State Consumer Disputes Redressal Commission
Rajiv Aggarwal vs Managing Director, Punjab Information ... on 14 May, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 103 of 2015 Date of Institution : 13.05.2015 Date of Decision : 14.05.2015 Rajiv Aggarwal, Proprietor Microwave Professional, SCO No.373, 2nd Floor, Sector 37-D, Chandigarh. ......Appellant/Complainant V e r s u s Managing Director, Punjab Information and Communication Technology Corporation Limited, 5th and 6th Floor, Udyog Bhawan 18, Himalaya Marg, Sector 17, Chandigarh, (Punjab Infotech). ....Respondent/ Opposite Party Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. G.S. Sawhney, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 10.04.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it dismissed the complaint, filed by the complainant (now appellant), on the ground that he did not fall within the definition of a consumer, and, as such, the same (complaint) was not maintainable..
The facts, in brief, are that, in response to an advertisement of the Opposite Party, for "Allotment of Prime Plots at Mohali, Under General Scheme", for setting up of IT/ITes/Electronics/Knowledge Industry, the complainant applied for an industrial plot, in Phase-VIII, measuring 1000 sq. yards, by submitting an application form dated 26.05.2011, Annexure C-2. Alongwith the said application form, cheque no.603563 dated 26.05.2011, in the sum of Rs.10.00 lacs, as earnest money, towards the said industrial plot, was also deposited by the complainant, with the Opposite Party. It was stated that vide letter dated 06.12.2011 (Annexure C-3), the Senior Executive Director (Technical) of the Opposite Party, informed the complainant that meeting of the Sub-Committee for screening of the eligible applicants, in respect of the said unit, was scheduled on 21.12.2011. The complainant was requested to attend the said meeting. It was further stated that, thereafter, the complainant waited for a long time, for the result of screening, in respect of the said industrial plot, but no information with regard to the same was given by the Opposite Party. However, on 10.06.2013, vide letter Annexure C-4, Head of the Department of the Opposite Party, informed the complainant that it (Opposite Party) had decided to withdraw the said scheme of allotment of industrial plots. Alongwith the said letter Annexure C-4, the Opposite Party sent cheque No.272941 dated 10.06.2013, in the sum of Rs.10.00 lacs, in the name of the complainant. It was further stated that the said amount was refunded, without any interest, by the Opposite Party.
It was further stated that the complainant vide letter dated 19.06.2013, Annexure C-5, requested the Opposite Party, to make payment of interest, on the amount of Rs.10.00 lacs, for the period, the same remained with it, but it refused to pay the same, vide letter dated 08.10.2013, Annexure C-7. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to pay interest @12% P.A., on the amount of Rs.10 lacs, for the period, it remained with it; and compensation, to the tune of Rs.5 lacs, for mental agony and physical harassment.
The Opposite Party, in its written version pleaded that the complainant did not fall within the definition of a consumer, as defined under Section 2(1)(d) of the Act, and, as such, the consumer complaint was not maintainable. The issuance of advertisement for the allotment of industrial plots, at Mohali, was admitted by the Opposite Party. It was also admitted that the complainant had applied for the allotment of an industrial plot and deposited an amount of Rs.10.00 lacs, as earnest money, with the Opposite Party. It was stated that the Competent Authority, in the Department of Industries, on 25.07.2012, decided to put on hold, the proposed draw of lots, tentatively fixed for 03.08.2012. Ultimately, the Competent Authority approved to initiate the fresh process for calling applications for the allotment of industrial plots at ELTOP, Phases 8 and 9, Mohali. It was further stated that the complainant was not found to be eligible, and, as such, the earnest money of Rs.10.00 lacs, deposited by him, was returned. It was further stated that the complainant had paid the earnest money, alongwith the application form, fully knowing that no interest was payable to the unsuccessful applicants, on the same (earnest money). It was further stated that, under these circumstances, the demand of the complainant for interest, after accepting the amount of Rs.10 lacs, was not justified. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
In the rejoinder, filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.
The Parties led evidence, in support of their case.
After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
We have heard the Counsel for the appellant/complainant, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
The Counsel for the appellant/complainant, submitted that the complainant fell within the definition of a consumer, as defined under Section 2(1)(d) of the Act, as he applied for the allotment of an Industrial plot, for earning his livelihood, but the District Forum was wrong, in holding to the contrary. He further submitted that since the amount deposited by the complainant, was utilized by the Opposite Party, for a long time, it was required of it, to pay interest thereon, at the time of refund thereof. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant/complainant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. The core question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer or not. For proper decision of the question, as to whether, the complainant fell within the definition of a consumer, the provisions of Section 2(1)(d) and Section 2 (1)(o), defining the 'consumer' and 'service' respectively, are extracted hereunder:-
"(d) "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 then 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]; Added by Act 62 of 2002 w.e.f. 15.03.2003.
[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer 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;] Section 2(1)(o) defines service as under:-
(o) "service" means service of any description which is made available to potential 16[users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."
According to Section 2(1)(d)(i) of the Act, the consumer does not include a person who obtains such goods for resale or for any commercial purpose. Section 2(1)(d)(ii), which was amended by Act 62 of 2002 w.e.f. 15.03.2003, clearly lays down that the person who hires or avails of the services for a consideration, for any commercial purpose, shall not qualify, as a consumer. In the instant case, admittedly the complainant applied for an industrial plot, measuring 1000 square yards, the price whereof was about Rs.1 crore. It is evident, from the application form Annexure C-1, for the purchase of an industrial plot, at pages 18A to 18B of the District Forum file, that the said industrial plot was intended to be purchased by the complainant, for setting up an industry of IT products and IT enabled services. The total estimated cost of the project of the complainant was Rs.439 lacs. It is further evident, from the application form, for industrial plot, at pages 18A to 18B of the District Forum file, that in the industry which was to be set up on the said industrial plot, the complainant wanted to engage 5 personnel of Managerial Staff, 120 technical personnel, and 15 other personnel. It may be stated here, that not even a fleeting reference was made by the complainant, in the complaint, that he wanted to engage himself, in a commercial activity, for earning his livelihood, by way of self-employment, by setting up an industry on the said industrial plot. It means that the complainant wanted to set up a very big industry, in which, he was to employ about 145 persons, for commercial purpose, for earning huge profits. In Economic Transport Organization Vs. Charan Spinning Mills (P) Ltd., & Anr., I (2010) CPJ 4 (SC), a Constitution Bench of the Hon'ble Supreme Court held that if the goods are purchased or the services are availed of, by the complainant, for any commercial purpose, then it does not fall within the definition of a consumer, and consequently, the consumer complaint will not be maintainable, in such cases. In Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd. 2011 (1) SCC 525 and Sanjay D.Ghodawat Vs. R.R.B. Energy Ltd., IV (2010) CPJ 178 (NC), a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, New Delhi, similar principle of law, was laid down. Since, the services of Opposite Party were availed of, by the complainant, to purchase an industrial plot, for setting up an industrial unit, for running a commercial activity, on a large scale, by employing a number of persons, referred to above, to earn huge profits, he did not fall within the definition of a consumer. It is, therefore, held that the services of the Opposite Party were hired, by the complainant, for industrial/commercial purpose, with an intention to earn huge profits, and, as such, he did not fall with the definition of a consumer, as defined under Section 2 (1) (d) of the Act. The District Forum was also right, in holding so. The findings of the District Forum, in this regard, being correct, are affirmed.
No doubt, the Counsel for the appellant/ complainant, placed reliance on Sanjay Kumar Joshi Vs. Municipal Board, Laxmangarh and another, 2015 (2) Law Herald (Supreme Court) 1041, to contend that since, in the instant case, the complainant applied for an industrial/commercial plot, for earning his livelihood, he fell within the definition of a consumer, as held by the Hon'ble Supreme Court of India in the case aforesaid. It may be stated here, that the facts and circumstances of the case, cited in this paragraph, reliance whereupon was placed by the Counsel for the appellant /complainant, were entirely different. In the said case, the complainant took a specific plea that the commercial plot had been purchased by him, for the purpose of earning his livelihood, by way of self-employment, as he was an unemployed person. It was, under these circumstances, held by the Hon'ble Supreme Court of India in Sanjay Kumar Joshi's case (supra) that since the appellant purchased the commercial plot, for his livelihood, by way of self-employment, he fell within the definition of a consumer. Whereas, as stated above, in the consumer complaint, not even a fleeting reference was made by the complainant, that he wanted to engage himself, in a commercial activity, for earning his livelihood, by way of self employment, by setting up an industry in the said industrial plot. Under these circumstances, no help can be drawn, by the Counsel for the appellant/complainant, from the principle of law, laid down, in Sanjay Kumar Joshi's case (supra). On the other hand, the principle of law, laid down, in Economic Transport Organization's, Birla Technologies Ltd.'s and Sanjay D.Ghodawat cases (supra) cited in paragraph No.12 above, is applicable to the facts of the instant case. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
No other point, was urged, by the Counsel for the appellant.
In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
The appellant/complainant shall, however, be at liberty to resort to any other remedy, which may be available to him, for the redressal of his grievance, as per the provision of law.
Certified copies of this order, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
14.05.2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg