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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
Mr. Ajit Bharihoke, Presiding Member and Mr. Anup K. Thakur, Member
KUNDAN BALKRUSHNA DESHMUKH - Appellant
Versus
EMPIRE MALL PVT. LTD. - Respondent
Consumer Complaint No. 2038 of 2016
Decided on : 02-03-2017
Mr. Sudhanshu S. Chaudhari, Advocate, for the Complainant; None, for the Opposite Party
The main legal point established in the judgment is that a person who books commercial premises for business purposes may not be considered a 'consumer' under the Consumer Protection Act.
Headnote:
Consumer Protection Act - Commercial Premises - The court analyzed the definition of 'consumer' under Section 2(1)(d) of the Consumer Protection Act, 1986 and concluded that the complainant, who had booked commercial premises for business purposes, did not fall within the definition of 'consumer' and therefore did not have locus standi before the Commission.
Fact of the Case:
The complainant booked commercial premises for business purposes and filed a complaint when the possession was not delivered as per the agreement.
Finding of the Court:
The court found that the complainant, who had booked the premises for commercial purposes, did not fall within the definition of 'consumer' under the Consumer Protection Act, and therefore rejected the complaint.
Issues: The main issue was whether the complainant, who had booked commercial premises for business purposes, could be considered a 'consumer' under the Consumer Protection Act.
Ratio Decidendi: The court analyzed the definition of 'consumer' under Section 2(1)(d) of the Consumer Protection Act and concluded that the complainant, who had booked the premises for commercial purposes, did not fall within the definition of 'consumer'.
Final Decision: The complaint was rejected on the grounds that the complainant, not being a consumer, did not have locus standi before the Commission.
ORDER
1. The complainant booked five office premises being premises No. B-3-A, B-4/5, D6, D7 and D8 ad-measuring Carpet Area 5,523 sq. ft. in the development project "Prozone Trade Centre" undertaken by the OP. The Builder Buyer Agreement was entered into on 18.4.2012. According to the complainant, he has paid a sum of Rs. 72,49,140 against the agreed consideration amount. The OP has per the agreement had agreed to deliver the possession of the subject commercial premises latest by 18.12.2015 inclusive of grace period of one year. Hence, the consumer complaint.
2. Undisputedly the subject premises booked by the complainant are commercial premises located in a commercial project undertaken by the OP. We have therefore heard arguments on the maintainability of the complaint.
3. Section 2(1)(d) of the Consumer Protection Act, 1986 to the extent it is relevant, provides that consumer does not include a person who obtains goods or hires services for any commercial purpose.
4. The Explanation to Section 2(1)(d), however, gives a restricted meaning to the term "Commercial Purpose". The Explanation is reproduced as under:
"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 for the purpose of definition of 'consumer', the Explanation excludes from the ambit term 'commercial purpose', use of the goods bought or used by the complainant or the services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.
5. In the context of the services of housing construction, the explanation would come into play only if the following conditions are fulfilled:
(i) The complainant buys the property exclusively for the purpose of earning his livelihood and (ii) He employs himself i.e. he is personally engaged in the activity which is carried out in the premises for earning livelihood.
6. Unless, the above said requirements stand fulfilled, the explanation would not come into play and the complainant who has hired or availed services for any commercial purposes cannot be said to be a 'consumer' as defined under Section 2(1)(d).
7. In the light of the above discussion position in law, we now analyse the allegation in the complaint to find out whether the complainant can be terms as 'consumer' as defined under Section 2(1)(d).
8. In para 1 of the complaint, the complainant has given the reason for booking the subject five commercial properties as that he was desirous of having an office for his business purposes so as to earn his livelihood. From the said allegation, it is clear that the complainant at the time of booking of the subject premises was running a business. No doubt in ground (a) deal in para 14 of the complaint, the complainant has alleged that he purchased the subject properties exclusively for the purposes of earning his livelihood but by self-employment i.e. engaging into his business but the fact remains that admittedly the complainant had booked five commercial spaces ad-measuring the carpet area 5,523 sq. ft. It is obvious that such a big carpet area would not be required by the complainant if he was to run the office of his own. Obviously, the complainant wanted to set up the big office by employing the staff to assist him in running his business. Therefore, it cannot be said that the above noted five premises were booked by the complainant exclusively for earning his livelihood by way of self-employment.
9. In view of the above discussion, it is clear that the case of the complainant does not fall within four comers of the explanation under Section 2(1)(d) of the Consumer Protection Act, 1986. The complainant is therefore not a consumer as he has booked the subject premises for commercial purposes.
10. Since the complainant is not a consumer, he does not have a
