IMPORTANT POINT
Commercial users cannot maintain consumer complaint.

J.M. Malik, Presiding Member—The key question is, whether, the complainant is a ‘consumer’ and falls under Section 2 (1) (d) (ii) and the Explanation appended to it?.

2. The present complaint has been filed by a company, known as Shailaja Finance Ltd., Kolkata. The Opposite Parties, GTM Builders & Promoters Pvt. Ltd. and M/s. Sargam Estates Pvt. Ltd., OPs 2 & 3, respectively, are the joint owners/developers of the land measuring 58 bighas, situated at Village Mokhampur Khurd, Paragana Parwa Doon, Dehradun, Uttaranchal. The complainant company purchased nine apartments in ‘GTM Forests & Hills’, from the OPs. The said flats were purchased by the complainant company to use them for residential purposes only, for its Directors and Staff members, and for the Directors of M/s. Radico Khaitan Limited. It is explained that the complainant is the promoter of M/s. Radico Khaitan Limited which has its office in Dehradoon. The OPs did not handover the flats to the complainant. Consequently, the present complaint has been filed with the following prayers :-

“(i) Direct the Opposite Parties to hand over the possession of the 9 flats in Towers bearing Nos. FH-08 (Flat No. 201), FH-15 (Flat No.201), FH-17 (Flat Nos. 102, 201, 202, 203), FH-18 (Flat Nos. 102, 201, 202) immediately, in a completely ready and finished state;

(ii) Direct the Opposite Parties not to create any third party rights and/or interests with respect to the aforementioned 9 flats;

(iii) Direct the Opposite Parties to recall their illegal demand letters dated 18.07.2012, 21.09.2012, 08.11.2012, 31.12.2012 and declare them null and void;

(iv) Direct the Opposite Parties to pay an interest at the rate of 18% per annum, compounded monthly, to the complainant pendent lite on the total amount of Rs.2,34,71,323/- paid to the opposite parties for the entire period of delay till the handing over of the flats;

(v) Direct the Opposite Parties to pay an amount of Rs.18,00,000/- (Rupees Eighteen Lakhs only) to the complainant as damages due to delay in handing over possession of the flats;

(vi) Direct the Opposite Parties to pay to the complainant the costs of the present proceedings; and

(vii) Pass such other order or further orders as this Hon’ble Commission deems fit and proper in the facts and circumstances of the case”.

3. We have heard the learned counsel for the complainant at the stage of admission of this case. The counsel for the complainant has invited our attention towards the Board Resolution dated 13.03.2008, which runs as follows:-

“Resolved further that the flats shall be utilized for residential purposes of the Directors/ Employee of the Company or its Group Companies and such other purposes and deemed suitable by the Board”.

4. We have also gone through the Agreement dated 15.05.2008, which does not mention which flat was taken and for whom. The names of the Directors are conspicuously missing.

5. The learned counsel for the complainant has cited an authority reported in Karnataka Power Transmission Corporation v. Ashok Iron Works Pvt. Ltd., 2009(1) CPR 11 (SC): 2009 (3) SCC 240. We are of the considered view that that authority is not applicable to this case. In that case, the cause of action had arisen on 01.02.1991 as is apparent from para 2 of the judgment.

6. The Amendment Act 1993 and 2002/03 were not brought into force till then. We are to decide this case in accordance with the law which prevails here as under. The word ‘consumer is defined in Section 2 (1) (d) (i) and (ii), as follows :-

d) ‘Consumer’ means any person, who :-

(i) 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 than 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 pers