State Consumer Disputes Redressal Commission
M/S. Alfran Constructions Pvt. Ltd., vs M/S. K.V. Nadkarni& Assoc., on 18 December, 2013
BEFORE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI- GOA FA No. 63/13 M/s. Alfran Constructions Pvt. Ltd., A company duly incorporated, with its regd. Office At UG-1, Gomes Catao Complex, Near Cine Alankar, Mapusa, Goa, through Its M.D., Mr. Carlos Mauricio Fernandes Appellant V/s. 1. M/s. K.V. Nadkarni& Assoc., A partnership firm with its office at L/45-46, Alfran Plaza, 4th floor, M.G. Road, Panaji, Goa through its Mr. Kasmalnath V. Nadkarni 2. M/s. Venkatesh Narayan PrabhuMoni, Prop. of M/s. Prabhu Constructions, With office at 505/B, 5th floor, Dempo Trade Centre, EDC Complex, Patto Plaza, Panaji, Goa. .Respondents Appellant/O.P. No. 2 is represented by Adv. Shri. N.G. Kamat. Respondent No.1/Complainant is represented by Adv. Shri. AmolThali. Respondent No. 2/O.P. No. 1 is represented by Adv. Shri M. N. Raikar Coram: Shri Justice N.A. Britto, President Shri JagdishPrabhudessaiMember Dated: 18/12/2013 ORDER
[Per Shri Justice N.A. Britto, President] This appeal has been filed by the OP No.2 in C.C. No.91/2010 and is directed against order dated 16/08/2013 of the Lr. District Forum, by which both the OPs have been directed to execute a sale deed in favour of the Complainant and have further been directed to pay compensation of Rs. 1,00,000/-
and costs of Rs.10,000/-.
2. Some facts are required to be stated to dispose off this appeal and for that the parties hereto are being referred to in the names as they appear in the cause title of the complaint.
3. The Complainant is a firm of four partners doingthe business of land development and construction jobs.
`AlfranPlaza is a project which was started by OP No.2 and later was taken over by OP No.1. The Complainant by virtue of an agreement dated 10/08/2005 styled as `An Agreement for Construction cum Sale purchased office premises admeasuring 53.68 sq. mts. in block `C of the said Alfran Plaza for a sum of Rs.9.25 lacs to be constructed by OP No.1.
OP No.2 was a confirming party to the said agreement. The possession of the said office premises was handed over to the Complainanton 09/08/2006 and it is the same premises from which the Complainant operates, as can be seen from the address of the Complainant in cause title of the complaint.
4. The Complainant by letter dated 29/08/2008 called upon OP No.1 to execute the sale deed in respect of the said office premises followed by letter dated 17/09/2008.
By letter dated 12/11/08 addressed to the Complainant, OP No.1 requested the Complainant to remove the air conditioners installed in the open terrace which belongs to the owners of the property as it clearly amounted to an encroachment and requested them to relocate the said air conditioners within the Complainants premises and also called upon the Complainant to pay Rs.16,104/- towards the sinking fund. By letter dated 14/05/09 the Complainant informed OP No.1 that they had paid all the amounts towards the sinking fund and called upon OP No.1 to expedite the execution of the sale deed. Further letters followed and it appears that the removal of the said air conditioners by the Complainants has been the bone of contention between the parties for non execution of the sale deed, though otherwise the OP No.1 was inclined to execute the same.
5. The Complainant thereforefiled a complaint on 24/09/2010. Earlier, an application filed by OP No.2 dated 28/03/2012 invoking section 8 of the Arbitration and Conciliation Act, 1996 was dismissed by the District Forum by order dated 06/08/2012 and a revision filed against the said order, was dismissed by this Commission, by order dated 07/12/2012 in R.P. No.08/2012. The Lr.
District Forum was directed by virtue of the said order dated 07/12/2012 to dispose off the complaint within 45 days including the plea taken by OP No.2 that the Complainant is not a consumer within the meaning of section 2(1) (d) of the Consumer Protection Act, 1986.
6. The Lr. District Forum has brushed aside the order of this Commission dated 03/09/2012 in R.P. No.4/2009 filed by G.M.A.C. Financial Services India Ltd. produced before them, and has held that:
No doubt these premises are the registered office of the Complainant, who carries out business therein. But, for that matter, so also business carried out in most office premises purchased anywhere ! Most office purchasers do hope to carry out a profitable business therein whether they succeed or otherwise is a different matter. All office-premise purchasers cannot be barred from approaching the Consumer Forum for this reason.
7. Be that as it may, Shri N. G. Kamat, the lr. advocate of OP No.2 would submit that the Complainant is a firm of four partners doing the business of land development and construction, as stated in para 1 of the complaint, and further submits that the suit office premises were required by the Complainant for the purpose of their business. Lr. advocate would further submit, referring to para 24 of the complaint, that the office premises were purchased by the Complainant for the purpose of resale and therefore the Complainant would not be a consumer. Lr. advocate would further submit, referring to clause 27 of the agreement, that the sale deed had to be executed within two years from the date of taking possession which would mean that the sale deed was to be executed on or before 09/08/2008 and for non execution of the same the complaint had to be filed on or before 09/08/2010 and therefore the complaint which has been filed without any application for condonation of delay on 24/09/2010 is clearly time barred.
Lr. advocate would further submit that the owners of the property were required to be joined to the complaint as parties and in their absence no proper sale deed could be executed in favour of the Complainant and therefore the complaint is also bad for non-joinder of parties.
8. On the other hand, Shri Raikar the lr.
advocate of OP No.1 would submit that OP No.1 is ready to execute the sale deed and as far as the payment of compensation is concerned the same has been ordered to be paid only by OP No.2.
9. Shri A. Thali, the lr. advocate of the Complainant would concede that the Complainant is a business enterprise but submits that nowhere it is stated that a firm cannot file a complaint in as much as the expression `commercial in section 2 (d) (ii) of the Consumer Protection Act, 1986 has not been defined anywhere in the Act.
10. We are not at all impressed with the findings given by the Lr. District Forum or for that matter the submission made on behalf of the Complainant.
11. It is well settled that consumer jurisdiction is some sort of one way street and is meant only for consumers and not for others. It is only consumers who can approach the Fora under the Consumer Protection Act.
As held by this Commission in Cholamandalam Investment and Finance Co. Ltd. Vs. Yoganand Shankar Naik, 2013 (3) CPR 19 (Goa) a person before he or she approaches a Forum under the Consumer Protection Act, 1986, has to qualify himself to be a consumer, an expression which has been defined under section 2 (d) (i) or (ii) of the Consumer Protection Act, 1986 and further explained in the explanation below it. A person who buys any good for consideration for resale or for any commercial purpose or who hires or avails any services for consideration for any commercial purpose is excluded from the said definition under section 2(d) (i) or (ii) of the Act. The explanation further requires that the goods bought and used by the person or the services availed by such person should be exclusively for the purpose of earning his livelihood by means of self-employment. Reference was made to M/s. Cholamandalam D.B.S. Finance Ltd. Vs. Joginder Singh, I 2011 CPJ 225, wherein it was held that unless the goods were purchased or services were availed by a person exclusively for the purpose of earning his livelihood by means of self employment, such purchase or availment of service will be for commercial purpose.
12. We have perused the decision of the Apex Court in the case of Karnataka Power Transmission Corporation and anr. Vs. Ashok Iron Works Pvt. Ltd., 2009, (3) SCC 240 cited by lr. advocate Shri N. G. Kamat so also the decision of the Apex Court in Laxmi Engineering Works vs. P.S.G. Industrial Institute, 1995 (3) SCC 583 wherein the Apex Court in para 21 of the lr. judgement has held that whether the purpose for which a person has bought goods is a commercial purpose within the meaning of the definition of expression consumer in section 2 (d) of the Act is always a question of fact to be decided in the facts and circumstances of each case.
The Apex Court also took note of a decision of the National Commission wherein it was observed that the words for any commercial purpose are wide enough to take in all cases where goods are purchased for being used in any activity directly intended to generate profit.
The Apex Court has also held that by going by the plain dictionary meaning of the words used in the definition section the intention of Parliament must be understood to be to exclude from the scope of the expression consumer any person who buys goods for the purpose of their being used in any activity engaged on a large scale for the purpose of making profit and the words for any commercial purpose must be understood as covering cases other than those of resale of goods. The Apex Court further held that Parliament intended to deny the benefit of the Act to persons any consumers purchasing goods either for the purpose of resale or for the purpose of being used in profit making activity engaged on a large scale. Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods for their own consumption or even for use in some small venture which they may have embarked upon for making a living as distinct from large-scale manufacturing or processing activity carried on for profit.
13. The Complainant, a firm, would be a person as defined in section 2(1)(m) of the Act. Admittedly, the Complainant is a firm of four partners and as stated by the Complainant itself it is in the business of land development and construction. This business is meant for generating profits for the benefit of the said four partners.
The Complainant had sought the services of OP No.1 for the construction of the office premises for the purpose of using the same for the said business and admittedly, they are so being used.
It is, therefore, obvious that the Complainant as a firm had availed the services of OP No.1 for a commercial purpose i.e. for constructing office premises for conducting their business of land development and construction and therefore the Complainant, as a firm, could not have been a consumer as defined under section 2 (d) (ii) of the Act. It is not anybodys case that the services availed for the construction of office premises by the Complainant were meant for earning the livelihood by means of self employment.
14. The averments of para 24 of the complaint would also show that the Complainant was interested in selling the office premises presently used by the Complainant for the purpose of their business but had to turn down the offer because they had no title to the office premises. Looked from this background also the Complainant would not be a consumer.
15. In our order dated 03/09/12 in RP No.4/2009 filed by GMAC Financial Services India Ltd. (Supra) we had referred to the decision of the National Commission in MCS Computer Services (P) Ltd. Vs. M/s. Alina Auto Industries, 2012 (2) CPR 68 wherein it was held that the respondent being a private limited company and the commercial activities carried out by it cannot be for its earning livelihood by means of self employment and a Company has to act through somebody and the question of livelihood and self employment under such circumstances would not arise. Company does commercial activity for its shareholders. Question of earning livelihood by means of self employment would not arise.
16. A firm does commercial activities for the benefit of its partners. The Apex Court in Singhal Finstock (P) Ltd., 2012 (4) CPR 301 has reiterated that even if a private limited company was treated as a person purchase of space could not be for earning its livelihood. Purchase of space was for commercial purpose.
17. In view of the above discussion, the Complainant not being a consumer could not have approached the Lr. District Forum and the Lr. District Forum ought to have dismissed the complaint for want of jurisdiction which we hereby do. The other objections taken by Shri Kamat are left open. The Complainant is free to take benefit of section 14 of Limitation Act in case the Complainant files a suit for the relief claimed, as held by the Apex Court in Laxmi Engineering Works (Supra).
18. For reasons aforesaid we allow the appeal, set aside the impugned order and dismiss the complaint filed by the Complainant for want of jurisdiction.
[Shri. JagdishPrabhudesai] [Shri. Justice N.A. Britto] Member President /lm