Back
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member and Dinesh Singh, Member
Chaitali Bhattacharjee —Petitioner
versus
Somnath Biswal and Ors. —Respondents
Revision Petition No.3029 of 2016
(Against the Order dated 06/09/2016 in Appeal No. 1014/2013 of the State Commission West Bengal)
Decided on 22.10.2018
For the Petitioner:Mr. Faisal Naseem and Mr. Jitender, Advocates
For the Respondent No.1:Mr. Debajyoti Basu and Mr. Chand Qureshi, Advocates
For the Respondents No.2 to 4: Nemo
IMPORTANT POINT
A person entering agreement to buy a commercial space cannot be a consumer and hence, complaint is not maintainable under the Act.
Headnote:Consumer Protection Act, 1986 – Revision – Section – 21 - The deceased husband of the revisionist –complainant was a monthly tenant and carrying out business under the name and style of ‘Durga Diagnostic Centre’ in the land and premises of the respondents no.2 to 4 – opposite parties no. 2 to 4 – subsequently, the O.Ps 2-4 entered into a development agreement with O.P 1 to construct a multistoried building – The deceased husband of the complainant entered into an agreement with the O.P 1 and O.P 2 – 4, prior demolition of the building for purchase a commercial space of 400sft and paid an advance of Rs.1,00,000/- As the agreed space was not handed over to the complainant after the death of her husband, complaint was filed – Complaint was allowed and an appeal was preferred against its orders – State Commission allowed the appeal and dismissed the complaint on the ground that the complainant is not a consumer and the matter cannot be decided in consumer forum – Aggrieved with this, the present revision is filed – Heard the counsels, perused the documents and the record – It is therefore held that the State Commission has passed a well reasoned order and this forum cannot interfere with the orders and the complainant is free to agitate her case in any appropriate forum / court as per the law.
Result: Revision is dismissed.
We heard the learned counsels for the revisionist – complainant and the respondent no. 1 – opposite party no. 1, and perused the material on record.
2. Brief facts, shorn of unnecessary detail, are that the deceased husband of the revisionist –complainant was a monthly tenant and carrying out business under the name and style of ‘Durga Diagnostic Centre’ in the land and premises of the respondents no.2 to 4 – opposite parties no. 2 to 4.
The respondents no. 2 to 4 – opposite parties no. 2 to 4, the owners of the land, entered into an agreement with and empowered respondent no. 1 – opposite party no.1, a promoter-cum-developer, to construct a multi –storeyed building on their land.
Prior to vacating and demolishing of the portion occupied by the complainant’s husband in the land and premises, an agreement was executed by the complainant’s husband (since deceased) with the respondent no. 1 – opposite party no. 1 and with the respondents no. 2 to 4 – opposite parties no. 2 to 4 to allot a commercial space of 400 sq. ft. in the basement of the newly–constructed building. He paid a sum of Rs.1,00,000/- through cheque.
The contention of the complainant was that the agreed portion of the newly–constructed building was not handed over in terms of the agreement.
The contention of the opposite party no.1 – promoter–cum–developer was that the husband of the complainant, being a monthly tenant in the premises, entered into an agreement for purchasing commercial space of 400 sq. ft. in the basement of the newly–constructed building. As per the agreement he received a sum of Rs. 1,00,000/-. However, due to non-payment of balance stipulated installments, the agreement became infructuous and was cancelled.
3. The District Forum vide its Order dated 05.04.2013 allowed the complaint on contest against opposite party no. 1 and ex-parte against opposite parties no. 2 to 4:
5. The O.P. No.1 is directed to put the complainant in possession of 400 sq. ft.(commercial) situated in ground floor of the apartment named “Sree Jagannath Tower” (Burnpur road side facing). If the said space is not available then allot another suitable space measuring 400 sq. ft. at a prominent place in that complex and in that event O.P. No.1 have to pay a sum of Rs.10,00,000/- to the complainant towards the difference of possession in the burnpur road facing place and other side facing place in that complex within 45 days from the date of this order, failing which interest would fetch Rs.5,000/- per month till realization. The O.P. No.1 is further directed to execute a registered deed of sale of the above space in favour of the complainant and in that event complainant have to bear the cost of the stamp duties and registration charges as applicable. The O.P. No.1 is directed to hand over the possession of the agreed and allotted commercial space in terms of the development agreement within 45 days, in default we have already stated the alternative method as above, failing which the complainant is at liberty to execute the same through this Forum. Apart from that O.P. No.1 is directed to pay Rs.50,000/- as compensation of Rs.50,000/- as compensation towards mental pain and agony of the complainant who is none but a weaker section of our society.
4. The opposite party no. 1 appealed in the State Commission. The State Commission vide its Order dated 06.09.2016 allowed the appeal, holding that the complainant was not a ‘consumer’ within the meaning of section (2) (1) (d) of the Act 1986:
On a plain reading, it would reveal that Section 2(1) (d) of the Act provides that the Consumer is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of any services for any commercial purposes. However, in order to avail shelter of explanation to Section 2 (1) (d) (ii) of the A
