Date of Filing – 05.09.2014
Date of Hearing – 20.04.2017
The assail in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the Final Order dated 04.08.2014 made by the Ld. District Consumer Disputes Redressal Forum, Howrah (for short, Ld. District Forum) in Consumer Complaint no.275/2013. By the impugned order, the Ld. District Forum allowed the complaint lodged by the respondent under Section 12 of the Act on contest with certain directions upon the OP/appellant like – (a) to execute and register the Deed of Conveyance in respect of disputed shop room within 30 days from the date of order; (b) to pay Rs.10,000/- as compensation for harassment and mental agony and (c) Rs.5,000/- as litigation cost.
The Respondent herein being Complainant lodged the complaint asserting that in order to purchase one shop room, she has filed an application and on the basis of that application, on 12.01.2010 the opposite party has allotted one room being shop room No.SP-00-0023 measuring about 403.33 sq. ft. at a total consideration of Rs.10,38,171/- for room No.42 and at the time of allotment, it was agreed that the measurement for the shop room No.42 would be 403.33 sq. ft. The complainant submits that in accordance with the terms and conditions of payment schedule, on and from 01.01.2010 to 09.05.2011, the complainant paid total consideration amount for the said room. But suddenly on 01.02.2012, the complainant received an information through their correspondence dated 01.02.2012 that the complainant has to make payment of Rs.2,02,805/- as extra for enhancement of the area of the room No.42 which stands at present 482.12 sq. ft. in place of 403.33 sq. ft. The complainant has made correspondences with the OP for withdrawal of such arbitrary and unilateral demand but the opposite party did not pay any heed to the same. Hence, the respondent approached the Ld. District Forum with prayer for certain reliefs including direction upon the OP to handover the possession by executing the Sale Deed etc.
The appellant being OP by filing a written version has stated that the complainant is not a ‘consumer’ and as such he cannot approach for any relief under the Consumer Protection Act. The opposite party has submitted that the complainant booked a shop measuring about 403.33 sq. ft. but after completion of the construction, the shop room area enhanced to 482.12 sq. ft. and as such they are ready to execute the Sale Deed subject to payment of the excess money in respect of enhance area.
After evaluation of the materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the OP, as indicated above, which prompted the OP/developer to prefer this appeal.
Mr. P.R. Bakshi, Ld. Advocate appearing for the appellant has submitted that the Ld. District Forum has failed to appreciate that the respondent was not a ‘consumer’ by virtue of terms and conditions in the application form and provisional allotment of residential apartments by and between the parties in respect of the said shop room and as such the respondent cannot be claimed himself a ‘consumer’ in view of Section 2(1)(d) of the Act. Ld. Advocate for the appellant has also submitted that the subject property is a shop room which is meant for commercial use and as such the Ld. District Forum should have dismissed the complaint on that ground alone. In support of his contention, Ld. Advocate for the appellant has placed reliance to several decisions reported in – (1) I (2016) CPJ 219 (NC) (Pardeep Singh Pahal – vs. – TDI Infrastructure Pvt. Ltd.); (2) I (2016) CPJ 113 (NC) APS International Pvt. Ltd. & Anr. – vs. –Emaar MGF Land Ltd.).
Per contra, Mr. Amit Pachal, Ld. Advocate for the respondent has contended that whether the subject property was for earning livelihood or was commercial in nature was considered by the Ld. District Forum and as such the matter cannot be reopened at an appellate stage. Placing reliance to several decisions reported in – (1) 2016 (2) CPR 129 (NC) (Delhi Development Authority – vs. – Amarjeet Singh Lomba), (2) 2016 (3) CPR 298 (NC) (Mr. Elmer Sheldon Dsilva & Anr. – vs. – M/s. Shree Sainath Construction & Developers through its partners) and (3) 2017 (1) CPR 533 (NC) (M/s. Kapil Properties & Anr. – vs. – Om Prakash & Ors.) Ld. Advocate for the respondent has contended that the developer is bound to provide the subject shop room as per allotment letter or buyer’s agreement and cannot enhance the amount of the shop room on the plea of its extension.
I have given due consideration to the submission advanced by the Ld. Advocates appearing for the parties. The impugned order speaks that the Ld. District Forum at the time of passing order only considered two points – (1) Is there any deficiency in service on the part of the OP? and (2) whether the complainant is entitled to get the relief as prayed for? But the Ld. District Forum has not framed any point for adjudication whether the complainant can be categorised as ‘consumer’ as defined in Section 2(1)(d) of the Act, particularly, when specific objection to that effect has been raised in Paragraph-9 of the written version. For appreciation of the situation, it would be worthwhile to reproduce the provisions of Section 2(1)(d) of the Act which provides -
“Consumer means any person who –
- 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 then 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
- 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”.
The foregoing provision provides that the ‘consumer’ is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of services for any commercial purposes. Explanation to Section creates an exception and states that clause ‘commercial purpose’ does not include use by a person of goods bought and used by him and services available by him exclusively for the purpose of earning his livelihood by means of self-employment.
Nowhere in the petition of complaint, the complainant has stated that he intended to purchase the shop room for the purpose of earning his livelihood by means of self-employment. In this regard, it would be pertinent to have a look to the agreement. The agreement in question clearly specifies that the respondent has entered into an agreement to purchase a commercial space. The contents of Paragraph nos. 2, 5, 6 & 24 and several other clauses of the terms and conditions clearly suggest that the subject property was meant for commercial purpose. The caption of the agreement is written as follows – “ TERMS & CONDITIONS FOR ALLOTMENT OF A COMMERCIAL SPACE/RETAIL UNIT AT THE KOLKATA WEST INTERNATION CITY” Therefore, there cannot be any dispute that the shop in question was intended to purchase for commercial use.
Needless to say, in order to have protection of explanation of Section 2(1)(d)(ii) of the Act, one must establish that he himself was engaged in the activity which generates livelihood. Acting in the supervising capacity would not satisfy the requirement of explanation. In the case beforehand, the respondent /complainant has ever mentioned that he intended to purchase the shop room as a self-employment for earning his livelihood. Therefore, the respondent cannot be termed as ‘consumer’ as defined in Section 2(1)(d) of the Act. The Ld. District Forum did not consider this point at all whether the complainant was a consumer or not. It is well settled that commercial users cannot maintain consumer complaint. In that perspective, I am constrained to interfere with the order impugned. In other words, the impugned order being not sustainable in the eye of law, it is liable to set aside.
In view of the above, the appeal is allowed on contest. There will be, however, no order as to costs.
The impugned order is hereby set aside.
However, this order will not debar the Respondent/complainant to approach the appropriate Court/Forum for redressal of his grievances and in the process, in order to overcome the hurdle of limitation, he may seek assistance of the observation of Hon’ble Supreme Court reported in (1995) 3 SCC 583 ( Laxmi Engineering Works – vs.- P.S.G. Industrial Institute).
Consequently, the CC No.HDF 275 of 2013 stands dismissed.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Howrah for information.
