First appeal No.437 of 2014 has been filed by the appellant complainant BNAL Prefabs Pvt. Ltd.against the order dated 17.6.2014 passed in consumer complaint No.39/2014.  Similarly, FA No.440 of 2014 has been filed by the appellant/complainant Khandelia Mercantile  against the order dated 17.6.2014 passed by the State Consumer Disputes Redressal Commission, UT Chandigarh (in short ‘the State Commission’) in consumer complaint No.38/2014. As the issues involved in both the appeals are the same, these appeals are being decided together.  The FA No.437 of 2014 will be the appeal being examined and analysed for decision.

2.      Brief facts of the case are that the appellant applied for residential plot in the project namely IREO HAMLET of the respondents in Sector 98, SAS Nagar, Mohali, for the personal use of Shri Anuj Gupta, Director of the Appellant Company, and for the use of his family members and total cost of the plot was Rs.75,98,250/-.  On 22.04.2011, initially the appellant deposited a sum of Rs.6,50,000/- vide cheque No.149093 dated 20.4.2011 drawn on HDC Bank Ltd., Chandigarh and on 22.4.2011, the appellant filed the application form which was duly signed by Shri Anuj Gupta in the capacity of a Director of appellant company.  A perusal of the application form shows that the same was a standard format document which was prepared by the respondents and only the individual particulars of the appellant had to be filled in the blank spaces. The respondents provisionally allotted residential plot bearing No.271 measuring 307.77 sq. yd. on 29.4.2011 in favour of the appellant by issuing a provisional allotment letter dated 29.4.2011.  The allotment letter very categorically provided that the allotment was subject to the acceptance of all terms and conditions set out in the Plot buyer’s Agreement which would be separately mailed to the appellant in due course of time.  On 28.3.2014, aggrieved by the actions of the respondents in not developing the plot, the appellant filed a consumer complaint under Section 17 of the Consumer Protection Act 1986 before the State Commission praying for a direction to the respondents to refund the amount of Rs.37,59,131/-, along with interest @24% per annum, from the respective dates of deposits, till realization and to pay compensation to the tune of Rs.5 lakhs for mental agony and physical harassment and for cost of litigation to the tune of Rs.1 lakh. The State Commission vide its impugned order dated 17.6.2014 dismissed the complaint filed by the appellant holding that the appellant was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act.

3.      In both the complaint cases, the State Commission has given the finding that the complainant is a private limited company,  and therefore, not a consumer.  Challenging this finding of the State Commission, these present appeals have been filed.

4.      Heard the learned counsel for the appellant as well as for the respondents.  Learned counsel for the appellant stated that FA No.437 of 2014 would be taken as lead case.  He submitted that the appellant booked a plot for residence of Director of the Company in Sector 98, SAS Nagar, Mohali on 22.4.2011.  The total cost of the plot was Rs.75,98,250/- and from 2011 till 2013 the appellant had paid Rs.37,59,131/-. Learned counsel argued that the State Commission has only examined the issue whether the complainant was a consumer or not. All other points in the complaint have not been answered by the State Commission.  In the complaint, it was stated that the plot was booked for making the house for the Director of the Company  Mr.Anuj Gupta.  The State Commission has observed that the name of Mr. Anuj Gupta does not appear in the Memorandum of Association or Article of  Association of the company and therefore, the complainant has not come with clean hands.  It has further been observed that the complainant being a private limited company is not a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986.  It has also been observed that the purpose of taking the plot is neither mentioned in the application form of booking nor in the allotment letter.  Accordingly, the consumer complaint has been dismissed by the State Commission. 

5.      Learned counsel stated that private limited company is also a company registered under the Companies Act, 1956 and a company is a consumer as held by the Hon’ble Supreme Court in Karnataka Power Transmission Corporation and Anr. Vs. Ashok Iron Works Private Limited, (2009) 3 SCC 240, wherein the following has been held:-

“18. Section 2(1)(m), is beyond all questions, an interpretation clause, and must have been intended by the Legislature to be taken into account in construing the expression “person” as it occurs in Section 2(1)(d). While defining “person” in Section 2(1)(m), the legislature never intended to exclude a juristic person like company. As a matter of fact, the four categories by way of enumeration mentioned therein is indicative, Categories (i), (ii) & (iv) being unincorporate and Category (iii) corporate, of its intention to include body corporate as well as body un-incorporate. The definition of “person” in Section 2(1)(m) is inclusive and not exhaustive. It does not appear to us to admit of any doubt that  11company is a person within the meaning of Section 2(1)(d) read with Section 2(1)(m) and we hold accordingly.”

6.      It was further argued by the learned counsel for the appellant that if the property is booked or purchased for its Managing Director or Director, it does not debar the company for filing the complaint.  To support his view, learned counsel referred to the following judgment:-

“M/s. Techno Mukund Constructions Vs. Mercedes Benz India Limited & Anr. [2011] NCDRC 44.  It has been held that:

26.  The National Commission held that there was no substance in these contentions because-

“(i)   Company is a legal entity and is entitled to file

 complaint, and

(ii)   The cars are purchased for the use of the Directors and

are not to be used for any activity directly connected with commercial purpose of earning profit.  Cars are not used for hire but are for the personal use of the Directors.  Hence, it cannot be said that the complainant Company has purchased the cars for commercial purpose”.

27.  This view of the matter has been reaffirmed by the National Commission in M/s. Panex Overseas Vs. Mercedes Benz in OP NO. 353 of 2001 decided on 05.01.2010.  We, therefore, reject the plea of the OPs in the present case that the purchaser M/s. Techno Mukund Constructions is not a consumer.  We accordingly, hold that the purchase of the car in question by the Complainant is not a case of purchase for commercial purpose.”

7.      Learned counsel for the respondent stated that a company can be a consumer, but the question is that in the present case, the property was booked for commercial use as the same was for the Director of the Company.  Clearly, this was not a personal property of the Director of the Company, otherwise the Director should have filed the complaint in his personal capacity.  If the Company is providing this plot for residence of its Director, this will definitely be considered as commercial use of the plot concerned. 

8.      I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and have examined the record.  The basic question involved in the present appeal is to decide whether the complainant is a ‘consumer’ in the present case.  The State Commission has taken a view that as the complainant is a private limited company, it is not a consumer and the complaint has been dismissed mainly on this ground.

9.      After the decision of the Hon’ble Supreme Court in Karnataka Power Transmission Corporation and Anr. Vs. Ashok Iron Works Private Limited (supra), no doubt has been left that a Company registered under the Companies Act, 1956, is a person within the meaning of person in Section 2(1)(d) of the Consumer Protection Act 1986.  Thus, the appellant company is a consumer within the provisions of the Consumer Protection Act, 1986.  Now, next question for consideration is whether the transaction done by the appellant company with the respondent amounts to availing of services for any commercial purpose.  The Company had booked a plot for the purpose of getting house constructed for its Director though the State Commission has disputed this fact that the alleged booking was done for this purpose because name of the concerned Director Mr. Anuj Gupta does not find place in the list of Directors mentioned in the Articles of Association of the Company.  First of all, this may be due to time gap and secondly even if the name of the Director for whom the plot was booked is not correct, this fact is not disputed by any party that the Company had booked the plot.  It is the assertion of the complainant that the plot was booked for its Director.  However, even if it is considered that the plot was booked for use of the Company, then also, one has to see whether there was any commercial purpose involved. 

10.    In the judgment of a larger Bench of this Commission passed in CC No.51 of 2006, Crompton Greaves Limited & Anr. Vs. Daimler Chrysler India Private Limited & Ors., decided on 08.7.2016 (NC), this Commission has held the following:-

11.    Moreover, this Commission in a number of recent judgments has taken a view that if the complainant is not involved in trade or business of houses/ flats/plots then he is a consumer. This Commission in the case of Aashish Oberai  Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14.09.2016, held as follows:-

“In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.”

It was also observed that:-

“It would be pertinent to note that there is no evidence of the complainant having purchased and then sold any residential property.  Therefore, it would be difficult to say that he was engaged in the business of the buying and selling of the property or that villa in question was booked by him for speculative purposes”. 

12.      In another case, Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd.,  I(2016) CPJ31(NC), this Commission held the complainant to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and held as follows:-

“In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses.  

7.      Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.

13.    This Commission, in Rajesh Malhotra & Ors. Vs. Acron Developers & 2 Ors., First Appeal No. 1287 of 2014, decided on 05.11.2015 held as follows:-

“12.     Therefore, in order to determine whether the goods are purchased for commercial purpose, the basic pre-requisite would be whether the subject goods have been purchased or the services availed of with the prime motive of trading or business activity in them, for the purpose of making profit, which, as held in Laxmi Engineering (supra) is always a question of fact to be decided in the facts and circumstances of each case”.

14.    From the above examination, it is clear that the appellant company is a consumer under the definition of Consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 and it has been alleged that this consumer has booked the flat for its Director. Clearly no proof has been filed by the opposite parties that the plot in question was purported for the use relating to any commercial purpose like giving on rent or for the purpose of further sale. The appellant is not involved in any trading or business of the plots and therefore, clearly, based on the above judgments particularly passed by this Commission in Aashish Oberai  Vs. Emaar MGF Land Limited (supra), Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd.,(supra) & Rajesh Malhotra & Ors. Vs. Acron Developers & 2 Ors. (supra), the transaction of the complainant would not be considered for commercial purpose.  Moreover, as per the decision of the larger bench of this Commission in CC No.51 of 2006, Crompton Greaves Limited & Anr. Vs. Daimler Chrysler India Private Limited & Ors (supra), if the service has been availed for personal use of the Director of the company, it would not amount to any commercial purpose.  Thus, this is immaterial whether the plot was booked for the Director, Mr. Anuj Gupta or for some other Director.  No other intended use has been alleged by the opposite parties against the clear averment by the complainant that the plot was booked for constructing the residence of a Director.  Clearly, the order dated 17.06.2014 passed by the State Commission is not sustainable in the eye of law.

15.    Based on the above discussion, the appeals are allowed and the separate orders dated 17.06.2014 passed by the State Commission in    CC No.39 of 2014 and CC No.38 of 2014 are set aside and the matters are remanded to the State Commission for restoring the consumer complaints at their original numbers and to decide the same on merits treating the complainant as a consumer. 

16.    Parties to appear before the State Commission on 07.01.2019.