aforesaid scheme. Whatever activity was to be carried on, in the said Studio, was to be on small scale.  From the evidence, produced, on record, and the circumstances of the case, it was established that the appellant/complainant, never intended to run commercial activity, in the Studio, on a large scale, with a view to earn huge profits. No evidence was produced, by the Opposite Parties, that the complainant was a property dealer, dealing in the sale and purchase of real estate. No evidence was also produced by the Opposite Parties, that the complainant was engaged in any other commercial activities, as a result whereof, she is earning huge profits. In Haryana Urban Development Authority Vs. Usha Vohra, IV (2009) CPJ 305 (NC),  the complainant was allotted a booth in Sector 10, Panchkula, on 15.10.1991,  for which she had paid a total consideration of Rs.8,29,354.50, till 31.12.1996. There was no averment, in the complaint, that the same was purchased by the complainant, for earning her livelihood, by way of self employment. The complaint was decided, in favour of the complainant, by the District Forum, directing the Opposite Parties, to refund the excess amount charged, and an appeal was preferred, before the State Consumer Disputes Redressal Commission, which was dismissed. Feeling aggrieved, a Revision Petition was filed by the Haryana Urban Development Authority. During the course of Revision Petition, an argument was advanced, that since the complainant was allotted booth, which was obviously for commercial purpose, she did not fall within the definition of a consumer. The National Consumer Disputes Redressal Commission, in the aforesaid case, held that the mere fact that the respondent/complainant, had been allotted a booth site, no conclusive finding, could be recorded about the same (booth) having been allotted for commercial consideration, and, not for earning livelihood, as that would require a lot of consideration to unsuit her. In Remington Rand of India Ltd., & Ors. Vs. Pioneer Typewriter Co. I (1996) CPJ 317 (NC),  a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, New Delhi, the complainant purchased a Paper Copier Machine, from the Opposite Party, which did not give satisfactory service. No averment, was made, in the complaint, that the Paper Copier Machine, had been purchased by the complainant, for earning livelihood, by way of self employment. Ultimately, the machine became defective, and the complaint for replacement of the same, was filed. The State Consumer Disputes Redressal Commission, decided the complaint, in favour of the complainant. Feeling aggrieved, an appeal was filed by the Opposite Party/appellant, which took up the plea, that the complainant/respondent,  did not fall within the definition of a consumer, as the machine was purchased by it, for running the business, on a large scale, for earning huge profits. In these circumstances, the National Consumer Disputes Redressal Commission held that the firm of the complainant,  was indeed a small unit, and just because  it was a partnership firm, it could not be concluded that it was engaged, in a large scale commercial activity, for earning huge profits. It was further held that since loan was obtained by the complainant/respondent, from the Bank, for purchasing the machine, which fact, in itself, clearly proved that the complainant was to run a small venture, to earn its livelihood, by way of self employment. In Jindal Oil and Ginning Factory Vs Punjab Small Industries & Export Corporation (2009)CPJ26(Pb), a case decided by the Punjab State Consumer Disputes Redressal Commission, Chandigarh, an application for allotment of an  industrial plot, was made by the complainant, but no averment was made, in the complaint, by the complainant, that it was purchased with a view to earn livelihood, by way of self employment. However, the Punjab State Consumer Disputes Redressal Commission, at Chandigarh, held that when the industrial plot was not allotted to the complainant, it sought refund, and, under these circumstances, it fell within the definition of a ‘consumer’.

11.           As per  the explanation appended  to clause (ii) of Section2(d) of the  Act ‘commercial purpose’ does not include use by a person of goods bought and used by him, and services availed of  by him exclusively, for the purpose of  earning his livelihood, by means of  self-employment.  It   is   not the value of the goods, that matters, but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought, must be used, by the buyer himself, by employing himself, for earning his livelihood. A few more   illustrations, would serve to emphasis that   a person who purchases an auto-rickshaw, to ply it, himself, on hire, for earning his livelihood, would be a consumer. Similarly, a purchaser of a truck, who purchases it, for plying it as a public carrier, by himself, would be a consumer. A person, who purchases a lathe machine, or other machine, to operate it himself, for earning his livelihood, would be a consumer. In the above illustrations, if such a buyer, takes the assistance of one or two persons, to assist/help him, in operating the vehicle or machinery, he does not cease to be a consumer. As against this, a person who purchases an auto-rickshaw, a car or a lathe machine, or other machine, to be plied or operated exclusively by another person, he would not be a consumer. This is the necessary limitation, flowing from the expressions "used by him", and "by means of self-employment" in the explanation. Similar principle of law was laid down in Laxmi Engineering Works Vs P.S.G. Industrial Institute, 1995(2) Consumer Law Today 474(SC). In M/s Cheema Engineering Services Vs Rajan Singh 1996(2)Consumer Law Today 397, a case decided by a Full Bench of the Hon’ble National Consumer Disputes Redressal Commission, the complainants, purchased a brick manufacturing machine, to operate himself, for earning his livelihood, by taking assistance of one or two persons. Under these circumstances, it was held that he fell within the definition of a ‘consumer’.  The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. As stated above, it was only a small unit, measuring 125 square feet, the price whereof was Rs.5 lacs, out of which Rs.4,75,000/-, were paid by the appellant/complainant. The size of the unit, and the small consideration, for which it was purchased, in itself, were sufficient to prove that the same was purchased for running a small commercial activity, to earn livelihood, by way of self employment.  The District Forum, in our considered opinion, was not right, in coming to the conclusion, that the complainant did not fall within the definition of a consumer. The findings of the District Forum, in this regard, being illegal and invalid, are liable to be reversed.  

12.           The District Forum, also came to the conclusion, that since the complainant accepted the “Buyback Option”, given by the Opposite Parties, for the purchase of Studio, in the sum of Rs.7,50,000/-, it was proved, that the same was purchased for resale, for earning profits, and, as such, she (complainant) did not fall within the definition of a consumer. This finding of the District Forum, also does not appear to be correct. It may be stated here, that from the very beginning, it was not the intention of the appellant/complainant, to resell the unit, which was purchased by her. The respondents/opposite parties, as per the terms and conditions of the agreement, themselves, gave “Buyback Option” to the appellant/complainant. It was the said offer, given by the respondents/Opposite parties, in terms of the agreement, that the appellant/complainant accepted the same. Had it been the intention of the appellant/complainant, right from the very beginning, to resell the Studio, in question, then the matter would have been different. Under these circumstances, the District Forum, was wrong, in coming to the conclusion, that the complainant, did not fall within the definition of a consumer.

13.           The Counsel for the respondents/opposite parties, placed reliance on Ishwar Singh Vs. Dakshin Haryana Vidyut Prasaran Nigam Ltd., 2011(3) CLT 37, Birla Technologies Ltd., Vs. Neutral Glass and Allied Industries Ltd. 2011(2) CLT 45 (S.C.) and Nijjar Cold Storage, Kapurthala and another Vs. Jarnail Singh, 2009(1) CLT 462, to contend that the complainant did not fall within the definition of a consumer, and, as such, the order of the District Forum, is legal and valid. The submission of the Counsel for the respondents/Opposite Parties, does not appear to be correct. In Ishwar Singh`s case (supra) Atta Chakki was got installed, by the complainant, for commercial purpose, for earning profits. No material was produced, by him, to prove that the same was installed, only for earning his livelihood, by way of self employment. It was, under these circumstances, held by the National Consumer Disputes Redressal Commission, that the complainant did not fall within the definition of a consumer. In Birla Technologies Ltd.`s case (supra), the appellant was to develop a software, for the respondent, which was to take care of financial accounting, production, marketing, purchase, stores/inventory, fixed assets, pay roll and personnel system of the respondent/complainant, a Limited Company. The cost of the said software installed was Rs.36 lacs. The system was not properly working. When the grievance of the complainant, was not redressed, it filed a complaint. The State Consumer Disputes Redressal Commission, dismissed the complaint, holding that the complainant did not fall within the definition of a consumer. Feeling aggrieved, an appeal was filed before the National Consumer Disputes Redressal Commission. The National Consumer Disputes Redressal Commission, held that the complainant fell within the definition of a consumer. Ultimately, the Opposite Parties/appellant, filed Civil Appeal  No.10650 of 2010, before the Supreme Court of India. The Hon`ble Supreme Court held that the complainant did not fall within the definition of a consumer, on the ground, that the goods were bought, and the services were hired by it, for commercial purpose, to earn huge profits. In Nijjar Cold Storage, Kapurthala`s case (Supra), no averment, was made in the complaint, by the complainant, that the cold storage was being used for keeping potatoes of the customers, for earning his livelihood,  or that he was an agriculturist. The facts of the case and the evidence, on record, proved that it was a large scale commercial activity, which was being run, by the complainant, for earning huge profits, and, as such, this Commission, held, that the complainant did not fall within the definition of a consumer. The facts of the aforesaid cases, are completely distinguishable, from the facts of the instant case. In the aforesaid cases, mentioned in this paragraph, goods purchased or the services hired, by the complainants, were for running commercial venture, on a large scale, to earn huge profits. It was, under these circumstances, held in the aforesaid cases, that the complainants did not fall within the definition of consumers. In the instant case, as stated above, the Studio of 125 square feet, for a small consideration of Rs.5 lacs, was purchased by the complainant/appellant, and, no commercial activity, on a large scale, could be run therein, for the purpose of earning huge profits, but, on the other hand, it was only purchased to earn livelihood, by way of self employment. The “Buyback Option”, given by the Opposite Parties, as stated above, was accepted by the appellant/complainant, and she never intended, from the very beginning,  to resell the studio. Since, the facts of aforesaid cases, are clearly distinguishable, from the facts of the instant case, no help, therefore, can be drawn, by the Counsel for the respondents/Opposite Parties, from the principle of law, laid down therein.  The submission of the Counsel for the respondents/opposite parties, thus, being devoid of merit, must fail, and the same stands rejected.

14.           In view of the above discussion, it is held that the order of the District Forum, being illegal, deserves to be set aside. The complaint is liable to be remanded back to the District Forum, for fresh decision on merits.

15.           No other point, was urged, by the Counsel for the parties.

16.           For the reasons recorded above, the appeal is accepted, with no order as to costs. The impugned order of the District Forum, is set aside. The complaint is remanded back to the District Forum, with a direction, to decide the same  afresh, on merits, in accordance with law.

17.           The parties are directed to appear before the District Forum, on 16.04.2012 at 10.30.a.m.

18.           The District Forum record be sent back, immediately, alongwith a certified copy of this order, so as to reach there, well before the date fixed.       

19.           Certified Copies of this order, be sent to the parties, free of charge.

20.           The appeal file be consigned to Record Room, after completion.

Pronounced.

02.04.2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg