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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
K.S. Chaudhari, Presiding Member
Pardeep Singh Pahal & Anr. —Appellants
versus
M/s. TDI Infrastructure Pvt. Ltd. & Anr. —Respondents
First Appeal Nos.1423 & 1138 of 2014
Decided on 21.9.2015
Counsel for the Parties:
For the TDI Infrastructure:Ms. Kanika Agnihotri, Advocate with Mr. Harshavardhan Singh Rathore, Advocate
For the Pardeep Singh Pahal:Mr. Syed Hasan Isfahani, Advocate
IMPORTANT POINT
When complaint to be dismissed, appeal filed by complaint liable to be dismissed as infructuous.
Headnote:(i) Consumer Protection Act, 1986 — Section 2 (d) — Consumer — Purchase of commercial unit — Super built area by complainant in OP’s commercial project for commercial purpose — Complainant does not fall within purview of consumer under S. 2 (d) of CP Act.
Held: In the light of aforesaid judgments, it becomes clear that purchase of commercial unit measuring 800 sq. ft. super built area by complainant in OP’s commercial project is for commercial purpose and complainant does not fall within purview of consumer under Section 2 (d) of the C.P. Act. Learned State Commission has wrongly observed that distinction between the ‘commercial purpose’ and ‘non-commercial purpose’ is so obscure and thin that it becomes very difficult to reach on a definite conclusion and expression ‘commercial purpose’ must be given precise and restrictive meaning in favour of the consumer. Learned State Commission committed error in treating complainant as consumer and allowing complaint and in such circumstances, appeal filed by OP is to be allowed and impugned order allowing complaint is liable to set aside. When complaint is to be dismissed, appeal filed by complaint is liable to be dismissed as having become infructuous. [Para 13]
(ii) Consumer Protection Act, 1986 — Section 2 (d) — Commercial vis a vis non-commercial — State Commission wrongly observed that distinction between — So obscure and thin that it becomes very difficult to reach on definite conclusion — Expression ‘commercial purpose’ must be given precise and restrictive meaning in favour of consumer. [Para 13]
Result: Appeal by OP allowed
K.S. Chaudhari, Presiding Member—Both these appeals arise out of one order of State Commission; hence, decided by common order.
2. Appeal No. 1138 of 2014 has been filed by the complainant and Appeal No. 1423 of 2014 has been filed by OP against the order dated 11.09.2014 passed by the learned State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in Consumer Complaint No. 89/2011 – Pardeep Singh Pahal Vs. M/s. TDI Infrastructure Pvt. Ltd. by which, complaint was allowed.
3. Brief facts of the case are that complainant applied for allotment of a shop in ‘Radeo Drive Complex’ in TDI City at Kundali, a project developed by OP and paid Rs.8,50,000/- as registration amount. OP allotted shop No. 205 having covered area of 536 sq. fts. and super built up area 800 sq. ft. vide letter dated 31.08.2006. As per demand of OP, complainant deposited total Rs.35,20,000/- towards this shop against total cost of Rs.44,00,000/-. This amount was deposited with a dream to have his own business, but OP has not handed over possession of unit till date even after 24 months from sanction of building plans. It was further submitted that on 6.3.2011, complainant found no construction activity at the complex and in such circumstances, by letter dated 12.3.2011 requested OP to refund amount with interest, but OP did not bother to reply. Alleging deficiency on the part of OP, complainant filed complaint before State commission. OP resisted complaint and admitted allotment of shop and receipt of money. It was further pleaded that Hon’ble High Court stayed operation and effect of licences and put the entire development work process on the standstill. After vacating stay order, construction work was reinstated. It was further submitted that complainant was not consumer as the allotment of shop was obtained with motive of earning profit, but unfortunately due to global economic meltdown, prices declined and prayed for dismissal of complaint. Complainant filed replica and submitted that complainant agreed to purchase commercial unit for the purpose of earning his livelihood by means of self-employment. Learned State Commission after hearing both the parties, allowed complaint and directed OP to refund Rs.35,20,000/- with 9% p.a. interest and further directed to pay compensation of Rs.50,000/- and cost of litigation Rs.10,000/- against which both parties filed appeals.
4. Heard learned Counsel for the parties finally at admission stage and perused record.
5. OP has filed application for condonation of delay in FA No. 1423 of 2014. Appellant submitted that Counsel for the appellant was to appear in number of cases pending before District Forum/State Commission filed against appellant in Lok Adalat for a number of day; so, appeal could not be drafted and filed in time, so, delay of 53 days may be condoned. No doubt, appeal should have been filed within the permissible time, but as Counsel for the appellant was busy in attending Lok Adalat for number of days, I deem it appropriate to condone delay of 53 days in filing appeal subject to cost in the light of latest judgment of Hon’ble Apex Court in (1) Civil Appeal Nos. 10120-10121 of 2014 – Jeevanti Devi Vs. Commercial Motors & Anr.; (2) Civil Appeal No. (s) 10289 of 2014 – A.T.S. Govindarajane Vs. Chief Manager, State Bank of India; (3) Civil Appeal No. 5071 of 2014 – Taipen Traders Ltd. & Anr. Vs. M/s. Bhawani Cold Storage & Ors. by which delay of 135 days, 149 days and 218 days, respectively in filing revision petition was condoned. In view of this, the delay stands condoned subject to payment of cost of Rs.5,000/- to complainant.
6. Learned Counsel for OP submitted that complainant neither pleaded, nor proved to be a consumer within Consumer Protection Act; even then, learned State Commission committed error in allowing complaint; hence, appeal be allowed and impugned order be set aside. On the other hand, learned Counsel for the complainant submitted that learned State Commissi
