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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
Mr. Ajit Bharihoke, P.M and Mrs. Rekha Gupta, Member
RAJNISH KUMAR - Appellant
Versus
MAXWORTH REALTY INDIA LTD AND ANOTHER - Respondents
Consumer Case No. 126 of 2015.
Decided on : 13-07-2015
Mr. Kripa Shankar Prasad and Mr. Rajat Bharadwaj, Advocates, for the Appellant; None For the Respondent, for the Respondent
A person who avails of services for commercial purposes is excluded from the definition of 'consumer' under the Consumer Protection Act.
Headnote:
Consumer Protection Act - Consumer - The court dismissed the consumer complaint on the grounds that the complainant, who had entered into agreements for the purchase of plots for commercial purposes, did not qualify as a 'consumer' under the Consumer Protection Act.
Fact of the Case:
The complainant entered into multiple agreements for the purchase of plots for commercial purposes. The opposite party failed to execute the sale deeds within the stipulated time, leading to the complaint of deficiency in service.
Finding of the Court:
The court found that the complainant, who had availed services for commercial purposes, did not qualify as a 'consumer' under the Consumer Protection Act and therefore dismissed the complaint as not maintainable.
Issues: The main issue was whether the complainant qualified as a 'consumer' under the Consumer Protection Act, considering the commercial nature of the agreements.
Ratio Decidendi: The court relied on the definition of 'consumer' under Section 2(1)(d)(ii) of the Consumer Protection Act, which excludes a person who avails of services for any commercial purpose from the definition of consumer.
Final Decision: The consumer complaint was dismissed as not maintainable, but the complainant was given the liberty to avail of his remedy by moving an appropriate forum.
ORDER
Mr. Ajit Bharihoke, (P.M) - The complainant entered into an assignment agreement with the opposite party on 18.01.2010 for purchase of the plots situated at site no. 60,91, 92, 138 and 139 near Devanahalli village, Bangalore. The consideration amount of Rs. 27.00 lacs was admittedly paid to the opposite party.
2. That on 26.05.2010, the complainant entered into a three Memorandum of Understanding with the opposite party in respect of development project undertaken by the opposite party. As per the agreements, the opposite party had agreed to register sites no. 19, 37 and 55; sites no. 17, 18 and 19 and sites no. 19, 36 and 37 situated at Devanhalli, Bangalore Rural District in favour of complainant. The consideration amounts pertaining to said MOUs were paid to the opposite party.
3. That on 22.06.2010, the parties enter into another MOU whereby it was agreed that opposite party would register site no. 14, 15, 16, 20 & 21 in favour of the complainant and received consideration amount of Rs. 24.00 lacs.
4. That on 2711.2010, another assignment agreement was entered into between the parties wherein it was agreed that opposite party would sell the property at sites mentioned in the said agreement. The consideration amount of Rs. 56,00,000/- pursuant to the said agreement was also paid.
5. It is the case of the complainant that opposite party has committed deficiency in service pertaining to said agreements by failing to execute the Sale Deeds of the aforesaid sites despite of expiry of stipulated time. It is alleged that when the opposite party failed to deliver, another agreement dated 02.11.2012 was executed wherein it was agreed that opposite party would pay a sum of Rs. 1,43,46,219/- on 03.12.2012 and sum of Rs. 1,19,55,184/- would be paid on 03.01.2013. Certain cheques were also issued by the opposite party which on presentation bounced.
6. We have heard learned counsel for the complainant on the maintainability of complaint. Learned counsel for the complainant has submitted that perusal of the record would show that complainant had availed services of the opposite party for consideration, therefore, in view of section 2 (1) (d) of Consumer Protection Act, the complainant is a 'consumer' and is entitled to maintain the consumer complaint pertaining to deficiency in service on the part of the opposite party.
7. Section 2 (1) (d) (ii) defines the term consumer viz-a-viz a contract of service, which reads as under:
"2. (1) (d) "Consumer" means any person who,-
(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 purpose] ;
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."
On reading of the above, it is clear that a person who hires services of other for commercial purpose is excluded from the definition of consumer. Admittedly, in this case, the complainant had booked number of sites, which obviously cannot be termed as purchase for personal residence. One can safely infer from the facts narrated in the complaint that the subject agreements between the parties were for commercial purpose. Thus, the complainant is not a consumer and cannot maintain the consumer complaint. In our aforesaid view, we find support from the judgments of this Commission in the matter of Chilkuri Adarsh v. Ess Ess Vee Constructions (2012) 3 CPJ 315, Jagmohan Chabra and Anr.
