National Consumer Disputes Redressal
Manu Talwar & Anr. vs Bptp Limited on 4 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 871 OF 2015 1. MANU TALWAR & ANR. B-513, NEW FRIENDS COLONY, NEW DELHI-110025 2. SMT. RAMESH TALWAR B-513, NEW FRIENDS COLONY, NEW DELHI-110025 ...........Complainant(s) Versus 1. BPTP LIMITED M-11, MIDDLE CIRCLE, CONNAUGHT CIRCUS, NEW DELHI-110001 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. Rahul Madan, Advocate For the Opp.Party :
Dated : 04 Sep 2015 ORDER
JUSTICE J.M. MALIK
1. The term "...... services availed by him, exclusively for the purposes of earning his livelihood, by means of self-employment", occurring in definition of 'consumer', in Explanation appended thereto, cannot be equated with extension of business activities, which are already in existence. Those are as different as 'chalk and cheese'. The main controversy revolves around the question, "whether, the complainants, Manu Talwar ,Mand Smt. Reshma Talwar, complainant Nos. 1 & 2, respectively, who transact business in partnership, under the name and style of "Objects D' Art India", are 'consumers'?".
2. The present complaint was filed by the above said complainants. They made the following averments. Smt. Saroj Talwar, mother of complainant No.1 is the third partner. The partnership creates art and decoration pieces at its factory situated on Rampur Road, Moradabad. Smt. Saroj Talwar looks after the production at Moradabad and complainant No.1, also looks after production business for 3-4 days in a week, at Moradabad. The turnover of the business in the year 2013-14 was approximately Rs.29.00 crores, similar to the last year's turnover. The entire products of business are exported to various countries, including USA, Germany, France, Italy, Spain and other countries. The complainants have a Home Furnishing Products Factory premises at A-55, Sector-58, Noida. They are using this address also as the office of Moradabad business. However, with the enormous growth potential of the business, the complainants felt a compelling necessity of having an adequate office and demonstration unit at a prestigious and accessible location in the NCR of Delhi to serve the overseas clients. The complainants agreed to purchase two corporate suites in the BPTP District, exclusively for their own use in business and for the purpose of earning their livelihood. The complainants got enamoured by the BPTP Brochure which was connected with Skyway to the Grand Hyatt Hotel. Sh. Krishan Radhu and Smt. Menka Radhu, the parents of complainant No.2, also joined hands in the business and the family wanted to have three corporate Suites in the project to ensure a continuous bigger space for enhanced value and the office of the complainants in NCR of Delhi.
3. The complainants entered into an Commercial Space Buyer's Agreement, with BPTP Ltd., the OP, on 30.08.2011, for purchase of Suite Nos. 1116 and 1117 by complainants and adjacent Suite No. 1115 by Sh. Krishan Radhu and Smt. Menka Radhu on the 11th floor of 1st Tower. The complainants paid an amount of Rs.4,11,95,556/-, about 80% of the entire said consideration to the OP, by 30.01.2015. The OP vide letter dated 01.05.2015, unilaterally, changed corporate Suites allotted to the complainants from Suit Nos. 1116 & 1117 to 615 and 616. Floors have also been changed from 11th floor to 6th floor. The complainants had already paid the preferential location charges for the units 1116 and 1117. With the change of the suite Numbers, its contiguity with Suite No.1115 has been lost. They have also changed the unit of Sh.Krishan Radhu and Smt. Menka Radhu from 11th floor to 8th floor. Sh.Krishan Radhu and Smt. Menka Radhu, have filed a "suit", for refund of their amount, for breach of agreement. Thereafter, correspondence went on between the parties, but those did not ring the bell. Ultimately, this complaint was filed, with the following prayers :-
"a) direct the respondent to refund the amount of Rs.4,11,95,556/- paid by the complainants to the respondent along with interest @ 18% p.a., compounded quarterly on the said amounts from the respective dates of payments to the respondent, till the date of its refund to the complainants.
b) Respondent be further directed to pay damages / compensation of Rs.5,00,000/- to the complainants on account of mental torture, harassment, loss of business and also for unfair trade practice adopted by the respondent.
c) The respondent be further directed to pay Rs.1,00,000/- as costs of the litigation of the present complaint.
d) such other and further order which this Hon'ble Commission may deem fit and proper in the circumstances of the case be also passed".
4. The learned counsel for the complainants vehemently argued that the complainants are consumers, within the purview of Section 2(1)(d) of the C.P.Act, 1986. The counsel for the complainants has placed reliance on the following judgments :-
i) Gandikota Subba Rao Vs. G. Srinath, RP No.1220 of 2012, decided on 01.10.2012.
ii) Kavita Ahuja Vs. Shipra Estate Ltd., CC No.137 of 2010, decided on 12.02.2015.
iii) Sanjay Kumar Joshi Vs. Municipal Board, 2014 Law Suit (SC) 970, decided on 26.09.2014.
5. The facts of the above said case (RP 1220/2012) are wee bit different. In that case, an individual had filed the complaint for residential purposes. In CC 137/2010, three residential flats were purchased by one individual. In Sanjay Kumar Joshi (supra), the case pertains to an 'open auction' of residential plot, on 21.01.2010.
6. The counsel for the complainants also referred to two more judgments (1) CC No. 57 of 2011, titled M/s. Chambal Fertilisers & Chemicals Ltd. Vs. M/s. IFFCO-TOKIO General Insurance Co. Ltd., decided on 04.04.2012, by this Commission. This case pertains to 'insurance' and the facts are altogether different. (2) (2006) 203 CTR All 167, titled Commissioner of Income Tax Vs. Sagar Mal Shambhoo Nath, decided on 16.12.2005. This case pertains to payment of income tax and constitution of partnership.
7. For the following reasons, we are unable to clap any significance to the said argument. The plea raised by the counsel for the complainants is palliative and does not delve deep to the roots of malady. It must be borne in mind that the complaint was filed on behalf of the complainants, on 12.08.2015, i.e., after the amendment of the C.P.Act, 1986, which came into effect, on 15.03.2003. Section 2(1)(d) defines consumer and runs as follows :-
"(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 boys 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 service 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].
8. It is clear that in this case, the complainants wanted a third office space. They are already having one commercial space and they have applied for two more commercial office spaces.
9. In Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. - IV (2010) CPJ 299 (NC), this Commission held, as under :-
"Housing - Purchase of space for commercial purpose - There was delay in possession. Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed. Deficiency in service was alleged. It was held that even if private limited company was treated as 'person', purchase of space could not be for earning its livelihood. Purchase of 'space' was for commercial purpose".
The same ratio will apply in this case as well.
10. In Shika Birla Vs. DLF Retailers Developers Ltd., Consumer Complaint No. 183 of 2012, the Hon'ble Apex Court, in Civil Appeal No.5458 of 2013, dated 08.07.2013, upheld the order of this Commission, while observing that the complainant does not fall within the definition of 'consumer', under Section 2(1)(d).
11. In Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India) Ltd., & Anr., Consumer Complaint No.296 of 2011, decided by this Commission, on 03.07.2012, the Hon'ble Apex Court, in Civil Appeal No. 6229 of 2012, decided on 14.09.2012, upheld the order of this Commission that the petitioner was not a 'consumer' when he intended to purchase some permanent accommodation at Mumbai, for his stay during his business visits, from Delhi, to save on the expenditure incurred for hotels. For that purpose he had booked two flats.
12. In M/s Purusharth Associates Pvt. Ltd. Vs. M/s Uppal Housing Ltd. Plaza & Anr., this Commission in Consumer Complaint No.112 of 2012, decided on 05.07.2012, observed in paras 11 and 12 of its judgment , as under :
"11. Learned counsel for the complainant argued that these flats will be used for the officers of the Company. Learned counsel for the complainant could not deny that those officers would transact the commercial activity. A bare-look on this Resolution clearly goes to show that these flats would be meant for commercial purposes.
12. The complaint being not maintainable, is therefore, dismissed. Nothing will debar the complainant to seek remedy before the appropriate Forum, as per law.
13. The above-mentioned case (M/s. Purusharth Associates Pvt. Ltd.) was dismissed in limine. Aggrieved by that order the complainant approached the Apex Court. The Hon'ble Supreme Court in Civil Appeal Nos.8990-91/ 2012, vide its order dated 07.01.2013, dismissed the same.
14. In Subhash Motilal Shah (HUF) & Ors. Vs. Malegaon Merchants Co-op. Bank Ltd., the petitioner, 'HUF', had opened a current account to be used for commercial purpose. This Commission, vide its order dated 12.02.2013 held that it was not a 'consumer'. In the SLP filed against the said order, the Hon'ble Apex court upheld the order of this Commission and dismissed the SLP bearing Civil Appeal No. 39200/2013, dated 13.01.2014.
15. It is, thus, clear that even a 'HUF' was not allowed to open a current account for 'commercial purposes'.
16. Moreover, in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, it was held that if the goods (here in this case, it is space) are purchased in a large scale, it should be assumed to be for 'commercial purposes'.
17. In Consumer Complaint No. 306/2014, titled Pharos Solutions Pvt. Ltd. Vs. Tata Motors Ltd. & Ors, decided on 01.09.2014, this Bench held that "The car in hand was not purchased exclusively for the purposes of earning livelihood by means of self-employment for the Legal Director of the Company. It is not for the livelihood of the Director or personal use of the Director. He has to use the car only for commercial purposes. There is no resolution for purchase of car. In case the companies are allowed to save the court fees, the very purpose of ordinary consumer or as defined by the Act shall stand defeated. Consequently, we find that the present case is not maintainable and the same is, therefore, dismissed in limine", which was upheld by the Hon'ble Apex court in Civil Appeal No. 9724 of 2014, vide its order dated 03.11.2014.
18. We are of the considered view that the complainants are not 'consumers' as per definition laid down in Section 2(1)(d) of the C.P.Act, 1986. Further, there is no evidence that these premises are to be used by a person for the purpose of his livelihood, by means of self-employment. The case of a person who has purchased a commercial shop/space for the purposes of earning livelihood by means of self-employment is entirely different. He will be a 'consumer'.
19. In the result, we find that the complainants have failed to prove that they are 'consumers', as defined under Section 2(1)(d) of the C.P.Act, 1986. The complaint is, therefore, dismissed. However, there lies no rub for the complainants to seek remedy before any other appropriate forum or Civil Court, as per law. Further, they may seek help from the law laid down in the celebrated authority reported in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, in so far as the question of limitation is concerned.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER