Order No.
The Ld. Advocate for the complainant is present. The Ld. Advocate for the opposite parties is also present and prays for time for filing questionnaire.
The Ld. Advocate for the complainant files statement of account in compliance with order no. 5 dated 02.02.2023.
Perused and considred the statement of account. Heard both sides.
In course of hearing we perused the complaint application and materials on record.
It appears from the complaint that Smt. Jyoti Chetani and Sri. Deepak Chetani are the complainants and Rajarhat IT Park Ltd. is the opposite party.
It further appears from the complaint that originally the West Bengal Housing Infrastructure Development Corporation Limited was the owner of the property. Originally one Bharti Airtel Limited was the allotee of the plots of land at New Town, Kolkata admeasuring about 16.189sq.mt. by the West Bengal Housing Infrastructure Development Corporation Limited. The said land was allotted to enable the allottee to erect a building thereon for setting up Eastern hub campus involving West Bengal and other eastern states for accommodating offices, R&D centres, IT facilities, call centres, mobile switching centres, training centres, ground-based tower and high-tech telecom infrastructure facilities. The opposite party is a wholly owned subsidiary of Bharati Realty Limited, a company registered under the Companies Act, 1956. The said Bharti Airtel Limited was subsequently permitted to be changed to Bharti Realty Limited and the said company eventually formed a special purpose vehicle (SPV) under the name and style of Rajarhat IT Park Ltd as its owned subsidiary company and on the request of Bharti Realty Limited, the said land was allotted in favour of Rajarhat IT Park Ltd by the West Bengal Housing Infrastructure Development Corporation Limited for the same purpose as stated above. Perpetual indemnity was executed between the West Bengal Housing Infrastructure Development Corporation Limited, Bharti Realty Ltd and Rajarhat IT Park Ltd. dated 11.02.2021. Thereafter, the opposite party/Rajarhat IT Park Ltd. constructed building consisting of office and retail units with basement and other services and development. A complex under the name and style ‘Bharti Astra Towers’is erected in accordance with the building sanction plan approved by the New Town Kolkata Development Authority.
It is the specific case of the complainant that they were in search of the office space to carry out their business for their livelihood and booked a unit being ASO-226 in the building named ‘Bharti Astra Tower’ under perpetual lease for 999 years for office unit and car parking space submitting two cheques dated 25.02.2013 for a sum of Rs. 3,50,000 and Rs. 25,000/- towards payment of booking amount with the opposite party. Accordingly the opposite party allotted the said office unit being ASO-226 and one mechanical car parking being no. 247 to the complainants on execution of agreement to lease dated 18.07.2013. The opposite party handed over the actual possession of the office unit on 22.01.2018 but till date has not executed any deed of perpetual lease in their favour neither handed over the completion certificate of the building. Hence this case.
The definition of consumer as enumerated in Section 2(7)(ii) is as follows:-
Consumer means any person who-
“hires or avails of any service for a consideration which has been paid or promised or partly paid or partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of first mentioned person, but does not include a person who avails of such service for any commercial purpose.
Explanation.-For the purposes of this clause,-
- the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
It is well settled that ‘commercial purpose’ is a question of fact to be decided in the facts of each case.
In Sunil Kohli & Another Vs. M/s. Purearth Infrastructure Ltd. Hon’ble Apex Court observed that as ‘commercial purpose’ is not defined in the Act, controversy has arisen with respect to the meaning of the expression ‘commercial purpose’.
In the ordinary dictionary meaning ‘commercial’ denotes ‘pertaining to commerce’. It means ‘connected with, or engage in commerce; mercantile; having profit as the main aim’.
It is well settled that if goods or service is purchased by a purchaser for commercial use for the purpose of earning his livelihood by means of self-employment, the purchaser of goods or service is yet a ‘consumer’. In other words it can be explained that if a buyer of goods or service use the same by means of self-employment, for earning his livelihood, it would not be treated as commercial purpose and he does not seized to be a consumer for the purpose of the Act. However, words employed in the explanation of Section 2(7)(ii) viz. ‘exclusively for the purpose of earning his livelihood’, and ‘by means of self-employment’ make the intention of the legislature abundantly clear that the goods or service bought must be used by the buyer himself and by employing himself for earning his livelihood.
On careful scrutiny we find the complainants not stated in the four corner of the complaint stated that they booked the commercial space for running business for the purpose of earning their livelihood ‘by means of self-employment.’
Moreover, the complaint application is absolutely silent about the nature and extend of the business of the complainants. The educational qualification of the complainants also not disclosed in the complaint application to prima facie show that they are able to run any business by self-employment either in IT field, call centres, training centres, R&D centres etc from where we can exclude that the said space was not taken on lease by the complainants for commercial purpose.
From the averments made in the complaint by the complainants simply appears that the said space was taken on lease by them from the opposite party is for commercial purpose.
Having considered the discussion made above we are of the opinion that the complainants are not a consumer in terms of Section 2(7)(ii) of the Consumer Protection Act, 2019.
Therefore, the case is not maintainable before this Commission.
Hence, it is,
Ordered
that the Complaint case be and the same is dismissed on contest, but without cost.
Dictated and Corrected by
[HON'BLE MRS. Firoza Khatoon]
PRESIDENT
