Mrs. Dundoo Aruna Kumari vs Y. Naga Satish & 3 Ors. on 25 October, 2023

[Cites 17, Cited by 0]

National Consumer Disputes Redressal

Mrs. Dundoo Aruna Kumari vs Y. Naga Satish & 3 Ors. on 25 October, 2023

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 582 OF 2021 (Against the Order dated 05/07/2021 in Complaint No. 16/2021 of the State Commission Telangana) 1. MRS. DUNDOO ARUNA KUMARI W/O LATE D. VIJAYA KUMAR R/O FLAT NO.306 ANAND NILAYAM, 7-1-80, DR. ANNADORAI CHOWDARY STREET AMEERPET HYDERABAD-500016 ...........Appellant(s) Versus 1. Y. NAGA SATISH & 3 ORS. S/O Y.JITENDRUDU,R/OFLAT NO.C-102,FORTUNE ENCLAVE, SRI RAM NAGAR COLONY, BANJARA HILLS,ROAD NO.12, HYDRABAD-500034 2. SMT.Y.RUPAVALLI W/O Y.NAGA SATISH, R/O FLAT NO.C-102, FORTUNE ENCLAVE, SRI RAM NAGAR COLONY, BANJARA HILLS,ROAD MNO.12, HYDERABAD-50034 3. MR.DUNDOO VIKAS S/O LATE D.VIJAYA KUMAR, R/O FLAT NO.306,ANAND NILAYAM,7-1-80,DR.V.ANNADORAL CHOWDARY STREET AMEERPET,HYDERABAD-500016 4. MR.DUNDOO AKHIL S/O LATE D.VIJAYA KUMAR,R/O FLAT NO.306, ANAND NILAYAM, 7-1-80, DR.V.ANNADORAI CHOWDARY STREET AMEERPET, HYDERABAD-500016 ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),MEMBER
FOR THE APPELLANT : FOR THE APPELLANT : MR.BRAJ K. MISHRA, ADVOCATE WITH
MR. ABHISHEK YADAV AND MR. RUCHIT
MENON, ADVOCATES FOR THE RESPONDENT : FOR THE RESPONDENTS
NO.1 AND 2 : MR.KUMAR BHASKAR, ADVOCATE WITH
AUTHORITY LETTER
FOR THE RESPONDENTS
NO.3 AND 4 : MR. SUNIL KUMAR JHA, ADVOCATE
Dated : 25 October 2023 ORDER

AVM J. RAJENDRA, AVSM, VSM (RETD.), MEMBER

1. The present First Appeal has been filed under Section 51 of the Consumer Protection Act, 2019 (hereinafter referred to as "the Act") against the Order dated 05.07.2021 passed by the learned Telangana State Consumer Disputes Redressal Commission, Hyderabad (hereinafter referred as "the State Commission"), in Consumer Complaint No.16 of 2021 filed by the Appellants/ Complainants wherein the State Commission rejected the Complaint.

2. As per report of the Registry, there is a delay of 31 days in filing the present Appeal on 05.07.2021. With due regard to the orders of Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2020 in re: Cognizance for Extension of Limitation the present Appeal is filed within limitation.

3. Brief facts of the case as per the Complainant are that, on 12.07.2005 Respondents No.3 & 4 along with their father Late Sri D. Vijaya Kumar executed a Development Agreement (DA) cum General Power of Attorney (GPA) with the Respondents No.1 & 2/Opposite Parties (OP) to develop the property of the Complainants' bearing H. No 3-1-7/1 (part), 3-1-8 and 3-1-9 admeasuring 1250 Sq Yds on Sarojini Devi Road Secunderabad. In pursuance of said the DA Cum GPA dated 12.07.2005 was registered vide Document No.1873/2005 at SRO Secunderabad for construction of a commercial complex. As per the terms and conditions of the said DA cum GPA, both the parties agreed to share the developed property, both commercial and residential in the ratio of 65% to the owners i.e. the Complainants and 35% to the Developers, the Opposite Parties, with equal advantages and disadvantages, including the common areas, that were to be shared commonly. The OPs obtained the sanctioned Plan from the G.H.M.C on 16.10.2007 vide permit No. 125/88. In the meantime, Late Shri Dundoo Vijaya Kumar, (referred as first party of the First Part in the DA Cum GPA dated 12.07.2005), father of Respondents No. 3 & 4 and husband of the Appellant/Complainant No.1, expired on 28.10.2007 leaving behind his legal heirs i.e. Appellant and Respondents No. 3 & 4.

4. Late Shri Dundoo Vijay Kumar executed a Will dated 26.10.2007, bequeathing his 1/3rd share of 65% of total built up area to his wife, i.e. 1st Complainant and the remaining 2/3rd to be shared equally by 2nd & 3rd Respondent. After his death, his wife, the Appellant, was approached by the OPs to execute a fresh DA cum GPA in respect of her 1/3rd share. On continuous requests of OPs, a fresh DA cum GPA was executed by and between the Appellant/ 1st Complainant on 03.03.2008 in favour of OPs and registered the same on similar terms as per the original DA. The 2nd & 3rd Respondent joined the 1st in the DA cum GPA as consenting parties, as per which, the land and construction/built up area and common areas were to be shared in the ratio of 65:35 by the Complainants and OPs. The construction was completed by OPs after inordinate delay, in March 2009. They approached OPs on multiple occasions for occupancy certificate, NOC from Fire Dept, sanction plan, GHMC mutation, electricity and water supply and 38 other permissions. As occupancy certificate is mandatory, the Complainants were under the impression that this was done. The OPs assured all related approvals but continued to delay. During 2014, when confronted OPs for documents, they admitted orally that they could not obtain and that they applied for Building Regularization Scheme and promised to get them upon sanction.

5. Due to the lack of occupancy certificate till date, the Complainants suffered huge financial loss as they could not lodge their share in the property as security for the loan they intended to take. As a result, they had to opt for unsecured loan at a higher rate of interest. In terms of Clause-6 of the said DA cum GPA, if there are deviations in construction, the OP alone is responsible for the consequences and Complainants have no liability. The OP was bound to hand over 65% of the site to the Complainants along with all relevant documents and permissions. However, apparently due to the deviations indulged into by the OP these permissions were not granted. Being aggrieved, they issued a Legal Notice on 12.08.2020. The OPs issued a vague reply on 24.08.2020 and failed to respond to the Rejoinder. The OPs are taking undue advantage of the Appellant being a widow with young children. Without obtaining Occupancy Certificate from GHMC for the constructed building, the OPs are subjecting the Complainants to undue suffering. The deficiency of service by the OPs has adversely impacted them in terms of finances and mental peace. The OPs failed to adhere to the sanctioned plan of G.H.M.C and failed to obtain Occupancy Certificate and other sanctions till date as agreed upon in the said DA cum GPA. They approached the learned State Commission, Telangana seeking the following:

(a) To direct the Opposite Parties to hand over Occupancy Certificate obtained from the GHMC, NOC from Fire Safety Department, Original sanctioned plan, GHMC mutation and assessment copies and electricity and water connection permissions and other related documents linked to the property which were obtained at the time of sanction of building permission and completion of the construction of the said building.

(b) To appoint a Technical Expert to ascertain all the deviations in the property.

(d) To award the compensation amount of Rs 25,00,000/- for pain, losses, suffering and mental agony and legal expenditure Rs.1,00,000/- for consulting advocate and legal notices and other advises, in total Rs. 26,00,000/-.

(e) To grant such other relief(s) which the Hon'ble Forum may deem it expedient and proper in the interest of justice and under the circumstances of the case.

6. After hearing the Complainant on the maintainability of the complaint, the learned State Commission vide order dated 05.07.2021 passed the following order:

"2. Heard the learned counsel appearing for the Complainant extensively. The objections that are raised by the Commission about the maintainability of the complaint is two-fold. Firstly, that it is in respect of a commercial transaction and secondly it is barred by limitation. At the stage of admission, we are conscious of the fact that we need not advert in detail but suffice it to see the contents in the complaint so as to see as to whether the jurisdiction of the consumer forum established under Consumer Protection Act is attracted or not. In the instant case, we have perused the entire complaint. The case of the Complainant is that, between his ancestor and the Opposite Parties, there was a development agreement as long back as in the year 2005 for construction of a commercial complex. Subsequently, the original executant of the development agreement expired in 2007 and the Complainants being the legal heirs have executed a fresh development agreement with Opposite Parties in 2007. Even in the development agreement, the property that is proposed to be constructed as is noticed from page-3 of the development agreement is that the Opposite Party is to construct a commercial complex thereon after getting the sitting tenants vacated at their cost and it further provides that the owners will be entitled for 65% and the developers will be entitled to 35%. Even in the page-5 of the development agreement which is the basis for the Complainant to launch the prosecution it is clearly mentioned that the spaces falling to their share as per the ratio of 65:35 in the commercial complex to be constructed.

3. It is manifest from the above that the intention of the parties even at the inception, namely when they entered into development agreement was to develop and construct a commercial complex but not residential property. We refer to the Development Agreement-Cum-GPA and highlight clauses:

"The parties hereto have agreed that the parties of second part/Developers shall make an application to the Municipal Corporation of Hyderabad, seeking sanction for construction of a commercial complex in respect of the property covered under this Agreement."

There is no quarrel with the legal proposition that a commercial transaction does not fall within the ambit of the Consumer Protection Act.

4. The other objection is with regard to limitation. Admittedly, the physical possession of 65% share of the Complainants was delivered to them as long back as in the year 2009. The present relief that has been sought for in the complaint are as under:

"To direct the Opposite Parties to handover Occupancy Certificate obtained from the GHMC, NOC from Fire Safety Department, original Sanctioned Plan, GHMC mutation and assessment copies and electricity and water connection permissions and other related documents linked to the property which were obtained at the time of sanction of building permission and completion of the construction of the said building."

5. When the physical possession of the property was delivered and the Complainants or their authorized people had been enjoying the property physically for more than twelve years, they cannot now turn round and file a complaint demanding certain documents and bring it within the limitation of filing of the complaint which is only two years. Nothing has been placed on record to show that there was any continuous cause of action or that they had been demanding for the said documents continuously right from 2009. No person can be allowed to sleep over their rights for well over twelve years and then wake up from the slumber and file a complaint saying that the document such as NOC from the Fire Department, sanction plan etc., be delivered to them. A period of twelve years is sufficiently large for holding that the Complainants would not have thought of raising a demand or filing the complaint at the earliest point of time.

6. In view of the above, on both the grounds, the complaint is not maintainable. Firstly on the ground that is in respect of a commercial transaction and secondly it is hopelessly barred by limitation.

7. Hence, the complaint is rejected. Return the papers and the court fees, if any paid."

7. Being aggrieved, the Appellant has filed the present Appeal with the following prayers:

(a) Allow the appeal and set-aside the judgement and order dated 05-07-2021 passed by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in CC No. 16 of 2021; and/or

(b) Remand the matter back to the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad for adjudication of the matter on merit: and/or

8. In their Appeal the Appellants raised mainly the following grounds:

(a) The State Commission failed to appreciate that Clause 7 of the DA dated 12.07.2005 clearly mentions the property has both commercial and residential accommodation and proceeded as if it was purely commercial complex.

(b) The State Commission failed to appreciate the meaning of the words "but does not include a person who avails of such service for any commercial purpose" as used in Section 2(7)(ii) of the Act. It is no one's case that construction of commercial complexes was the business or profession of the Appellant. By entering into the DA, the Appellant had only invested her asset for earning some alternative asset for her livelihood. It was not a commercial activity by the Appellant. Therefore, it cannot be said that the service of construction by the OPs was taken for a commercial purpose.

(c) The State Commission failed to appreciate that in Bunga Daniel Babu v. Sri Vasudeva Constructions, (2016) 8 SCC 429, the Hon'ble Supreme Court has held that entering into a DA even with the intention of selling of the property would not render the activity to be a commercial activity if the owner is not a partner or a co-adventurer. The only issue to be seen is whether there is an agreement to develop property and give a portion of the same to the owner or whether the owner himself is a co-adventurer. The Hon'ble Supreme Court has clearly stated that the sale of the property by the owner is irrelevant and would not bring the service into the ambit of service taken for commercial purpose. The Hon'ble Supreme Court held as follows:

"20. The obtaining factual matrix has to be tested on the touchstone of the aforestated legal position. The National Commission has affirmed the order passed by the State Commission on the ground that the complainant is not a consumer as his purpose is to sell flats and has already sold four flats. In our considered opinion, the whole approach is erroneous. What is required to be scrutinized is whether there is any joint venture agreement between the appellant and the respondent. The MoU that was entered into between the parties even remotely does not indicate that it is a joint venture, as has been explained in Faqir Chand Gulati [Faqir Chand Gulati v. Uppal Agencies (P) Ltd., (2008) 10 SCC 345].

.......

21. On a studied scrutiny of the aforesaid clauses, it is clear as day that the appellant is neither a partner nor a co-adventurer. He has no say or control over the construction. He does not participate in the business. He is only entitled to, as per the MoU, a certain constructed area. The extent of area, as has been held in Faqir Chand Gulati [Faqir Chand Gulati v. Uppal Agencies (P) Ltd., (2008) 10 SCC 345] does not make a difference. Therefore, the irresistible conclusion is that the appellant is a consumer under the Act.

Therefore, where even sale of flats has not been labelled as commercial purpose, the transaction in the present case cannot be said to be for commercial purpose.

(d) Mere perusal of the DA would show that there was no joint-venture between the Appellant and the OPs nor was the applicant a co-adventurer in the project. Mere fact that the property was a commercial complex would not take it out of the ambit of the Act. The services of the OPs were not hired for any commercial purpose such as running an industry or a shop. If the commercial complex is presumed to be a commercial purpose, applying the same logic, sale of a flat would also be a commercial purpose, which was expressly repelled by the Hon'ble Supreme Court in Bunga Daniel Babu.

(e) The State Commission failed to appreciate that the DA was entered into by the parties only to ensure the livelihood of the Appellant, who is an old lady without any source of income. The income from the developed property is the only source of income and avocation of the Appellant and therefore, in any event, the case would be covered by explanation (a) to Section 2 (7).

(f) The State Commission erred in holding that the complaint was barred by limitation. The DA did not contemplate supply of the occupancy certificate etc. within a fixed period of time. Therefore, it was a continuing obligation on the OPs. Therefore, it was a continuing cause of action. Even otherwise the complaint is not barred by limitation as the need for occupancy certificate and NOC etc arose only when the Appellant noticed illegal construction on the terrace of the property in November 2019, which harmed the interest of the Appellant. As the complaint was filed on 10.04.2021, i.e., within 2 years from the said date, the same is not barred by limitation. Further, denial of loan to Respondent No. 4 by the Bank due to lack of occupancy certificate was on 21.10.2019 and the complaint was filed on 10.04.2021, i.e., within 2 years from the said date and cannot be said to be barred.

(g) The State Commission failed to appreciate that in any case, the question of limitation is a mixed question of law and facts and the complaint ought not to have been dismissed at the outset on the ground of being barred by limitation.

9. In the brief synopsis, Respondents No.3 and 4 have pleaded that originally, they along with their father have entered into a DA dated 12.07.2005 with Respondents No.1 & 2 for construction of a commercial complex. After their father passed away, they again entered into similar DA along with their mother with Respondent No.1 & 2 in order to earn the Appellants livelihood and managing day to day affairs of the Respondent No. 3 & 4. At the time of execution of DA, the Appellant was unemployed with no regular source of income, Respondent No.3 was a student and Respondent No.4 was minor. As there was no regular source of income, the Appellant had entered into a DA cum GPA to ensure well-being of Respondent No. 3 & 4 and for her livelihood. The rest of the issues raised by them are similar to the Appeal. They have also relied on Lilavati Kirtilal Mehta Medical Trust vs. Unique Shanti Developers and others (2020) 2 SCC 265 and Laxmi Engineering Works vs P.S.G. Industrial Institute (1995) 3 SCC 583 that the question of determination as to whether the dispute is commercial or not in nature can only be assessed at the time of production of evidence. As regards limitation the State Commission failed to take note of the principles laid down in Shakti Bhog Food Industries Ltd. v. Central Bank of India (2020) 17 SCC 260 and other judgements holding that the question of limitation is a mixed bundle of facts and law, which can be adjudicate only after the appreciation of evidence.

10. The Respondents No. 1 & 2 have not filed any Reply/objections to the present Appeal and filed written synopsis.

11. The learned counsel for the Appellants reiterated the contentions in the Appeal and argued that the Appellants and OPs have entered into a DA dated 03.03.2008 for construction of a complex and for sharing the developed property in the ratio of 65:35. The Appellant No. 1 is a housewife, and the DA was entered into initially by her husband to ensure her and their children's maintenance and livelihood. The construction was completed by March 2009. However, in November 2019, the OPs carried out certain constructions against the sanctioned plan endangering the title and interest of the Appellant. Therefore, the Appellant insisted on an occupancy certificate and other documents. When the Developer ignored, they filed the complaint in 2021. It was dismissed by the learned State Commission in limini on the ground that the property constructed was a commercial complex; it was not covered under Consumer Protection Law; and the complaint was barred by limitation. He asserted that as the complaint was dismissed in limini and without notice to the OP, the maintainability of the complaint must be decided on demurrer based on principles of the averments in the complaint solely. The DA was not a joint venture. The development of the property was entirely with Developer, and upon development, certain portion was to be allotted to the Appellant. He argued that the question whether a DA would amount to a commercial transaction was considered by Hon'ble Supreme Court in Bunga Daniel Babu v. Sri Vasudeva Constructions, (2016) 8 SCC 429 and It was held that entering into a DA even with the intention of selling of the property would not render the activity commercial, if the owner is not a partner or a co-adventurer. The only issue to be seen is whether there is an agreement to develop property and give a portion of the same to the owner or whether the owner himself is a co-adventurer.

12. The learned Counsel for the Appellant further argued that in the present case too, the DA showed that there was no co-adventure between the Appellant and the Developer. Therefore, the services rendered are not commercial services. In Harsolia Motors Vs. National Insurance Co Ltd (2005) 1 CPR 1, it has been held that not all services obtained in relation to a commercial venture can be called commercial transactions. Clause 7 of the DA dated 12.07.2005 states that:

The owners and the developer hereby agree to share the developed property, both commercial as well as residential in the ratio, namely 65% (sixty five percent) to the owners and 35% (thirty five percent) to the Developer........

13. The learned Counsel stressed that, the least that was required was to issue notice on the complaint of the Appellant and the issues could have been decided on merits, which the learned State Commission omitted and proceeded on the basis that the cause of action arose in 2009 when the building was constructed. At that time the Appellant did not have any grievance and the grievance arose only after the Developer started making unauthorised constructions in the building. Thus, to secure her own interest by asking for requisite documents, she approached the OPs in November 2019. This is undisputed. The DA in any case did not provide handing over of occupancy certificate. Therefore, as non-provision of occupancy certificate is a continuing wrong in Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd. (2022) 4 SCC 103, the complaint is in time. Further, the cause of action arose when Bank denied loan to the son of the Appellant for want of requisite documents. He has also placed reliance for his arguments on Shakti Bhog Food Industries Ltd. v. Central Bank of India (2020) 17 SCC 260.

14. On the other hand, the learned Counsel for the Respondents argued that the Appellant is the wife of Late D. Vijaya Kumar and Respondent No 3 & 4 are the sons of the Appellant. Late D. Vijaya Kumar and Respondent No 3 & 4 were the co-owners of commercial premises in question, in which were three commercial shops were leased to three tenants. The three entered into a DA dated 12.07.2005 with OPs for development of said premises into a commercial complex. The OPs were already one of the three tenants occupying shops in the said premises, which were to be developed into a large commercial complex. The salient features of the DA were:

(a) The Developers will construct a commercial complex on the said land. Developer shall be responsible and shall bear all costs to vacate the other two tenants.

(b) The three owners collectively will get the ownership of 65% of the commercial complex and 35% shall be with OPs. Owners shall lease their share to the Developers.

(c)       Construction to be completed in 18 months.

 

(d)       Later, an MOU dated 12.02.2007 was entered into with the following additional terms;

 

(i) Construction to commence in 10 months from MOU.

(ii) Upon construction, owners shall lease their share of 65% area to the Developers for a period of 10 years.

(iii) Developers shall pay a rent of Rs 2 Lacs per month and Rs 2 lacs per month for using the amenities.

(iv) Developers have a right to sub-let the area leased out.

15. As Mr. D Vijay Kumar passed away on 28.10.2007, his wife, the Appellant inherited his share and became co-owner of the property. She signed a fresh DA dated 03.03.2008 as well as the Lease Agreement in favour of the Developers for 65% share with the following terms, which were also however concealed:-

(a) Rent payable will be Rs 5 Lacs per month, (instead of Rs 2 Lacs rent and Rs 2 Lacs for amenities earlier).

(b) Lease term extended to 20 years (instead of 10 years).

(c) Lease to commence from 05.10.2008.

(e) Developer has right to make structural changes.

(f) Due to delay, they entered into a Supplementary MOU on 20.08.2008 for lease to commence w.e.f 15.03.2009.

16. The Respondent No 1 & 2 completed the construction of commercial complex of 24,233 Sq. Ft in March 2009. In terms of the DA, the Owners' portion was taken on lease w.e.f 14.03.2009. The Respondents made certain structural changes and the total constructed area increased to 29,200 Sq. Ft. Thus, they applied to MCH for regularization, which is pending approval. The Appellants are well aware of this fact. 11 years after the construction is completed, the Appellants sent a legal notice dated 12.08.2020 alleging deficiency of service. It was replied to on 24.10.2020. Thereafter, she and her sons, (Respondent No 3 & 4) filed a Consumer Complaint u/s 47 of the Act on 10.04.2021 and vide order dated 05.07.2021, the Complaint was dismissed by the State Commission on the ground of limitation and that the transaction being commercial in nature the complaint was not maintainable,

17. The learned counsel for the Respondent argued that in the Appeal the specific averment is that they confronted the OPs in the year 2014 for OC. Thus, , the Complaint should have been filed within 2 years from the completion of construction or at best within two years from the first inability of the OPs to provide OC, or within two years from the date of application for regularization of deviated area in the year 2016. However, the Appellant complained after 11 years. The Hon'ble Supreme Court in Major (Retd.) Inder Singh Rekhi Vs DDA (1998) 2 SCC 338 has held that corresponding repeatedly will not give rise to fresh cause of action. Cause of action for limitation would be the one that arose when the refusal was made for the first time. The allegation that in November 2019 the Respondent No 1 & 2 carried unauthorised construction on the terrace will not give rise to any cause of action for the present case, for covering the lapse of time under limitation, as the prayer in the Complaint is seeking OC and not to remove alleged construction. The regularization of additional construction is a municipal issue and appropriate remedy would be under the local municipal laws.

18. Very pertinently, the dispute pertains to a commercial transaction which is not liable to be adjudicated under the Act. In the present case, the inter-se disputes between the parties as co-owners of the commercial complex do not fall within the purview of the Act. The present disputes pertain to a commercial DA for shopping complex. The Appellant entered into a commercial lease agreement with Respondent No. 1 and 2 and leased out their entire major portion of the commercial complex to them at a consideration of Rs 5 Lacs per month. The Appellant and her two sons are enjoying the rentals since 2009.

19. Under no circumstances, the said commercial property is being used by the Appellant for earning her livelihood by means of self-employment. In the entire complaint there is no averment to the effect that the Appellant is using the commercial property by means of self-employment. The commercial complex is being used by the Appellant for commercial purposes. Therefore, it does not fall under the explanation under Section 2(7)(ii) of the Act. In Bunga Daniel Babu Vs M/S Sri Vasudeva Constructions (2016) 8 SCC 429 relied upon by the Appellant has no application, as the same pertained to a joint development agreement of a residential property. The present case is a simple case of joint development agreement between landowner and developer where the DA was to share the ownership of the constructed residential flats in a certain proportion between them. However, in the present case, the DA is not a simple agreement for construction of commercial complex by developer and sharing the constructed area in a certain proportion. The owners entered into a complete commercial transaction with the developer for services of evicting the owner's tenants from the premises, construction of the commercial complex, and for leasing of the owner's entire share to the Developer on a long-term lease of 20 years with a right to sub-lease, including making alterations. It was a comprehensive commercial agreement between the parties.

20. In Sunil Kohli & Anr. Vs M/S. PurEarth Infrastructure Limited, the Hon'ble Supreme Court in Civil Appeal No: 9004-9005 of 2018 has held that 'if the commercial use is by the owner himself for the purpose of self-employment, then only he is qualified to be a consumer' under the CPA". In DLF Universal Ltd. Vs Anjani Das & Anr, First Appeal No: 1791 of 2017 the NCDRC on 13.04.2018 has held that "in order to bring their case within four corners of the explanation, the complaints are required to prove that the commercial plot was booked by them exclusively for the purpose of earning their livelihood by means of self-employment.

21. We have examined the pleadings, the associated documents on record and carefully heard the extensive arguments of learned counsels for both the parties. The matter at this stage is on maintainability of the complaint based on two fundamental aspects. Whether, in the given nature of the transaction, the Appellant is a consumer?; and whether the complaint is barred by limitation?

22. Adverting to the first issue, the definition of the term 'Consumer' as contained in Section 2(1)(d) of the Act of 1986 as it stood after the amendment Act of 2002, reads:

(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 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;] (Emphasis supplied)

23. While elaborately discussing the impact of amendments made to the definition of 'Consumer' in relation to exclusion of categories of activities as envisaged under the exception of commercial activity, particularly after the 2002 Amendment, the Hon'ble Supreme Court in Shrikant G. Mantri Vs. Punjab National Bank, Civil Appeal No.11397 of 2016 decided on 22.02.2022, held as under:-

30. It could thus be seen that by the 2002 Amendment Act, the legislature clearly provided that a person, who avails of such services for any commercial purpose would be beyond the ambit of definition of the term 'consumer'. The Explanation, which is an exception to an exception, which earlier excluded a person from the term 'commercial purpose', if goods were purchased by such a person for the purposes of earning his livelihood by means of self-employment, was substituted and the Explanation was made applicable to both clauses (i) and (ii). It can thus clearly be seen that by the 2002 Amendment Act, though the legislature provided that whenever a person avails of services for commercial purposes, he would not be a consumer; it further clarified that the '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 selfemployment.

31. It is thus clear that by the 2002 Amendment Act, the legislature has done two things. Firstly, it has kept the commercial transactions, insofar as the services are concerned, beyond the ambit of the term 'consumer' and brought it in parity with Section 2(1)(d)(i), wherein a person, who bought such goods for resale or for any commercial purpose, was already out of the ambit of the term 'consumer'. The second thing that the legislature did was that even if a person availed of the commercial services, if the services availed by him were exclusively for the purposes of earning his livelihood by means of selfemployment, he would still be a 'consumer' for the purposes of the said Act. Thus, a person who availed of services for commercial purpose exclusively for the purposes of earning his livelihood by means of self-employment was kept out of the term 'commercial purpose' and brought into the ambit of 'consumer', by bringing him on par with similarly circumstanced person, who bought and used goods exclusively for the purposes of earning his livelihood by means of selfemployment. It could thus be seen that the legislature's intent is clear. If a person buys goods for commercial purpose or avails services for commercial purpose, though ordinarily, he would have been out of the ambit of the term 'consumer', by virtue of Explanation, which is now common to both Sections 2(1)(d)(i) and 2(1)(d)(ii), he would still come within the ambit of the term 'consumer', if purchase of such goods or availing of such services was exclusively for the purposes of earning his livelihood by means of selfemployment. With this legislative history in background, we will have to consider the present case.

32. The purpose of the said Act has been succinctly described by this Court in the case of Laxmi Engineering Works vs. P.S.G. Industrial Institute 6 (1995) 3SCC 583, which is as under:

"10. A review of the provisions of the Act discloses that the quasijudicial bodies/authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not courts though invested with some of the powers of a civil court. They are quasijudicial tribunals brought into existence to render inexpensive and speedy remedies to consumers. It is equally clear that these forums/commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. The forum so created is uninhibited by the requirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself; any recognized consumers' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf. The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for "businessto consumer" disputes and not for "businesstobusiness" disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal."

33. It could thus be seen that this Court has clearly held that the idea of enacting the said Act was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. It has been held that the entire Act revolves round the consumer and is designed to protect his interest. It provides for "businesstoconsumer" disputes and not for "businessto business" disputes. It has been held that forums/ commissions provided by the said Act are not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services.

34. In the case of Laxmi Engineering Works (supra), this Court, while considering the scope of the definition of the expression 'consumer' with relation to Section 2(1)(d)(i) of the said Act and the Explanation added by 1993 Amendment Act, observed thus:

"11. Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means insofar as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression 'resale' is clear enough. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. 'Commercial' de-notes "pertaining to commerce" (Chamber's Twentieth Century Dictionary); it means "connected with, or engaged in commerce; mercantile; having profit as the main aim" (Collins English Dictionary) whereas the word 'commerce' means "financial transactions especially buying and selling of merchandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit" he will not be a 'consumer' within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion -- the expression "large scale" is not a very precise expression -- Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression "commercial purpose" -- a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition of expression 'consumer'. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of selfemployment, such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by selfemployment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of selfemployment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an autorickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an autorickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of selfemployment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words."

[Emphasis supplied]

35. It can thus be seen that this Court observed that the National Commission was taking a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit" he will not be a 'consumer' within the meaning of Section 2(d)(i) of the Act. This Court observed that in order to obviate any confusion that the expression "large scale" was not a very precise expression, the Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993. It has been held that that the explanation excludes certain purposes from the purview of the expression "commercial purpose". Various examples have been given by this Court as to what would come within the term of 'selfemployment'.

36. One instance given is that a person who purchases a typewriter and works on the typewriter himself, the purchase would be for the purposes of earning his livelihood by means of selfemployment and he would not cease to be a 'consumer' for the purposes of the said Act. Another example given is that, if a person who purchases an autorickshaw to ply it himself on hire for earning his livelihood, he would still be a consumer too. This Court held that the question as to whether the transaction is for the 'commercial purpose' or for 'earning his livelihood by means of selfemployment' is a question of fact that has to be decided in the facts of each case. It has been held that it is not the value of the goods that matters but the purpose to which the goods so bought, are put to. It has been held that several words used in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of the Parliament abundantly clear, that the goods bought must be used by the buyer himself, for earning his livelihood.

42. It is thus clear, that this Court has held that the question, as to 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 businessto business transactions between commercial entities; that the purchase of the good or service should have a close and direct nexus with a profit generating activity; that the identity of the person making the purchase or the value of the transaction is not conclusive for determining the question as to whether it is for a commercial purpose or not. What is relevant is the dominant intention or dominant purpose for the transaction and as to whether the same was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. It has further been held that if the dominant purpose behind purchasing the good or service was for the personal use and the consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, then the question of whether such a purchase was for the purpose of "generating livelihood by means of self-employment" need not be looked into.

45. It could thus be seen, that when a person avails a service for a commercial purpose, to come within the meaning of consumer' as defined in the said Act, he will have to establish that the services were availed exclusively for the purposes of earning his livelihood by means of self-employment. There cannot be any straitjacket formula and such a question will have to be decided in the facts of each case, depending upon the evidence placed on record.

24. The case of the Complainant (including the Respondent No. 3 & 4) is that, between her husband and the Opposite Parties, there was a DA as long back as in the year 2005 for construction of a commercial complex. Subsequently, as her husband expired in 2007, the Complainant and Respondents - 3 & 4 who are the undisputed legal heirs of the deceased, have executed a fresh DA with the same OPs in the year 2007. Even in this DA, the property to be constructed and in fact was constructed by the OP is a commercial complex at the entire cost of the OPs and the DA provided that the owners will be entitled for 65% of the said commercial complex and the developers OPs will be entitled to 35%. It is clear from the above and the DA that the intention of the parties right from the very beginning when they entered into the DA and continued thereafter was to develop and construct a commercial complex but not any residential property.

25. It is undisputed that the Complainant and Respondent No. 3 & 4 are the owners of the 65% of the Commercial Complex in question admeasuring 24,233 Sq. Ft which was constructed in March 2009. Thereafter, the Respondents made certain structural changes and the total constructed area was further increased to 29,200 Sq. Ft. Therefore, the Complainant and the Respondent No. 3 & 4 are owners of 65% of the Commercial Complex admeasuring 29,200 Sq Ft. This they have given on a commercial lease to the Opposite Parties for a period of 20 years at consideration of Rs. 5,00,000 Per Month from April 2009. Entering into a DA for construction of the said commercial complex with ownership of 65% of the area admeasuring 29,200 Sq Ft and further entering into long term commercial lease with the OPs, as part of the DA itself for consideration of Rs. 5,00,000 per month in April 2009, is clearly a commercial activity of high value by the scope, purpose and the commercial lease agreement entered into and in vogue for several years. The Complainant's claim that the said DA for the said large commercial complex and 20 years lease was for her livelihood was mere assertion and uncorroborated. In due consideration of the facts established, law and precedents discussed above, clearly, the Complainant cannot be termed as a Consumer within the scope of the Consumer Protection Act.

26. As regards period of limitation, it is an admitted position that the physical possession of 65% share of the commercial property of the 29,200 Sq Ft was delivered by the OPs to the Complainants many years ago in the year 2009. The relief sought by the Appellants before the learned State Commission was the following:

"To direct the Opposite Parties to handover Occupancy Certificate obtained from the GHMC, NOC from Fire Safety Department, original Sanctioned Plan, GHMC mutation and assessment copies and electricity and water connection permissions and other related documents linked to the property which were obtained at the time of sanction of building permission and completion of the construction of the said building."

27. When the physical possession of the property was already delivered and the Complainant and the Respondent No. 3 & 4 are enjoying the possession of the property physically for over 12 years, they cannot suddenly have grievance now, turn around and file a complaint demanding the said documents and attempt to bring the bring the case within the limitation of filing of the Complaint for deficiency in service which under Section 24A of the Act is only two years. There is nothing on record to show that there was any continuous cause of action or that they had been demanding the said documents continuously right from 2009.

28. No one can be allowed to sleep over their rights for well over 12 years and suddenly discover a difficulty and file a complaint for deficiency in the service saying that the documents such as NOC from the Fire Department, sanction plan etc. be handed over to them. 12 years is too long a time for raising the issue.

29. In view of the foregoing discussions, on the ground of not being a consumer under the Act as well as lapse of limitation, the present Appeal fails.

30. Accordingly, the First Appeal No. 582 of 2021 is dismissed.

31. All other pending Applications, if any, are disposed of accordingly. There shall be no order as costs.

...................................... SUBHASH CHANDRA PRESIDING MEMBER ................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) MEMBER

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National Consumer Disputes Redressal

Mrs. Dundoo Aruna Kumari vs Y. Naga Satish & 3 Ors. on 25 October, 2023