IMPORTANT POINTS
(1) ‘Close and direct nexus’ – The construction work of the showroom building had no ‘close and direct nexus’ with the profit-generating activity per se of retail of jewellery. There is a distinctive difference between the two, construction work of a showroom building is materially and substantively distinct and different from the activity of retail of jewellery per se.
(2) Consumer - Once a forum takes a view that the complainant is not ‘consumer’, its examination on merits could also get affected,consciously or unconsciously, to the prejudice of the complainant. Such prejudice, if there, also extinguishes his recourse to the competent civil court for a free unbiased appreciation of his cause on merits.

ORDER

This appeal has been filed under section 19 of the Act 1986 in challenge to the Order dated 03.10.2018 of the State Commission in complaint no.07 of 2013.

We have heard the learned counsel for the appellant as well as for the respondents no.1 to no.3 and the respondent no.6. No one appears for the respondents no.4 and no.5.

We have also perused the material on record including inter alia the State Commission’s impugned Order dated 03.10.2018 and the memorandum of appeal.

2. The appeal has been filed with self-admitted delay of 60 days.

However, in the interest of justice, and considering the reasons mentioned in the application for condonation of delay, to provide fair opportunity to the appellant, to decide the matter on merit rather than to dismiss it on the threshold of limitation, the delay in filing the appeal is condoned.

3. The matter relates to alleged deficiency in service in construction work of a jewellery showroom building. The State Commission has dismissed the complaint holding that the complainant was not ‘consumer’ under the Act 1986 and further that on merit too no deficiency in service is made out.

4. In so far as the question whether or not the complainant is ‘consumer’ is concerned, we may refer to the Hon’ble Supreme Court’s judgment in the Lilavati Kirtilal Mehta Medical Trust vs. Unique Shanti Developers & Ors. IV (2019) CPJ 65 (SC) case wherein the Hon’ble Court has inter alia held as under:—

7. To summarize from the above discussion, though a straight-jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial purpose’:

(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose’ is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.

(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity.

(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.

(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self-employment’ need not be looked into. (emphasis supplied)

5. In the present case, the State Commission has held that there was close nexus between the transaction relating to construction work of the showroom building and the commercial activity of retail of jewellery and therefore the complainant was not ‘consumer’ under the Act 1986. The gist of its findings in this regard is reproduced below for reference:—

20. Thus we find that the main purpose of the complainant was to build the luxurious show room to provide all amenities to suit unique and specific requirement of jewellery retail business and therefore it wanted to use the best quality of exterior and interior products in the said show room. We therefore hold that the transaction about purchase of tiles and adhesive and hiring of services of O.P. No. 6 had a closed nexus with the large scale commercial activity of running of the show room by the complainant. Hence we find no substance in the submission of the learned advocate of the complainant that there is no nexus.

We therefore hold that as there is a close nexus in between the aforesaid transaction and hiring of services and commercial activity of the complainant, it can be said that the tile