JUSTICE V.K. JAIN, PRESIDING MEMBER

        A building namely Poonam Chambers B-Wing (North Wing) was constructed in Mumbai and its management was handed over to a society namely Poonam Chambers Owners Association North Wing. 

2.     The aforesaid building comprised of commercial premises which the builder had sold to different buyers.  The said building collapsed partly and rest of it was got pulled down by the Municipal Corporation.  Thereafter, in March, 1998, purchasers of the aforesaid commercial premises formed the appellant / complainant society which was registered on 26.3.1999.  A Letter of Intent was issued by the appellant to the respondent on September 20, 2004 for designing, providing and installing curtain walling / structural glazing work for the proposed reconstruction of the said building, for a consideration of Rs.2,23,36,950/- on unit item rate basis.  Disputes arose between the parties in respect of the aforesaid work, culminating in the appellant filing a consumer complaint.  The said complaint having been dismissed vide order dated 20.4.2011 the appellant approached this Commission by way of an appeal.  Vide order dated 01.2.2013, this Commission set aside the order passed by the State Commission and directed hearing of the complaint on merits.  The respondent opposed the complaint inter-alia on the ground that the complainant was not a consumer as the transaction between the parties was a commercial transaction.  The State Commission having accepted the aforesaid plea and having dismissed the complaint, the appellant is before this Commission by way of this appeal.

3.     The primary issue which arises for consideration in this appeal is as to whether the complainant can be said to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act or not.  The aforesaid provision to the extent it is relevant, excludes from the ambit of the term ‘consumer’, a person who hires or avails services for a commercial purpose.  It is an admitted position that the building before its demolition consisted of commercial units.  This is also not in dispute that the complaint society was formed much after the said building had been demolished and consists of the buyers of the commercial unit in the aforesaid building.  It is also not in dispute that the work awarded by the complainant to the respondent envisaged construction related work in a building comprising of commercial units.  It is thus evident that the subject matter of the contract between the parties was a proposed commercial building.  A person hiring or availing the services of a contractor / builder for construction of a commercial building would not be a consumer since the construction of the building would be for a commercial purpose.  A commercial building would be used for augmenting and advancing the commercial interests and purposes of its occupants.  Therefore, hiring or availing the services of a builder/ contractor for construction related work in such a building would ipso-facto become a commercial purpose.  When a person enters into a contract with a builder / contractor for the construction of a commercial building, he may not be making direct profit in such a transaction but, since the purpose behind seeking construction of such a building is to make profit by running business therein, the hiring or availing of the services of a contractor / builder would nevertheless be for a commercial purpose. What is material is the objective behind purchase of goods or hiring or availing the services, as the case may be.  What matters therefore is the ultimate use to which the goods or the services, as the case may be, will be put.

4.     It is true that in the present case, the complainant itself was not to run business in the commercial units which were to be comprised in the proposed building, but that would be immaterial since after construction of the building the commercial units would go to their respective owners, who, in turn, will carry their respective businesses in the said units.  It would be immaterial whether those persons directly enter into a contract with the builder / contract for the construction of their respective commercial units or they form a society and ask the society to enter into an agreement with a contractor / builder for construction of a commercial building comprising of commercial units.  The owners / occupiers of the commercial units cannot be allowed to circumvent the provisions of the Consumer protection Act in the aforesaid manner and confer a jurisdiction which lawfully dos not vest in the Consumer Forum. 

5.     For the reasons stated hereinabove, I hold that since the services of the respondent were hired or availed by the complainant / appellant for a commercial purpose, the order passed by the State Commission does not call for interference by this Commission in exercise of its appellate jurisdiction.  The appeal is therefore dismissed, with no order as to costs.