STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                     First Appeal No  :          243 & 368 of 2015

Date of Institution:       12.03.2015 & 23.04.2015     

                                     Date of Decision:          16.07.2015

Appeal No.243 of 2015

Smt. Raj Dulari wife of Sh. Karam Singh, resident of House No.C/46, DCR University of Science and Technology, Murthal, Sonepat.

                             Appellant-Complainant

Versus

1.      Taneja Developers & Infrastructure Private Limited, Registered Office at : 9 Kasturba Gandhi Marg, New Delhi – 11000, through its Chief Managing Director.

2.      Taneja Developers & Infrastructure Private Limited, G-7, Ground Floor, Connaught Circus, (Opposite Madras Hotel Block) New Delhi 110001 through its Managing Director.

3.      Taneja Developers & Infrastructure Private Limited, TDI Park Street Project, Kamaspur, District Sonepat – 131001 through its Manager.

Respondents-Opposite Parties

Appeal No.368 of 2015

1.      TDI Infrastructure Limited, Registered Office at : 9 Kasturba Gandhi Marg, New Delhi, through its Chief Managing Director.

2.      TDI Infrastructure Limited, G-7, Ground Floor, Connaught Circus, (Opposite Madras Hotel Block) New Delhi through its Managing Director.

3.      TDI Infrastructure Limited, TDI Park Street Project, Kamaspur, District Sonepat through its Manager.

          All through their authorized representative Sh. Tejinder Rathee son of Sh. D.P. Rathee, resident of House No.3280, Sector 15, Sonepat.

                             Appellants-Opposite Parties

Versus

Smt. Raj Dulari wife of Sh. Karam Singh, resident of House No.C/46, DCR University of Science and Technology, Murthal, Sonepat.

Respondent-Complainant

Present:              Mr. R.K. Ravesh, Advocate for the complainant Smt. Raj Dulari

                             Mr. Munish Gupta, Advocate for TDI Infrastructure Limited-opposite parties.

                                                   O R D E R

NAWAB SINGH J.(ORAL)

          This order shall dispose of afore-mentioned appeals bearing No.243 & 368 of 2015 filed by the complainant and opposite parties, respectively because they have arisen out of common order dated February 23^rd, 2015 passed by District Consumer Disputes Redressal Forum (for short District Forum), Sonepat, in complaint No.271 of 2013.

2.      Smt. Raj Dulari-complainant purchased a shop No.FF-184, measuring 449.03 sq. feet in the commercial complex Park Street at Kamaspur.  She paid Rs.5,43,729/- to Taneja Developers & Infrastructure Private Limited -opposite parties (for short ‘builder’).  The builder cancelled the allotment of shop on the ground of non-payment of installments.  Hence, the complaint.

3.      The Builder in its reply pleaded that the shop in question was initially booked by one O.P. Munjal and Sunil Kumar.  Lateron, the allotment of shop was transferred in the name of complainant.  The complainant purchased the shop for commercial purpose.  The allotment of the shop was cancelled due to non-payment of dues. 

4.      After evaluating the evidence of the parties, the District Forum allowed the complaint by directing the Builder to refund the deposited amount alongwith interest at the rate of 9% per annum from the date of filing the complaint till its actual payment.

5.      The complainant has filed appeal for enhancement of the interest.  Builder has come up in appeal for setting aside of the impugned order. 

6.      Learned counsel for the complainant has urged that the District Forum awarded interest on the deposited amount from the date of filing of the complaint whereas it should have been from the date of deposit.

7.      On the other hand, learned counsel for the Builder has stated that the shop in question was purchased for commercial purpose. The complainant could not be termed as ‘consumer’.  The complainant was defaulter in making the payment. Thus, the allotment of shop was rightly cancelled.

8.      Indisputably, complainant purchased the shop and paid Rs.5,43,729/- to the builder.  The builder failed to give possession of the shop.  The District Forum directed the builder to refund the deposited amount, that is, Rs.5,43,729/- with interest at the rate of 9% per annum from the date of filing of the complaint. This Commission is of the view that the complainant has been adequately compensated by the District Forum.

9.      Now coming to the arguments raised on behalf of the Builder.

          Section 2 (i) (d) of the Act defines ‘consumer’. 

          (d) "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 purposes;

          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.    A bare perusal of the provisions of Section 2(i)(d) reveals that for the purposes of this Act a “Consumer” means : (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration (iii) but does not include a person who buys such goods for resale or for any commercial purpose. 

11.    The expression “commercial purpose” is not defined in the Act as such.  In common parlance, the term ‘commercial’ indicates that when the goods are bought by a person not for his direct consumption but used for profit making, it may be said that goods are used for commercial purpose.  However, the Explanation added later to Section 2(d)(i) by Ordinance/Amendment Act, 2003, excludes one category of profit making exercise from the purview of ‘commercial purpose’, namely, when the goods bought by a person are used “exclusively for the purposes of earning his livelihood by means of self-employment.

12.    The ambit of this exception is circumscribed by three conditions: one, the goods bought by a person are used for “earning his livelihood”, two, the usage of the goods bought is “by means of self-employment”, and three, such an activity must be undertaken “exclusively” for earning livelihood by means of self-employment.

13.    Whether a person would fall within the definition of ‘consumer’ or not would be a question of fact in every case. Without leading any cogent evidence it would not be possible to say that the shop was not purchased by the complainant for the purpose of earning her livelihood by means of self employment. Livelihood means securing necessities of life and self employed means a situation in which an individual works for himself or herself instead of working for an employer that pays a salary or a wage.  A self employed individual earns his or her income through conducting profitable operations which they operate directly. 

14.    Learned counsel for the Builder has placed reliance upon Indrajit Dutta versus Samriddhi Developers Private Limited and others, First Appeal No.1219 of 2014, NCDRC, New Delhi decided on February 05^th, 2015. In this case, the complainant had purchased two flats.  The Hon’ble National Commission after relying upon [III (2012) CPJ 315], Chilkuri Adarsh V. Ess Ess Vee Constructions, [IV (2007) CPJ 199] Jagmohan Chabra and Anr. Vs. DLF Universal Ltd. and Consumer Complaint No.5/2014 & 6/2014, Sunil Gupta V. Today Homes and Infrastructure (Pvt) Limited held that complainant had purchased two flats, which could not be said to be for his residential purpose but amounts to be investment for commercial purpose and complainant did not fall within the purview of ‘consumer’.

15.    The judgment relied upon by the learned counsel for the Builder is not applicable to the facts of the present case because in that case, complainant had purchased two flats whereas in the present case, complainant purchased a shop. 

16.    In view of what has been stated above, it is held that merely by purchasing a shop by the complainant for earning her livelihood would not ipso facto put her out of the purview of ‘consumer’ as defined in Section 2(i)(d) of the Act. 

17.    For the reasons recorded supra, both the appeals are dismissed.

18.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal No.368 of 2015 be refunded to the Smt. Raj Dulari-complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

19.    The original order is attached with appeal No.243 of 2015 and certified copy be attached with appeal No.368 of 2015.

U.K