Hon’ble Mr. Dinesh Singh, Member

1.      We heard the learned counsel for the appellant, and perused the material on record.

2.      The complaint before the State Commission was filed by a Power of Attorney holder, one Pushpender Sachdeva, of the complainant, one Jitender Pal Verma.

3.      As mentioned in the complaint:

“the complainant had booked Commercial Office Space in the DLF Commercial Complex of the Respondents through Shri Dhiraj Gangotra, proprietor ONS Realtors & Promoters, 1109, Galleria Towers, DLF-IV, Gurgaon and Mukul Monga, GM Buildho AE Pvt. Ltd., GM House, Plot No. 100, Sector-30, Gurgaon and paid initial booking amount”

[para 5.1 of the complaint] 

(emphasis supplied by us)

4.       The State Commission vide its impugned Order dated 01.09.2016 had dismissed the complaint, holding that the said one Jitender Pal Verma was not a ‘consumer’:

13.       In view of the above discussions I find that complainant is not covered in the deficiency of ‘Consumer’. The complaint is dismissed. However, the complainant will be at liberty to seek his remedy before prper court after taking advantage of Section 14 of the Limitation Act as per decision of Hon’ble Supreme Court in Birla Technology Ltd. Vs.  Nuteral Glass & Allied Industries Limited (2011) 1 SCC 525.

(para 13 of the State Commission’s Order)

[Note: “deficiency” at one place above appears to be a typographical mistake; self-evidently, it should read “definition”.]  

5.       The said one Jitender Pal Verma self-admittedly stays abroad and purchased commercial property through brokerage firm and company. His complaint and litigation has been instituted through his Power of Attorney holder.

6.      Here we would want to refer to section 2 (1) (d) (i) & (ii) of the Act 1986.

Section 2 (1) (d) (i) & (ii):

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 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 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 purpose.

Explanation:- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.

7.      Section 2 (1) (d) (i) & (ii) specifically stipulate “but does not include a person who obtain such goods for resale or for any commercial purposes” and “but does not include a person who avails of such services for any commercial purposes”.

The Explanation to section 2 (1) (d) stipulates that “ “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.”

8.      The Explanation to section 2 (1) (d) is clear. “exclusively for the purpose of earning his livelihood by means of self – employment” in the Explanation to section 2 (1) (d) has to be adjudged rationally and logically with the due understanding and significance of “exclusively” and “livelihood” and “self-employment.” Reasonable and logical interpretation has to be kept limited and confined to reason and logic, not hypothised towards anyhow allowing anyone in.

9.      Mere averment, during the course of the litigation, in the language of the Explanation to section 2 (1) (d), is not sufficient to hold a person as ‘consumer’, when the facts speak otherwise. The averment, in a case of the present specificities, had to be established through facts, which onus the one Jitender Pal Verma failed to discharge.

10.    In our considered view, the State Commission has rightly determined that the said one Jitender Pal Verma is not a ‘consumer’ within the meaning of section (2) (1) (d) of the Act 1986.

11.     We also make it clear, in the present context, that section 2 (1) (d) (meaning of ‘consumer’) and section 3 (additional remedy to consumers) have to be understood in conjunction and perspective. It has to be noted that denial to avail additional remedy in consumer protection fora to a person who is not a ‘consumer’ does not take away or affect his right to agitate his case in an appropriate forum / court as per the law. Conversely, the availability of additional remedy in consumer protection fora does not take away the option of a ‘consumer’ to agitate his case in any other appropriate forum / court. 

12.    It is also noted that the matter had gone to arbitration. Award therein has also been made:

BEFORE JUSTICE M. L. MEHTA (RETD.) SOLE ARBITRATOR

IN THE MATTER OF

Arb P. 323/2011

Jitender Pal Verma                                                                        … Petitioner / Claimant

Versus

DLF Commercial Complex Ltd.                                                  …Respondent

AWARD

25.03.2017

1. This order disposes the above mentioned claim petition filed by the Claimant against the Respondent, seeking recovery of a sum of Rs.52,33,200/- with interest @18% per annum from the date of payment, pendent lite and future.  The Claimant had booked with the Respndent an office flat bearing No. DSH-346, in DLF Towers, 15 Shivaji Marg, West Delhi, a project developed by the Respondent. Beside the initial booking amount of Rs.7,50,000/- paid on 12.03.2008, the Claimant paid further sums totaling the payment of Rs.52,33,200/- uptill 18.02.2009.…..

…..

Award is passed accordingly and announced. There is no order as to costs.

sd/-

JUSTICE M. L. MEHTA (RETD.)

SOLE ARBITRATOR

25.03.2017

- - - - - - - - - - - - - - - - - - - - - - - -

BEFORE JUSTICE M. L. MEHTA (RETD.) SOLE ARBITRATOR

IN THE MATTER OF

Arb P. 323/2011

Jitender Pal Verma                                                                        … Petitioner / Claimant

Versus

DLF Commercial Complex Ltd.                                                  …Respondent

CORRECTION OF AWARD DATED 25.03.2017

…..

The above correction would be part of the final Award dated 25.03.2017 for all intents and purposes. Announced accordingly.

sd/-

JUSTICE M. L. MEHTA (RETD.)

SOLE ARBITRATOR

03.05.2017
 

13.    It is noted that the one Jitender Pal Verma himself invoked arbitration in 2011. He then subsequently filed a complaint before the State Commission in 2012. On the face of it, res sub judice was attracted.

14.    Here we would want to refer to section 3 of the Act 1986.

Section 3 :

Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

Section 3 specifically provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. That is, the remedy provided under the Act is in addition to the provisions of any other law for the time being in force; the provisions of the Act give the consumers an additional remedy besides those that may be available under other existing laws.

15.    It flows straightaway from section 3 of the Act that existence of an arbitration clause in the agreement does not bar the jurisdiction of the consumer protection fora.

However, this does not mean that even if a ‘consumer’ invokes and avails of arbitration, he can subsequently still avail of the additional remedy provided under section 3 to ‘consumers’.

That is to say, if a ‘consumer’ invokes and avails of arbitration, he is barred from subsequently seeking the additional remedy available to ‘consumers’ under section 3 of the Act 1986.

One and only one remedy can be availed of, be it arbitration, or action in a civil court, etc., or complaint as a ‘consumer’ under the Act 1986.

Specifically, a ‘consumer’ cannot first invoke and avail of the remedy of arbitration and then subsequently (again) seek the additional remedy provided for ‘consumers’ under section 3 of the Act 1986.

16.    The argument of the learned counsel for the complainant, Mr. Himanshu Upadhyay, advocate that a ‘consumer’ is free to come before consumer protection fora even after invoking and availing of the remedy of arbitration is totally erroneous.

17.    The complaint made by the one Jitender Pal Verma before the State Commission fails on two grounds, one, the said one Jitender Pal Verma is not a ‘consumer’ within the meaning of section 2(1)(d) of the Act 1986, and, two, for the sake of discussion, even if he is a ‘consumer’, having invoked and availed of arbitration, he is barred from availing the additional remedy for ‘consumers’ under section 3 of the Act.

18.    The learned counsel for the respondent, Mr. Pravin Bahadur, advocate was not troubled for his arguments.

19.    We would want to make it explicit that this critique has been made in the reference and the context of the obtaining facts of the instant case.        

20.    The first appeal is dismissed.