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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
M/s. Gannon Dunkerley & Co. Ltd. —Complainant
versus
M/s. Unitech Limited and Anr. —Opp. Parties
Consumer Case Nos.760 to 769 of 2016
Decided on 1.11.2017
For the Complainant:Mr. A.K. Seth, Advocate
For the Opp. Parties:Mr. Somesh Tiwari and Mr. Prabhat Kumar Rai, Advocates
IMPORTANT POINT
No commercial purpose of company is achieved by purchasing such goods or hiring or availing such services and then making them available to its directors and employees.
Headnote:Consumer Protection Act, 1986—Section 2(1)(d)—Real estate—Booking of residential flat—Denial of possession despite payment—Since such goods were purchased or services were hired or availed by company and made available to its directors and employees for purposes wholly unrelated to business activities of company, such an acquisition cannot be said to be for a commercial purpose—No commercial purpose of company is achieved by purchasing such goods or hiring or availing such services and then making them available to its directors and employees—In order to avoid any further litigation in the matter, complainant is restricting its claim to refund of principal amount paid by it along with compensation in form of 10% simple interest—Opposite party shall refund entire principal amount received from complainant along with compensation in form of 10% simple interest and Rs. 25,000/- as cost of litigation in each complaint. (Paras 7, 8 and 9)
Result: Complaint allowed.
V.K. Jain, Presiding Member—The complainant is a Public Limited Company, registered under the provisions of the Companies Act, 1956. The complaints have been instituted through its Vice President who has been empowered to sign, verify and institute the complaint vide Board Resolution dated 29.2.2016. The complainant booked residential flats with the opposite party in a project namely ‘Unitech Harmony” which the opposite party is developing at Nirvana Country, Gurgaon. The flats according to the complainant were booked for the residential purpose of its officials. The sale consideration for each flat was agreed at more than Rupees one crore and allotment letters with respect to the different units were issued accordingly. The complainant claims to have paid the major part of the agreed sale consideration and the balance sale consideration, according to the complainant was payable at the time of final notice of possession.The possession was agreed to be delivered by 31.12.2009, subject of course to force-majeure circumstances. The grievance of the complainant is that despite several letters written by it to the opposite party, the possession of the aforesaid residential units has not been delivered to it. The complainant is therefore before this Commission seeking possession of the aforesaid residential units, along with compound interest @ 24% per annum in additional to the contractual compensation of Rs.5/- per sq. ft. per month and a flat compensation for the harassment and injury.
2. The complaints have been resisted by the opposite party which has taken a preliminary objection that the bookings were made for a commercial purpose, and therefore the complainant is not a consumer within the meaning of Consumer Protection Act. On merits, the allotment made to the complainant as well as the payments received from it have been admitted. It is alleged that the possession was delayed on account of reasons beyond the control of the opposite party.
3. The opposite party has also filed applications, seeking dismissal of the complaint on the ground that the complainant is not a consumer within the meaning of Consumer Protection Act, it having booked the residential flats for a commercial purpose.
4. The first question which arises for consideration in these complaints is as to whether the complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act or not. The aforesaid issue came up for consideration of a Three-Members Bench of this Commission in Consumer Complaint No. CC/51/2006 CG Power & Industrial Solutions Ltd. Vs. Mercedes-Benz India Pvt. Ltd., decided on 08.7.2016, and the following view was taken:
“3. Section 2(1)(d) of the Consumer Protection Act which defines the term ‘consumer’, to the extent it is relevant, reads as under:—
“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 person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of 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 or avails of the services for consideration paid or promised, 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 but does not include a person who avails of such services for any commercial purposes;
It would thus be seen that the emphasis is on the purpose for which the goods are obtained, though the use t
