SAMIKSHA BHATTACHARYA, MEMBER 

The instant Appeal has been filed by the appellants challenging the order dated 18.03.2019 passed by the Ld. District Consumer Disputes Redressal Commission, (in short ‘DCDRC’), Hooghly, in CC/02/2017.

The brief facts, in a nutshell, are that the respondent/complainant (hereinafter referred to as ‘complainant’) was  the tenant  in respect of a shop room measuring 140.25 sq. ft. (55.25 sq. ft. shop room and 85 sq. ft. kitchen in ground floor in  Holding No. 128, B.B.D. Road under Uttarpara Kotrung Municipality, District Hooghly.

An agreement  was executed by and between the complainant and the appellants/OPs (hereinafter  referred to as ‘OPs’) on 14.12.2012 for  construction of multi storied building. As per agreement, the complainant  had to vacate the possession of the  shop room  and OPs were agreed to give the  peaceful  vacant possession  to the complainant on  ownership basis in the same position i.e., the ground floor  measuring 140.25 sq. ft. for the  shop room   along with road frontage of 6  ft. The OPs completed the multi storied  building  but did not complete the small  works of the said   ground  floor shop room. The complainant  repeatedly requested the OPs to complete the same but that went in vain. Therefore,   complainant suffered a lot of income of Rs.4,32,000/- in total @ Rs.9,000/- per month.

Finding no other alternative, complainant filed the complaint case being No. CC/02/2017 before  the Ld. DCDRC, Hooghly with prayer to complete the construction of the B Schedule shop room as per terms  of agreement  and to hand over the possession of the same and to execute and register the sale deed in favour  of the complainant along with compensation of Rs.50,000/-  and litigastion cost of Rs.10,000/-. The  OPs  No. 1 to 3 contested  the case by  filing written version denying all the material allegations inter alia stated that the complainant is  not the tenants then and  the complainant   never paid any amount in favour of the OPs No. 1 to 3. 

The Ld. DCDRC passed the judgment in favour of the complainants which is reproduced as under:

“That the complaint case being No. 2/2017 be and the same is allowed on contest against the opposite party, with a litigation cost of Rs.6,000/- to be paid by the opposite party.

The Opposite party is directed to deliver the shop room and to execute and register the deed of conveyance in favour of the complainant in accordance with the terms  of the agreement within 45 days from the date of passing this order otherwise the complainant may get the deed executed through the machinery of this Forum.

The opposite party is directed to pay compensation amounting to Rs.20,000/- to this  complainant for mental pain and agony within the time  framed.

The opposite party is further directed to pay a sum of Rs.2,00,000/- for loss of earnings after the expiry of time period of completion of building till date as per agreement.

At the event of failure to comply with the order the opposite party shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry  of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.”

Being aggrieved by and dissatisfied with the above order, the OPs filed the instant appeal on the ground that the Ld. Forum below acted illegally and with material irregularity in exercise of the jurisdiction under law in passing the order impugned.  The Ld. DCDRC passed the impugned order without considering the proposition of law and has not  followed the  spirit of provision of CP Act, 1986. The complainant is  not the  ‘consumers’ within the  purview of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. The complainant  has  not paid or promised or partly paid or partly promised in any situation of deferred payment.

Accordingly, by no stretch of imagination, she  can be called as ‘consumer’ within the  purview of Consumer Protection Act, 1986.

Complainant has failed to prove that  the complainant is  the ‘consumer’. It is admitted fact that the agreement  in question was for delivery of grocery shop room which is to be used  for commercial purpose and since the complainant failed to prove themselves as ‘consumer’ within the explanation of Section (2)(1)(d)(ii) of CP.1986 the burden of proof certain lies upon the complainant to the effect that the  income of shop  room is the only source of income of family. The complainant have failed to prove that the property was for self employment.

Hence the OPs have prayed for  issuing a  rule calling upon the complainants to show cause as to why  the final order dated 18.03.2019 passed by Ld. DCDRC, Hooghly being CC/02/2017 shall not be set aside and to pass further order.

In course of argument, Ld. Counsel for the OPs has mainly submitted that on the point that the complaint is not maintainable since the complainants are not the consumers.
Since the business run by the complainants is for commercial purpose, the complaint is not maintainable. He has further mentioned that the term ‘commercial purpose’  denotes “commercial activity” that is any type of business or activity which is carried on for profit. But the goods purchased or services availed by a person, to become for commercial purposes, must have a direct nexus with  the commercial activity which that person is carrying on.

“In Webster’s Third New International  Dictionary it is stated that the term ‘commercial’ means “of, in or relating to  commerce”. In general “commercial” includes the transportation of passengers (Caserta v  Home lines Agency, inc. D.C.N.Y 154F Supp 356, 358).

The Ld. Advocate for the OPs has cited  the judgment passed by National Commission in Lakshmi Engineering PSG Industrial institute [(1995) 2 CPJ 1 (SC)] where the Hon’ble National Commission  has held that where a person purchased a goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit”  he will not be a  “consumer” within the meaning of Section (2)(1)(d)(i)  of the CP Act. He has further  cited the judgment  passed by Hon’ble National Commission passed in Super  Engineer Corporation Vs. Sanjay Vinayak   Ponti [1992 CPJ 95 (NC)] where the  Ho’ble Commission has held that to decide whether the purchase is for commercial  purpose or not  it  is to be seen whether the goods purchased, say, a machine, ‘was to be used for profit making activity on a large or for use in small venture in order to make a living as distinguish from a large scale activity for profit’. He has further submitted that self employment should be the principal determining factor .

That the agreement in question is an agreement simplicitor without consideration entered for providing its space for reconstruction and  accordingly, no service to be provided by the opposite parties, herein the OPs as the agreement was basically for building and re-building purpose and accordingly, the remedy to the tenant for such failure  of the landlord is provided in the West Bengal Premises Tenancy Act, 1997. Hence, the complaint  is not maintainable.

He has further argued that the agreement in question is an unregistered agreement. He has  submitted that there are  plethora of cases which  has firmly laid down under the proviso to Section 49 of the Act, an unregistered document can also be admitted into evidence for a collateral fact/collateral purpose. However, in order to admit such  document even for collateral purpose, the document so tendered must be duly stamped or should comply with the requirements of  Section 35 of the Stamp Act, with which, such document cannot be received in evidence unless duty and penalty are paid under Seciton 35 of the Stamp Act [Avinash Kumar Chauhan vs. Vijay Krishna Mishra (2009) 2 SCC 532].

The Ld. Advocate for the OPs has also submitted that there are huge illegalities in the entire proceeding of the Ld. DCDRC. The Ld. DCDRC allowed the  interim prayer  of the complainants vide order No. 4  dated 21.02.2017. The OPs have stated that they have reserved their right to challenge the said order on the ground that the same was  a non-speaking order since neither the fact was mentioned nor the OPs were allowed to file their objection or even OPs were not allowed to have a look into  the documents relied by the complainants. In spite of pendency of interim application, the Ld. DCDRC directed the complaint to  file evidence and after filing the evidence on affidavit by the complainants the Ld. DCDRC  fixed a date for filing evidence on affidavit by the  OPs instead of giving any opportunity to OPs to file the questionnaire against the evidence on affidavit by the complainants.  Thereafter, Ld. DCDRC fixed the date for final hearing though the interim petitions were pending. Thereafter, the OPs filed their Revision Petition being No. 266 of 2017 before this Commission.

In course of argument, the  Ld. Advocate for the  OPs  has cited the following judgments  passed by Hon’ble Apex Court:

• Laxmi Engineering vs. PSG  Industrial Institute  [1995 2 CPJ 1 (SC)]
• Super Engineering Corporation vs. Sanjay Vinayak Ponti [1992 CPJ 95 (NC)]
• Kishore  Lal vs. Chairman, Employees State Insurance Corporation  [2007 (4) SCC 579 ]
• Birla Technologies Ltd. vs. Neutral Glass and Allied Industries Ltd. [2011(1) SCC 525]
• Faqir Chand Gulati vs. Uppal Agencies Pvt. Ltd. [(2008) 10 SCC 345]

Ld. Advocate for the complainant has submitted before us   that on 14.12.2012, the complainant entered into an agreement with the OPs on the terms  and conditions as stated in the said agreement. The OPs had not paid the amount as per agreement towards compensation  which was agreed to pay till the handover of the new shop  room to the complainant. The registration of the new shop room is pending till date. As per sanctioned building dated 25.03.2013 Registration No. 546  there are three shop rooms sanctioned by the Municipality but physically it appears that there are four shop rooms in place of three shop rooms violating said sanctioned plan. The complainant on several occasions repeatedly requested the OPs to hand over the possession of the shop rooms for starting their business but the  OPs with mala fide intention did not pay any heed. The said shop room is closed since the date of agreement that is 14.12.2012 which is the only source of income of the complainant. Ld. Advocate for the complainant has further submitted that it is the settled proposition of law that when the complainant surrendered the tenanted portion they can be termed as consumer as per  Section 2(1)(d)(ii) of the CP Act, 1986. The agreement is acted  upon all the parties to the said agreement as it has already been performed partly by the  complainant by surrendering their tenancy as per the agreement in favour of OPs for enjoyment of the property by  both the sides. The OPs cannot deny to perform their part as per the agreement for their own  benefit.

Ld. Advocate for the complainant has further submitted that filing questionnaire is not mandatory and in this regard the   Ld. Advocate for the complainant has filed the two decisions reported in 2012 law suit (CO 959) and 2014 Law suit (CO 722). The Ld. DCDRC passed the order of interim injunction on 09.08.2016 after hearing both sides and on perusal of materials on record and considering all aspects directing the OPs not to alienate, transfer or sell the scheduled property until further order.

Ld. Advocate for the complainants has submitted that the complainants have to  incur huge monetary expenses due to enhancement of government valuation of the said property for registration now i.e.,  after passing of five years from the date of execution of the agreement in respect of said shop room in favour of the complainants. The OPs are liable to execute the deed of conveyance and to deliver the  possession in respect of the shop room in favour of the complainants. The Ld. DCDRC   has rightly passed  the order in favour of the complainants and there is no illegality in the impugned order. Therefore, the complainants have  prayed for rejection of the instant appeal with compensatory cost and to uphold the order passed by the Ld. DCDRC in CC/02/2017.

Upon hearing the parties and  on perusal of the entire materials on record  we think first we have to consider whether the complainants are consumers or not. This issue was explained in the first portion of the ‘Decision with Reasons’ in the impugned order dated 18.03.201. In the case  the complainants have surrendered their tenancy, and that is  to be considered as consideration. The OPs were agreed  to construct multi storied building and they are agreed to deliver the shop room as ownership basis to the complainants in lieu of surrendering the tenancy as consideration. Moreover, by filing  affidavit complainant has submitted that  the  complainant was running her business for her livelihood purpose by means self employment which  was not controverted by the OPs.  Upon perusal of record, it can safely be said that the business of the complainant cannot be considered  as large scale business for making profit. Therefore, the complainants are obviously the ‘consumers’ under Section 2(1)(d)(ii) of CP Act, 1986.

Next point is to be considered whether the agreement dated 14.12.2012 in enforceable in law though it is an unregistered document. The said agreement is acted upon all the parties which has  already been performed by the complainant by surrendering  their tenancy as per terms of agreement. The OPs cannot deny to perform their part for their own benefit or cannot go beyond the agreement in respect of delivery of the shop room.

Another point is to be considered whether filing questionnaire is mandatory or not. The complainants have cited two decisions  in this regard.

The ground mentioned in the memo of appeal is that there are  irregularities in the proceeding  before the Ld. DCDRC. This ground cannot be entertained since challenging these irregularities OPs have already filed the  revision petition being  No. RP/266/2017 challenging  order dated 24.07.2017 passed by Ld. DCDRC and the revision petition was allowed with order by giving the opportunity to the parties to file the respective evidence, questionnaire  against such evidence and replied thereto. Therefore, at this juncture, the OPs cannot raise about the  irregularities in the proceedings of the Ld. DCDRC which orders were not challenged before this Commission.

It is admitted fact that the complainant was the tenants who were running their business in the scheduled mentioned property and  entered into the agreement with the OPs  on 14.12.2012 to construct the multi storied building and to get their share as per agreement. It is also admitted  fact that  as per agreement for sale the complainants would vacate the possession of the  grocery shop and the complainants would get the vacant possession on the ground floor measuring  55.25 sq. ft. shop room and 85 sq. ft. kitchen i.e.,140.25 sq. ft in total in the ground floor along with road in front of shop room measuring 6  sq. ft. It is also admitted fact  that OPs have not completed the flat as per scheduled time mentioned in the agreement.

Till date, the OPs have not delivered the shop room to the complainant. Therefore, it is clear that the OPs are liable for deficiency in service and unfair trade practice.

The judgment cited by the appellants/OPs is not at all applicable in the case in hand.

As per above discussion, we find no infirmity  or illegality or perversity  in the impugned order warranting any interference  of this Commission. Since there is no irregularities the appeal is dismissed  being devoid of merit with cost.

The impugned order dated 18.03.2019  passed by Ld. DCDRC Hooghly in CC/02/2017 in hereby affirmed.

The appeal has been  filed only to delay the matter and to harass the respondent/complainant. Therefore, the instant appeal is dismissed with cost of Rs.10,000/- (Rupees ten thousand) only payable to the complainant/respondent by the appellants/OPs within 45(Forty five)  days hereof.

The appeal is thus, disposed of accordingly.