APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :  9^th FEBRUARY 2018

O R D E R

PER DR. B.C. GUPTA, PRESIDING MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 16.10.2015, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in First Appeal No. 85/2014, M/s. TDI Infrastructure versus Vinod Kumar Kuchhal” and FA No. 976/2014, “M/s. TDI Infrastructure versus Vinod Kumar Kuchhal”, vide which, it was held that the petitioner/complainant did not come under the definition of ‘consumer’, as he had booked two commercial shops with the OP Builders M/s. TDI Infrastructure Ltd.  While passing the impugned order, the State Commission reversed the orders passed by the District Forum in consumer complaints No. CC/403/2011 and CC/401/2011, vide which, the said complaints had been allowed and the amounts in question had been ordered to be refunded to the complainant alongwith interest.  Appeal No. 85/2014 had arisen out of the decision made in consumer complaint No. 403/2011 decided on 21.11.2013, whereas appeal No. 976/2014 is related to the decision made by the District Forum in consumer complaint No. 401/2011, decided on 19.08.2014.

2.       Briefly stated, the facts of the case are that the complainant Vinod Kumar Kuchhal is stated to have booked two shops with the opposite party (OP) Builders, M/s. TDI Infrastructure Limited in their Project, named as TDI Park Street situated at Kamaspur, District Sonepat, Haryana.  The complainant booked shop No. GF-60 with area 800 sq. ft approximately by making payment of ₹4,50,000/- vide receipt No. 59883 dated 18.01.2007.  Another shop No. FF-103 was booked at the same premises measuring 800 sq. ft. as well, by making payment of ₹5,50,000/- vide receipt No. 59912 on the same date, i.e., 18.01.2007.  The first shop GF-60 is the subject matter of consumer complaint No. CC/401/2011, in which, it has been stated that the OP Builders promised to complete the construction and deliver the possession within one year from the date of booking and a rate of ₹4750/- per sq. ft. was verbally quoted for the said shop.  The consumer complaint no. CC/403/2011 is concerned with allotment of shop No. FF 103, which was also promised to be delivered within one year from the date of booking and for which, the price was settled verbally at ₹3,750/- per sq. ft.  The complainant stated that the said shops were booked to earn his livelihood and to carry on business for his personal expenses.  However, the OP Builders failed to start construction on the project and to deliver the property as per schedule, which showed huge deficiency in service on their part.  The consumer complaints were filed, seeking directions to the OP Builders to refund the amounts deposited with them, alongwith interest @21% p.a. compounded quarterly, and also to award ₹1 lakh as compensation and to further pay compensation of ₹50,000/- for mental agony and harassment etc. and ₹50,000/- as cost of litigation. 

3.       The consumer complaints were resisted by the OP Builders by filing replies before the District Forum, in which they denied the allegations against them and stated that the complainant was not a consumer, having registered himself for allotment of commercial units.  Moreover, he had made investment for speculative purpose, but due to fall in the prices of the real estate, he wanted his money back.  The complainant had not executed the unit-buyer agreement, despite asking him to do so many times.  Moreover, the complainant had paid only the booking amount and did not pay the balance instalments for the property.  Both the complaints, therefore, deserved to be dismissed.

4.       The District Forum decided the consumer complaint no.401/2011 vide their order dated 19.08.2014 and directed the OP Builders to refund the booking amount of ₹4,50,000/- to the complainant alongwith interest @9% p.a. from the date of booking till payment.  A further compensation of ₹1 lakh was also awarded to the complainant.  The consumer complaint no. 403/2011 was decided vide another order of the District Forum on 21.11.2013, and it was directed that the booking amount of ₹5,50,000/- be refunded to the complainant alongwith interest @9% p.a. from the date of booking till payment and in addition, a compensation of ₹1 lakh was also allowed.  Being aggrieved against the orders of the District Forum, the OP Builders challenged the same by way of First Appeal no. 85/2014 (in the case of CC/403/2011) and First Appeal No. 976/2014 (in the case of CC/401/2011).  Both the appeals were decided vide impugned order dated 16.10.2015 of the State Commission, vide which, the said appeals were accepted and the impugned orders of the District Forum were set aside and the consumer complaints were ordered to be dismissed. 

5.       The State Commission observed in their order that in FA No. 85/2014 pertaining to the consumer complaint no. 403/2011, the complainant had been able to recover the amount in execution of the impugned order.  The State Commission directed the complainant to refund the said amount to the OP Builders within 30 days of their order, failing which, he shall have to pay interest @9% p.a. from the date of recovery made by him till the date of refund.  Being aggrieved against the impugned order of the State Commission, the complainant is before us by way of the present revision petition. 

6.       During arguments, the learned counsel for the petitioner stated that the OP Builders had been retaining the money deposited by the complainant for the last many years.  The complainant had only requested for the refund of his money alongwith suitable interest/compensation etc.  During all these years, the OP Builders had not provided the possession of the property in question to the complainant. They had also not intimated the time schedule, during which the said property would be provided to him.  The learned counsel argued that the complainant was a consumer and he had booked the property in question just to earn his livelihood through self-employment and hence, he was very much covered under the definition of ‘consumer’.  The impugned order passed by the State Commission was erroneous in the eyes of law and should be set aside and the order passed by the District Forum should be restored.  In support of his arguments, the learned counsel has drawn attention to an order passed by this Commission in “Kavita Ahuja vs. Shipra Estate Ltd. & ors. and allied matters” [CC No. 137/2010 decided on 12.02.2015], saying that there was no evidence to the contrary that the booking of shops had been made for commercial purpose.  In so far as the builder-buyer agreement is concerned, the OP Builders had not sent any such document to him which could be executed between the parties. The learned counsel further submitted that even if it was held that the complainant does not come under the category of consumer, he had every right to get his money back from the OP Builder.

7.       The learned counsel for the respondent on the other hand, stated at the outset that since two consumer complaints were involved in the matter and two appeals had been filed before the State Commission, it was obligatory on the part of the complainant to have filed two revision petitions.  Further, the complainant was not covered under the definition of ‘Consumer’ under the Consumer Protection Act, 1986 as admittedly, he had booked two commercial shops with the OP Builders and hence, the said investment had been made for commercial purpose only.  The complainant should therefore have gone to the Civil Court for the redressal of his grievances.  Referring to the order passed by this Commission in “Kavita Ahuja vs. Shipra Estate Ltd. & ors. and allied matters” [supra], the learned counsel stated that the said case was concerned with the booking of residential premises, whereas in the present case, commercial premises were involved and hence, the findings given in “Kavita Ahuja vs. Shipra Estate Ltd. & Ors. and allied matters” (supra) were not applicable in the present case.  In support of her arguments, the learned counsel has drawn attention to the orders passed in “Cheema Engineering Services vs. Rajan Singh” [(1997) 1 SCC 131]” and another order passed by this Commission in “Pardeep Singh Pahal vs. TDI Infrastructure Pvt. Ltd.  [FA No. 1138 and 1423 of 2014 decided on 21.09.2015]”.  The learned counsel further stated that the payment was to be made as per construction-linked plan for the project, but the complainant failed to make further payments, as per their demands.  At the present stage, the project was at advanced stage of construction and hence, there was no justification for refund of the amounts deposited by the complainant.  They had already sent letters to the complainant for deposit of the balance amounts.

8.       We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

9.       The basic issue that merits consideration in the matter is whether the petitioner/complainant comes under the definition of ‘consumer’ as defined in the Consumer Protection Act, 1986, considering the fact that he deposited his money with the OP Builders for the purchase of two shops for business purpose.  The explanation to section 2(1)(d) of the Act states as follows:-

“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;”

10.     The petitioner/complainant has stated in his memo of revision petition as follows:-

“14.   That the complainant booked the shops for the sole purpose of earning a livelihood for himself and his family.  The complainant falls within the scope of Section 2(1)(d) as a ‘consumer’ because he booked the shops for the specific purpose of earning a living and that was/is intended to be his main/sole source of income.  It is further submitted that the shops were to be used for his own purposes of earning a livelihood as the complainant is the head of the Hindu United Family and these shops were booked for the main purpose of securing their adult sons’ future.”

11.     In this way, the petitioner/complainant has tried to project that the said shops were booked for the sole purpose of earning a livelihood for himself and his family.  He has also stated that he was the head of a Hindu United Family and these shops were booked for the main purpose of securing the future of his adult sons.

12.     The issue has been examined in a number of judgments / orders pronounced by the Hon’ble Supreme Court and this Commission from time to time.  It has been stated by the Hon’ble Supreme Court in “Laxmi Engineering Works vs. P.S.G. Industrial Institute” [1195 AIR 1428], as follows:-

“The explanation, however, clarifies that certain situation, purchase of goods for “Commercial Purpose” would not yet take the purchaser out of the definition of expression “consumer”.  If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a “consumer”…………………………………………………………………………………………………………….

The explanation reduces, the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case.  It is not the value of the goods that matters but the purpose to which the goods bought are put to.”

13.     The matter has been discussed in detail in an order passed by this Commission in “Kavita Ahuja vs. Shipra Estate Ltd. & ors. and allied matters” (supra).  It has been stated in the said order as follows:-

“In any case, it is not appropriate to classify such acquisition as a commercial activity merely on the basis of the number of houses purchased by a person, unless it is shown that he was engaged in the business of selling and purchasing of houses on a regular basis. If, for instance, a person has two-three children in his family and he purchased three houses one for each of them, it would be difficult to say that the said houses were purchased by him for a commercial purpose……”

14.     Considering the views taken in the judgments/orders reproduced above, it shall not be appropriate to classify the complainant as a ‘non-consumer’, merely on the ground that he had booked two commercial shops with the OP Builders.  It is to be examined, therefore, whether the intention of the complainant was to book these shops for commercial gain/profit only OR he made the booking exclusively for the purpose of earning the livelihood of himself and his family by means of self-employment, so as to satisfy the provisions of the ‘explanation’ to section 2(1)(d) of the Consumer Protection Act, 1986.

15.     As stated by the learned counsel for the Opposite Party, the Hon’ble Supreme Court took the view in “Cheema Engineering Services vs. Rajan Singh” (supra) that the burden of proof lies on the complainant to prove that the booking of shops was not done for a commercial purpose, but for the sole objective of earning livelihood of his family.  We, therefore, deem it appropriate that the complainant should be provided an opportunity to lead evidence in support of his assertion that the booking of shops was made exclusively for the purpose of earning the livelihood for himself and his family.  The complainant should also prove that he is covered under the ‘explanation’ to section 2(1)(d) of the Consumer Protection Act, 1986.

16.       Based on the discussion above, we are inclined to accept this revision petition and set aside the impugned order passed by the State Commission and we order accordingly.  The matter is remitted back to the District Forum with the directions that they should call the parties, ask them to adduce evidence, if any, in terms of this order and then to decide the matter afresh, after giving opportunity of hearing to both of them.  It is further made clear that the direction of the State Commission for re-payment of the amount involved by the petitioner/complainant, back to the OP Builder, as per the impugned order, shall remain in abeyance, till the matter is decided afresh by the District Forum.  There shall be no order as to costs.