STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 1091/2004
JUDGMENT DATED:29.11.2012
PRESENT
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
1. Abdul Kalam,
Rizana Icecream Parlour,
Shop No.5-8, GCDA Shopping Complex,
Marine Drive, Kochi-35.
: APPELLANTS
2. Ansari, Rizana Icecream Parlour,
Shop.No.5-8, GCDA Shopping Complex,
Marine Drive, Kochi-35.
(By Adv:Sri.M.Nizamudeen)
Vs.
M/s Skyline Peevees Properties Pvt. Ltd.,
41/3498, Rajaji Road, Kochi-35, R/by its : RESPONDENT
Managing director Mr. Abdul Aziz.
(By Adv:Sri. Sreelal N. Warrior)
JUDGMENT
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
The appellants were the complainants in OP.314/04 in the CDRF, Ernakulam. The 2nd complainant booked an apartment (shop No.1) in the ground floor of the apartment complex to be constructed by the opposite party. At the time of booking the apartment on 21.10.94 the complainants paid an advance amount of Rs.1,80,000/- to the opposite party for the purpose of effecting construction. Together with the subsequent payments the complainants paid Rs.5,06,000/- as the price of the apartment but though the opposite party completed the construction they refused to hand over possession of the apartment to the complainants. The complainants approached the Forum alleging that the opposite party was trying to sell the apartment to third party. They sought a direction to hand over possession of the apartment to them and compensation on the allegation that there was deficiency of service and unfair trade practice.
2. The opposite party entered appearance and raised preliminary objection that the complainants were not consumers and that the complaint was barred by limitation. As to the 2nd question the Forum held that the question whether there was limitation in filing the complaint required evidence to be decided in as much as the limitation starts only from the date of knowledge of the intention of the opposite party to sell away the apartment. As to the 2nd contention the Forum held that the allegations in the complaint showed that the 2nd complainant is a business man conducting Ice Cream Parlour and Fast Food business. Further the allegations in the complaint showed that the intention was to start business in shop No.1 to be purchased by him. Therefore according to the Forum the service was availed by the complainants for commercial purpose. Since there was no pleading that the service was availed for the purpose of earning livelihood by means of self-employment, the 2nd complainant is not a consumer and therefore the complaint was not maintainable. Accordingly upholding the preliminary objection the Forum dismissed the complaint. Hence the appeal.
3. The only question that arises for consideration is whether the Forum was right in upholding the preliminary objection that the complainant was not a consumer as defined in the Consumer Protection Act.
4. The learned counsel for the appellants mainly relied on the following decisions to urge that they are consumers within the meaning of the Cosnumer Protection Act. In Sita Ram Darji Vs. Maheshwari Builders & Others II (1991) CPJ 272, the builders issued advertisements in newspapers for allotment of plots and the complainant therein paid Rs.250/- as part payment but the opposite party failed to allot the plot or refund the amount paid. It was held that the complainant was a consumer. In Sunder Kashyap Vs. N.Palta II (1995)CPJ 223 (NC), the complainant approached a property dealer for purchasing a flat and paid advance amount of Rs.90,000/-. The property dealer failed to render and perform the service. It was held that the service rendered by the property dealer fell within the definition of service. In Narendra K. Sodhi Vs. Mohan B. Sawant 1(2007) CPJ 241 (NC), the agreement was to deliver possession of a flat for which out of total consideration of Rs.4,76,000/- the complainant had paid Rs.4,52,000/- on time. It was held that in the absence of evidence from the side of the opposite party that there was no deficiency in service, the Fora rightly directed the opposite party to refund the amount.
5. It was also urged for the appellants that commercial purpose mentioned in section2(1)(d) of the Consumer Protection Act means that the goods purchased or service hired should be used in activity directly intended to generate profit which is the main aim of commercial purpose. (Vide Harsolia Motors Vs. National Insurance Co. Ltd. 1 (2005) CPJ 27 (NC).
6. A plain reading of section 2(1)(d) of the Consumer Protection Act shows that goods obtained or the services hired should be for commercial purpose. Commercial purpose does not include, as per the explanation goods bought and services availed exclusively for the purpose of earning livelihood by means of self-employment. After the amendment of sec.2(1)(O) that came into effect on 18.6.93. “Housing construction” is service within the meaning of the Consumer Protection Act. As far as this service of housing construction is concerned; the immediate commercial purpose would be when the service of housing construction is availed for the purpose of resale of the houses or flats constructed. In this case the flat was purchased for the purpose of own occupation. It is true that Ice cream parlour was intended to be conducted. That may be commercial activity but only the secondary purpose of availing service. The primary purpose would have been commercial purpose had the purchase or availing the service was for the purpose of resale of the flat. In this case, only the secondary purpose was commercial activity; that too to be done by the purchaser himself. Under such circumstances it cannot at all be said that the complainant was not a consumer within the provisions of the Consumer Protection Act.
7. As to the observation of the Forum that the complainant had not pleaded that he had availed the services for the purpose of earning livelihood, it may be mentioned that the opportunity to raise such a contention arises only after the opposite party has filed his version or raises preliminary objection. At any rate whether the service was availed for earning livelihood is not a pure question of law but a mixed question of fact and Law. This could be properly decided only during trial. Even the question whether the service was availed for commercial purpose is not strictly a question of law but a mixed question of law and fact and cannot be appropriately decided at the preliminary stage. It is pertinent to notice that the Forum has held that the question of limitation could be appropriately decided only after taking evidence. In the case of the preliminary objection that the service was availed for commercial purpose the said reasoning applied with more force. Not only that such preliminary questions do not finally and completely solve the issues involved. Consumer Protection Act contemplates expeditious disposal of cases in a time bound manner and deciding preliminary objection and the merits of the claim stage by stage would only delay the final disposal of such complaints. So it was desirable that the Forum adjudicated the whole issues involved after taking evidence. In view of the foregoing conclusions the impugned order of the Forum is only to be set aside. Since evidence was not recorded on the disputed issues, the complaint should necessarily go back to the Forum for trial and disposal in accordance with law.
In the result the appeal is allowed. The order of the CDRF, Ernakulam in OP.314/04 dated:22.9.04 is set aside. The matter is remanded back to the Forum for affording opportunity to the opposite party to file version and thereafter for recording evidence in accordance with law and disposing of the complaint. The parties are directed to bear their costs in the appeal. Parties shall appear before the Forum below on 28.12.2012.
K. CHANDRADAS NADAR : JUDICIAL MEMBER
VL.
