State Consumer Disputes Redressal Commission
Haryana Urban Development Authority ... vs Tradex India Corporation Pvt. Ltd. ... on 8 November, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.1014/2002 & 1071/2002 Date of Institution: 13.05.2002 & 21.05.2012 Date of Decision: 08.11.2012 Appeal No.1014 of 2002 Haryana Urban Development Authority through its Estate Officer, Sector 14, Gurgaon. Appellant (OP) Versus Tradex India Corporation Pvt. Ltd. through its Managing Director, Ajay K. Gupta, Oriental House, 19 Community Center, Gulmohar Enclave, New Delhi. Respondent (Complainant) For the Parties: None for appellant. Shri Ashwani Talwar, Advocate for respondent. Appeal No.1071 of 2002 Tradex India Corporation Pvt. Ltd. through its Managing Director, Ajay K. Gupta, Oriental House, 19 Community Center, Gulmohar Enclave, New Delhi. Appellant (Complainant) Versus Haryana Urban Development Authority through its Estate Officer, Sector 14, Gurgaon. Respondent (OP) For the Parties: Shri Ashwani Talwar, Advocate for appellant. None for respondent. BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. O R D E R
Justice R.S. Madan, President:
These two appeals i.e. appeal bearing No.1014/2002 titled as Haryana Urban Development Authority vs. Tradex India Corporation Pvt. Ltd. and appeal No.1071/2002 titled as Tradex India Corpn. Pvt. Ltd. vs. Haryana Urban Development Authority are before this Commission in view of the order dated 22nd August, 2012 passed by Honble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.694 of 2009 whereby both these appeals have been remanded to this Commission for deciding the same afresh in accordance with law.
The brief facts of the present case as emerged from the record are that the complainant had applied for allotment of institutional plot in Sector-32, Gurgaon vide application No.GGN/INST/32/0123 dated 30.07.1990 alongwith the amount of Rs.81,000/- which was deposited on 30.07.1990. The grievance of the complainant before the District Forum was that neither the opposite party called the complainant for interview nor informed about the fate of its application and thus alleging it a case of deficiency in service on the part of the opposite party, the complainant filed complaint before the District Consumer Forum with the prayer to issue direction to the opposite party to consider the application of allotment of complainant and to allot the institutional plot in Sector 32, Gurgaon or in any other Sector in Gurgaon as per the rules enabling the complainant to deposit further amount, if any.
Upon notice, the opposite party contested the complaint by filing written statement. In the preliminary objections it was stated that the complaint under the Consumer Protection Act was not maintainable and also that the complaint was badly time barred. On merits it was stated that as per the record, the amount of Rs.81,000/- was refunded vide cheque No.553 dated 29.7.1998 by the office of Chief Administrator, HUDA, Panchkula to the complainant vide their letter dated 19.8.1998. However, on the representation of the complainant regarding non-receipt of the said cheque, the other cheque bearing No.559545 dated 4.7.2000 of Rs.81,000/- was again sent to the complainant by the Chief Administrator, HUDA, Panchkula vide their letter dated 7.7.2000.
On appraisal of the pleadings of the party and the evidence adduced on the record, District Consumer Forum accepted complaint and issued direction to the opposite party as under:-
..In our opinion, the opposite party should have refunded the amount at the earliest when the complainant was remained unsuccessful. It is unnecessary delay on the part of the opposite party. The money was deposited by the complainant in the year 1990 but the opposite party had refunded the amount in the year 1998 i.e. after eight years from the date of deposit which amounts to deficiency in service on the part of the respondent. So the opposite party is directed to refund the amount of the complainant alongwith interest at the rate of 15% interest p.a. from the date of deposits till the date of payment. The opposite is also directed to pay an amount of Rs.2000/- to the complainant as cost of litigation.
Aggrieved against the order of the District Consumer Forum, the opposite party filed appeal No.1014/2002 for setting aside the impugned order and complainant filed appeal No.1071/2002 seeking direction to the opposite party to the opposite party to consider the application of complainant for allotment of Institutional Plot in Sector 32, Gurgaon or in any other Sector in Gurgaon, as per rules.
Heard.
At the very outset the question for consideration before us is whether the complaint filed by complainant was maintainable under the Consumer Protection Act? The answer to this question is negative because the complainant had applied for allotment of a plot for commercial purpose and therefore the complainant cannot be termed as a consumer. It is also settled law that a Limited Company cannot seek any relief under the Consumer Protection Act.
Honble National Consumer Commission in case cited as M/S MCS COMPUTER SERVICES (P) LTD. VERSUS M/S ALLENA AUTO INDUSTRIES PVT. LTD., 2012(2) CPR 68 (N.C.) has held that complaint filed by a private limited company is not maintainable under the Consumer Protection Act, 1986 because the Limited Company cannot be for the earning livelihood and the Limited Company does the commercial activities for its shareholders. The relevant part of the judgment rendered in M/S MCS COMPUTER SERVICES (P) LTD. VERSUS M/S ALLENA AUTO INDUSTRIES PVT. LTD. (Supra) is as under:-
Respondent is a private limited company and the commercial activities carried out by it cannot be for the earning livelihood by means of self-employment. Company has to act through somebody and the question of livelihood and self-employment under these circumstances would not arise. Company has judicious identity and it can be sue through a person. Company does the commercial activities for its shareholders. Question of earning livelihood by means of self-employment would not arise.
In ADVIK INDUSTRIES LTD. versus UPPAL HOUSING LIMITED & ANR, IV(2012) CPJ 159 (NC), Honble National Commission held the Limited Company not a consumer by relying upon the following judgments:-
8. This Commission in Monstera Estate Pvt. Ltd. v. Ardee Infrastructure Pvt. Ltd., IV(2010) CPJ 299 (NC), has held that:
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. 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.
9. Also, see Rajasthan State Industrial Development & Investment Corporation v. Diksha Enterprises, III(2010) CPJ 333 (NC) and this Commissions judgment in Revision Petition No.1129 of 2012, Shri Harnam Singh v. Shalimar Estate Pvt. Ltd. & Ors., III(2012) CPJ 225 (SC), decided on 29th May, 2012.
The Honble Supreme Court in Birla Technologies Ltd versus Neutral Glass and Allied Industries Ltd, 2011(1) CPR 1 (SC) has held that if the services are availed for commercial purpose then the dispute between the parties cannot be a consumer dispute.
On behalf of the complainant it has been argued that the complainant is an old one relates to the year 2000 whereas the amendment in the Consumer Protection Act took place w.e.f. 15.03.2003, therefore the commercial activities cannot be taken the ground to dismiss the complaint.
The plea taken on behalf of the complainant is not acceptable in view of the judgments rendered by Honble Supreme Court in case Cheema Engineering Services vs. Rajan Singh, 1997(1) Supreme Court Cases 131, wherein it has been held that:
Where goods used for commercial purposes within the meaning of exception clause (d)(i) or exclusively for the purpose of earning his livelihood by means of self-employment within the meaning of the explanation-to be determined on the basis of evidence-burden of proof of applicability of the Explanation is on the person seeking to invoke it for his claim of being a consumer.
Self-employment, connotes in a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. H includes the members of his family.
In case of Laxmi Engineering Works vs. P.S.G. Industrial Institute, 1995(3) Supreme Court Cases 583 it has been held as under
D. Consumer Protection Act, 1986 S.2 (d)(i) and Expln. Consumer Exclusion in case of purchase for commercial purpose Costly machine (of value of Rs.21 lakhs) purchased by Appellant from respondent for its business of manufacture of machine parts- Machine found to be defective resulting in loss to appellant- Complaint lodged by appellant before Maharashtra Consumer Disputes Redressal Commission claiming Rs.4 lakhs from respondent-Appellant claiming to be covered by the Expln., being a proprietary concern of a diploma-holder in Engineering Appellant concern established under Employment Promotion Programme by obtaining financial assistance from State Financial Corporation and other sources and registered as a small-scale Industry with the Directorate of Industries-Held on facts, appellant not covered by the Expln. And is having purchased the goods for commercial purpose, was not a consumer Hence complaint not maintainable- Appellant entitled to file suit claiming such relief and for that appellant could get benefit under S.14 of Limitation Act, 1963. Held.
In view of the above we find that this case is fully covered by M/S MCS COMPUTER SERVICES (P) LTD. VERSUS M/S ALLENA AUTO INDUSTRIES PVT. LTD. (Supra); ADVIK INDUSTRIES LTD. versus UPPAL HOUSING LIMITED & ANR case (Supra) and Birla Technologies Ltd case (Supra). Since, the complainant does not fall within the definition of consumer, the impugned order passed by District Forum cannot sustain.
Hence, appeal No.1014/2002 filed by opposite party-HUDA is accepted, the impugned order is set aside and the complaint is dismissed. Consequently, appeal No.1071/2002 filed by complainant stands dismissed.
However, in terms of judgment of the Honble Supreme Court in Laxmi Engineering Works Versus PSG Industries Institute (1995) 3 SCC 583, the complainant may seek exemption/condonation of the time spent before the Consumer Fora to avail remedy before the Court having competent jurisdiction, within a period of 60 days from the date of passing of this order.
The original order/judgment be attached with appeal No.1014/2002 and certified copy be attached with appeal No.1071/2002.
Announced: Justice R.S. Madan 08.11.2012 President B.M. Bedi Judicial Member