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M/s Advik Industries Ltd. vs. M/s. Uppal Housing Limited dated 2012-09-03

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
CONSUMER COMPLAINT NO. 146 OF 2011
 
M/s Advik Industries Ltd.                                  
(Formerly DU-LITE Safety Services Pvt. Ltd.)
205, Shri Ram House, 5398/70 Regarpura
Arya Samaj Road, Karol Bagh
New Delhi – 110 005                                                     ..... Complainant
Versus
M/s. Uppal Housing Limited                             
(Formerly Uppal Housing Pvt. Ltd.)
S-39A, Panchsheel Park
New Delhi – 110 017
 
Also at:
M/s. Uppal Housing Ltd.
M-6, First Floor, District Centre
Jasola, New Delhi – 110 025                                     …. Opposite Party
 
 
BEFORE:
      HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
      HON’BLE MR. VINAY KUMAR, MEMBER
       
 
For the Complainant         :   Mr. Amulya Dhingra, Advocate
                                                    
                                               
Pronounced on_3RD  September,  2012
 
 
ORDER
 
JUSTICE J.M. MALIK
 
1.      The controversy  in this case swirls around the question, “Whether the complainant  is  a ‘consumer’  under the Consumer Protection Act, 1986?” 
2.      M/s. Advik Industries Ltd. (Formerly known as Du-Lite Safety Services Pvt. Ltd.), the complainant is a limited Company which transacts the business of investing its funds in Equity and Preference Shares, Stocks, Bonds, etc.  The complainant applied for allotment of Second Floor of the commercial Space/Unit No. 216, Super Area 3493 sq.ft., in “Uppal’s Element 9” in the ‘Office Use’ category on 28.06.2006 to the OP, M/s. Uppal Housing Ltd (Formerly known as M/s. Uppal Housing Pvt. Ltd.), New Delhi.  The complainant paid a sum of Rs.26,00,000/-.  The complainant was assured that an Agreement would be executed, thereafter, a printed Agreement was signed on 01.06.2007.  The complainant further paid the installments in the sum of Rs.1,13,15,440/-, the total consideration was to be paid in the sum of Rs.1,81,63,600/-.  Thereafter, no physical possession of the disputed premises was handed over to the complainant. Ultimately, this complaint was filed under section 21 of the Consumer Protection Act, 1986, on 22.07.2011.
 
3.      We have heard the learned counsel for the complainant.  The learned counsel for the complainant vehemently argued that the complainant is a  “consumer” in this case.  He has cited few authorities in support of his case, which are reported in (1) Karnataka Power Transmission Corporation Ltd., & Anr. Vs. Ashok Iron Works Pvt. Ltd. & Anr., AIR 2009 (1) SCR 1109,  (2) judgments of this Commission in Delhi Cantonment Board Vs. S.K. Kapoor & Associates,  in Revision Petition Nos. 2501 and 2669 of 2004,   decided on 26.10.2006,  (3) M/s. Techno Mukund Constructions Vs. Mercedes Benz India Ltd. & Anr., in OP No. 298 of 2000, decided on 20.01.2011 and (4) M/s. Harsolia Motors Vs. National Insurance Co. Ltd., in First Appeal  NOs. 159, 160 & 161 OF 2004, decided on 03.12.2004.
 
4.      He submitted that the complainant is a “consumer” and  had suffered at the  hands of the OP. 
 
5.      The arguments submitted by the counsel for the complainant have left no impression upon us.  Section 2 (1) (d) is very important.  It is reproduced as follows :-
 
     Section 2(1)(d) (ii)  defines “consumer”  as follows :-
“Section 2 (1) (d), ‘consumer’ means any person who ---
(i)   xxxxx
(ii)  hires 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 the services for consideration paid or promise,  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”.
The explanation appended to Section 2 (1) (d) (ii) is as follows:-
 
[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”].
 
6.      The facts of the aforesaid authorities are different.  Whether  in  such like cases, the complainant is a “consumer” or “not”, did not fall in their consideration.  In this case, the ingredient  “for the purpose of the earning his livelihood by means of self-employment”, is conspicuously missing. This ingredient finds no  place in the complaint.   In the authority, M/s. Harsolia Motors Vs. National Insurance Co. Ltd., (supra),  its relevant portion runs as follows:-
“In support of his submission, learned counsel Sh.Sharma, referred to the judicial dictionary meaning of the words ‘commercial purpose’ which is as under:-
     “The word “commercial” according to the Oxford Dictionary means viewed as a matter of profit and loss. The word “purpose” means “object which is in view or for which is made” : “aim” “amend”.  The word “commercial purposes” would, therefore, cover an undertaking the object of which is to make a profit out of the undertakings. (Municipal Board, Unnao Vs. The State of U.P. 1957 All. L.J. 479 at 498)”.
     “According to Oxford dictionary, it means “Viewed as a matter of profit or loss”.
     “The word “commercial” is defined in the Concise Oxford  Dictionary, New Edition of the 1990, at page 227, the word “commercial” is defined as ‘having profit as a primary aim rather than artistic etc. value’ (Vide Dena Bank, Ahmednagar Vs. Prakash Birbhan Katariya, AIR 1994 Bom 343 at 345)”.
 
It was further held in Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583,  by the Hon’ble Apex Court, as under:-
“The National Commission appears to have been taking a consistent view that where a person purchases 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 (d) (i) of the Act.  Broadly affirming the said view and more particularly, with a view to obviate any confusion – the expression “large scale”  is not a very  precise expression – Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose” – a case of exception to an exception.  Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a ‘consumer’ but a person who buys a typewriter or a car for typing others’ work, for consideration or for plying the car as a ‘taxi’, can be said to be using the typewriter/car for a commercial purpose.  The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of ‘self-employment’, such purchaser of goods is yet a ‘consumer’. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer.  In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act.  The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of  each case.  It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz, “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say.  A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer.  Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer.  A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer.  (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer).  As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer”.
 
7.        In Bihar School Examination Board Vs. Suresh Prasad Sinha, IV (2009) CPJ 34 at 36(SC) : AIR 2010 SC 93 : (2009) 8 SCC 483 the Apex Court has held,  as under :-
“Consumer – Definition of :- According to the definition of ‘consumer’ in Section 2(d) of the Act, a person who hires or avails of any services for a consideration, is a consumer.  The following category of service-availors will not be consumers : (i) persons who avail any service for any commercial purpose; (ii)  persons who avail any free service; (iii) persons who avail any service under any contract of service.  A consumer is entitled to file a complaint under the Act if there is any deficiency in service provided or rendered by the service provider”.
 
8.   This Commission in Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. – IV (2010) CPJ 299 (NC) has held that:-
 
“Housing – Purchase of space for commercial purpose – There was delay in possession.  Complainant was a private limited company.  Complainant was nominated for allotment of showroom.  Possession not given.  Sale deed was not executed.  Deficiency in service was alleged.  Even if private limited company was treated as ‘person’ purchase of space could not be for earning its livelihood.  Purchase of space was for commercial purpose”.
 
9.    Also, see Rajasthan State Industrial Development & Investment Corporation Vs. Diksha Enterprises, III (2010) CPJ 333 (NC)  and this Commission’s  judgment  in Revision Petition No.  1129 OF 2012, Shri Harnam Singh Vs. Shalimar Estate Pvt. Ltd. & Ors., decided on 29th May, 2012.
 
10.    Thus, the complainant, in the present case,  is not a “consumer” and as such,  the complaint is not maintainable.  The complaint  is, therefore, dismissed.  However,  the complainant is given liberty to pursue the matter before any other forum or civil court, except the consumer court.  No order  as to costs.
 
..…………………..………
     (J.M. MALIK,J.)
      PRESIDING MEMBER
 
                                                             
  ……………….……………
                                                        (VINAY KUMAR)
                                                                            MEMBER
 
Md/15
 
 


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