National Consumer Disputes Redressal
Manager, M/S. Indus Towers Limited & ... vs Sayyad Shaneali Nadarali on 5 January, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 714 OF 2021 (Against the Order dated 31/08/2021 in Complaint No. 129/2017 of the State Commission Maharashtra) 1. MANAGER, M/S. INDUS TOWERS LIMITED & ANR. SITE ACQUISITION SECTION CHHATRAPATI CHOWK SARSWAT BANK BUILDING OPP DURGA MANDIR PRATAP NAGAR NAGPUR TAH AND DIST NAGPUR MAHARASHTRA 2. M/S. INDUS TOWERS LTD E-CORE 210, 2 FLOOR, MARBLE AGE VIMAN NAGAR PUNE 411 014 ...........Appellant(s) Versus 1. SAYYAD SHANEALI NADARALI R/O. 68 VIDHARBHA HOUSING COLONY, RAMNAGAR DATALA ROAD CHANDRAPUR CHANDRAPUR 442 401 ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),MEMBER FOR THE APPELLANT : FOR THE APPELLANTS : MS. SHWETA BHARTI, MR. ROHIT JOLLY, MR. HARSHAL SAREEM, ADVOCATES FOR THE RESPONDENT : FOR THE RESPONDENT : MR. M.G. BURDE, ADVOCATE Dated : 05 January 2024 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 ("the Act") against the Order dated 31.08.2021 passed by the learned State Consumer Disputes Redressal Commission, Maharashtra, Circuit Branch at Nagpur ("the State Commission"), in CC No.129 of 2017, wherein the Complaint filed by the Complainant (Respondent herein) was partly allowed.
2. For the sake of Convenience, the parties in the present matter are being referred to as mentioned in the Complaint before the State Commission. "Sayyad Shaneali Nadarali" (since Deceased) is referred as the Complainant (Respondent herein) while Manager of "M/s. Indus Tower Ltd." and M/s. Indus Tower Ltd having its office at Pune are referred as Opposite Party No. 1 & 2 (Appellants herein).
3. The matter in brief, as per the Complainant, is that he is the owner of two floors on plot No. L-68 at Mouza Ramnagar and agreed to lease 1000 Sq Ft. of this space to OP. The agreement entailed leasing out 600 Sq Ft for erection of a tower, generators, and other material, and 400 Sq Ft for other needs. He agreed to provide the specified premises and make necessary construction as required by the OP.
4. A formal agreement was entered into, with monthly rent of Rs.22,500/- for the first three years (from 06.04.2016 to 04.04.2019), with a 15% increase every three years thereafter. The Complainant alleged that he spent Rs.10,00,000/- on the said construction and for obtaining required sanction from Municipal Corporation Chandrapur. Moreover, the OP applied to MSEB. for an electric connection and meter installation on 16.02.2013 and he paid the demanded amount. However, despite the formal lease agreement, the OP failed to pay the monthly rent as specified and did not reimburse him the construction expenses. He contacted OP on multiple occasions but without response. Legal notices on 23.03.2016 and 11.04.2016 went unanswered. Non-compliance with lease agreement amounts to breach of contract and deficiency in service by OPs. Being aggrieved, he filed the Consumer Complaint No. 129 of 2017 seeking the relief that the said contract with O.P.Nos.1 and 2 be declared as frustrated. He claimed Rs.12,94,875/- as arrears of rent from 07.02.2013 to 06.09.2017. The Complainant claimed damages of Rs.30,00,000/- along with interest @ 15% p.a. and Rs.3,00,000/- as compensation for causing harassment and mental agony.
5. The OPs 1 and 2 have submitted their written version in response to the complaint. They admitted approaching the complainant and seeking possession of the premises, but contested several claims made by him. They denied that construction was to be carried out over 1000 sq. ft., asserting that there was already a pre-existing structure on the premises. They refuted the Complainant's assertion that he spent Rs. 10,00,000 for construction work at their behest and denied any agreement about providing power connection. The OPs 1 and 2 also challenged the existence of any enforceable contract, stating that it was never concluded due to protests from local residents regarding suspected radiation and the erection of a tower on the Complainant's terrace and the proposal was cancelled and the lease agreement was never signed. Therefore, the Complainant was not entitled to any of the reliefs sought and requested the dismissal of the complaint.
6. The State Commission on 31.08.2021 passed the following Order:
1. Complaint is partly allowed.
2. Prayer of the complainant at Serial No. (i) (ii) and (iii) are hereby rejected.
3. However, Opposite Party Nos.1 and 2 are jointly and severally hereby directed to pay to complainant Rs.10,00,000/- by way of damages. Opposite party Nos.1 and 2 shall comply the aforesaid direction within a period of 30 days from the date of receipt of copy of order, failing which Opposite party Nos.1 and 2 shall be liable to pay interest @ 12% p.a. till its realisation.
4. Opposite party Nos.1 and 2 are jointly and severally directed to pay to the complainant Rs.2,00,000/- towards physical and mental harassment as well as litigation cost of Rs.25,000/-.
5. Copy of the order be furnished to both parties free of cost.
7. Aggrieved by the Order of the State Commission, the Appellants/ OPs filed the present Appeal seeking the following:
a. Call for the records of the Consumer Case bearing No. 129 of 2017 before the Hon'ble State Consumer Disputes Redressal Commission, Nagpur Circuit Bench, Maharashtra and on a perusal thereof set aside the Impugned Order dated 31.08.2021 passed by Hon'ble State Consumer Disputes Redressal Commission, Nagpur Circuit Bench, Maharashtra in Consumer Case bearing No. 129 of 2017.
b. Pass any other order or directions which this Hon'ble Commission may deem fit and proper in view of the facts and circumstances of the present case.
8. In the present Appeal, the Appellants mainly raised the following: -
(a) The State Commission erred in not recognizing that the complaint was time-barred as the cause of action arose on 03.02.2013, and the Respondent did not raise any issues until 11.04.2016 when he issued a legal notice. There was an unexplained gap of over three years.
The State Commission failed to understand the nature of relationship between the parties, which is that of a landlord and tenant as per unexecuted lease deed. There was no exchange of goods or services from Appellants to the Respondent. Thus, he does not fall within the definition of a "consumer."
The allegations made by the Respondent did not fit within the definition of a "Complaint" under Section 2(1)(c) & 2(1)(d) of the Consumer Protection Act, 1986.
The State Commission incorrectly concluded that the Respondent was entitled to compensation due to a promise. Such a promise never materialized, and even if it did, the Respondent, not being a consumer, did not suffer any damages. Further, he was to provide peaceful possession of space for the proposed tower installation, which he failed to do due to protests from neighbours against the tower installation.
9. Upon notice on the Memo of Appeal, Respondent/ Complainant has not filed any Reply/objections to the present Appeals.
10. The learned Counsels for the Appellants reiterated the grounds of Appeal and raised several points of contention. They asserted that the draft Lease-Deed dated 07.02.2013 was merely a proposal and was never signed or enforced due to objections and opposition from the Respondent's neighbours. Therefore, it had no binding force. They contended that the intended relationship between the parties was that of landlord (Respondent) and tenant (Appellants) as per the draft Lease-Deed. The nature of this relationship was limited to the 'usage' or 'access' of the demised premises. They asserted that the Respondent did not qualify as a "Consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986. The proposed arrangement between the parties was that of a landlord-tenant relationship, making the Respondent ineligible to be deemed a consumer. Thus, the complaint did not fall within the legal definition of a "Complaint." They argued that the complaint was time-barred according to Section 24A of the Act and Section 69 of the Consumer Protection Act, 2019. The cause of action arose on 03.02.2013, and the Respondent issued a legal notice on 11.04.2016, more than three years later. Since the Respondent did not file an application for condonation of delay, the complaint should have been dismissed, being time-barred. No evidence was provided of the additional construction as claimed by the Respondent. The valuation report cited did not specify the timing of the construction. According to the unexecuted draft Lease-Deed, the Appellants were only obligated to pay the monthly rent, along with electricity and water charges, and no additional construction costs. The absence of invoices or payment receipts highlighted the questionable intent behind the Respondent's claim for an unjustifiable amount from the Appellants. He further argued there was no unfair trade practice involved because the Appellants neither sold any goods nor provided services to the Respondent. According to Section 2(1)(r) of the Act, an "unfair trade practice" is defined as any deceptive or unfair method or practice in trade or commerce. The learned Counsel contended that the Respondent was the one who was providing service, if any, to the Appellants under the unexecuted transaction. The nature of the relationship between the parties was that of landlord (lessor) and tenant (lessee) as per the Transfer of Property Act, 1882, based on the unexecuted lease deed. He asserted that since no goods or services were exchanged between the parties, the complaint filed was not maintainable. He relied on the following judgments to support his arguments: -
(a) Laxmiben Laxmichand Shah vs. Sakerben Kanji Chandan (2001) 9 SCC 604)
(b) M/s Grand Venezia Buyers Association Us. M/s Grand Venezia Commercial Towers Put. Ltd. (2017 SCCOnLine NCDRC 1644]
(c) Inderjit Singh Mangat vs. Godrej Properties Ltd. [CC No. 274 of 2015].
(d) Harish Kumar Kochar vs. Gilco Developers Pvt. Ltd. [Revision Petition No. 2386 of 2011].
(e) Haryana Urban Development Authority vs. Tej Refrigeration Industries Ltd. [(2013) 14SCC758)
(f) SBI Vs. B.S. Agricultural Industries [(2009)5SCC121]
11. The learned Counsel for the Respondent reiterated the facts of the case and emphasized the valuation report prepared by an authorized valuator, which indicated the construction expenses to be Rs. 12,65,800, contrary to the Appellants' claim of Rs. 10 lakhs. This report substantiated the Respondent's claim for compensation. Additionally, he disputed the Appellants' denial of the existence of an agreement between the parties. The Respondent argued that the Appellants' failure to sign the Lease Deed did not absolve them of their obligations. The counsel invoked the Indian Contract Act, highlighting the legal consequences of the Appellants' breach of contract. He challenged the Appellants' assertion of neighbourhood resistance due to radiation concerns, stating that there was no evidence to support this claim. This rebuttal emphasizes the Respondent's position on the construction expenses, the existence of a valid agreement, and the legal implications of the Appellants' actions under relevant sections of the Indian Contract Act and the Consumer Protection Act, 2019. The learned Counsel relied upon the following judgments to support his arguments: -
a) Faqir Chand Gulati Vs. Uppal Agencies Private Ltd. and Another [(2008) 10 SCC], decided on 10th July 2008 by the S.C.
b) Pawan Kumar & Anr. Vs. Raheja Developers Limited & Anr. [NC 296 Vol. III, decided on 04.06.2018].
c) M/s. Fortune Infrastructure (now known as MIs. Hicon Infrastructure) and Anr. V. Trevor D'lima and Ors. (2018(1) CPR 198 (SC), decided on 12.3.2018.
12. The learned Counsel for the Respondent filed IA/3703/2023, to implead Mrs. Asifa Bano, the widow of the deceased Respondent Shri Sayyed Shaneali, who passed away on 17.02.2023, as a Legal Representative (LR) in the case and confirmed unanimity in the family of the Complainant in this decision. Consequently, he sought her to be the legal representative of the deceased Respondent.
13. We have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.
14. The State Commission vide order dated 31.08.2021 observed:-
10).... No doubt, the complainant has failed to establish that the O.P. had executed the lease deed. But complainant has placed on record documents which only go to show that the O.P. Indus Tower Ltd. had given a proposal to the complainant for the use of premises on lease and thereafter did not keep the said promise. O.P. has also not placed on record any documents or material as to why the lease deed was not executed and why the promise was not performed."
11).... . I have gone through the said judgment delivered by Hon'ble Supreme Court of India. In that case the builder had refused to perform the contract and so there was a breach of contract. It was observed by the Hon'ble Supreme Court that breach of contract gives rise to action for damages, but the damages must be proved with reasonable certainty. It was further observed by Hon'ble Supreme Court that damages awarded should not be excessive and the court/tribunal needs to take a balance approach so as to insure right compensation. In the present case before us, I find that the complainant has failed to establish the execution of lease deed and entitlement of rent. In the same way complainant is not entitled for cost of construction. But the complainant who is Consumer has placed on record documents which go to show that the promise was made by O.P. to take the premises on lease but no enforceable contract was executed leading to not only monetary loss of the complainant but also mental pain and anguish. Complainant has thus led evidence to show that O.P. had indulged into an unfair trade practice. In such circumstances I am of the view that complainant is entitled for damages for the financial loss sustained. Complainant has claimed damages of Rs.30,00,000/- but I feel that the same is on a much higher side. In this respect the observations made by the Hon'ble Supreme Court of India in the case of M/s. Fortune Infrstructure ....V/s......Trevor D'Lima and others (Cited Supra), are very relevant that damages cannot be excessive and balanced approach had to be adopted while granting damages. In my view after taking into consideration all aspects, the grant of Rs.10,00,000/- by way of damages towards financial loss would meet the end of justice. Complainant is further entitled to sum of Rs.2,00,000/- towards compensation for mental pain and agony and Rs.25,000/- towards litigation expenses. In the light of the aforesaid discussion, I proceed to pass the following order.
15. The main issue in this case revolves around the breach of promise made by M/s. Indus Tower Ltd. to the Complainant, Sayyad Shaneali Nadarali (deceased). Despite the absence of a formal lease deed, Indus Tower Ltd. had proposed to lease 1000 sq. ft. of space from the Complainant for the erection of a tower and other construction work.
16. The core question in this case is "whether the Complainant/ Respondent is a "Consumer" under the Consumer Protection Act? Whether the liabilities of parties with respect to the subject draft Lease-Deed dated 07.02.2013, which remained in a provisional stage and not executed, is enforceable?
17. As regard 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)
18. 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 self-employment.
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 self-employment, 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 self employment. 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 self employment. With this legislative history in background, we will have to consider the present case.
19. 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 quasi judicial 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 quasi judicial 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 "business to consumer" disputes and not for "business-tobusiness" 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 "business to 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 self-employment, 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 self-employment, 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 self-employment" 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 self-employment 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 self-employment' 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 business to 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.
46. In the present matter, it is not in dispute that the appellant was already engaged in the profession of stockbroker, much before he availed of service of the overdraft facility from the respondent Bank. It is also not in dispute that he was also acting as a stockbroker for the respondent Bank. It is also not in dispute that the appellant took the overdraft facility and also sought enhancement of the same from time to time in furtherance of his business as a stockbroker and for the purpose of enhancing the profits therein. As already held by this Court in the case of Laxmi Engineering Works (supra), the terms "services availed by him", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" will have to be given its meaning, as intended by the legislature. The said terms will have to be construed in context with the purpose for which the said Act is enacted. We have elaborately discussed the legislative history as to how Section 2(1)(d) of the said Act has come in its present form from the original form. The amendments incorporated by the 1993 Amendment Act as well as by the 2002 Amendment Act would clearly show that the legislative intent is to keep the commercial transactions out of the purview of the said Act and at the same time, to give benefit of the said Act to a person who enters into such commercial transactions, when he uses such goods or avails such services exclusively for the purposes of earning his livelihood by means of self employment.
47. In the present case, the Commission has come to a finding that the appellant had opened an account with the respondent Bank, took overdraft facility to expand his business profits, and subsequently from time to time the overdraft facility was enhanced so as to further expand his business and increase his profits. The relations between the appellant and the respondent is purely "business to business" relationship. As such, the transactions would clearly come within the ambit of 'commercial purpose'. It cannot be said that the services were availed "exclusively for the purposes of earning his livelihood" "by means of self-employment". If the interpretation as sought to be placed by the appellant is to be accepted, then the 'business to business' disputes would also have to be construed as consumer disputes, thereby defeating the very purpose of providing speedy and simple redressal to consumer disputes."
20. Hence, drawing from the aforementioned legal position as enunciated in the Act and clarified by the Hon'ble Supreme Court, the Act is mainly for the purpose of securing expeditious legal remedies to Consumers. As per Section 2(1)(d) of the Act, a Consumer is a person who buys goods or hires or avails services for consideration, except for commercial purposes. However, this exception has been expanded to a limited extent that, if such transactions are carried out for the purpose of earning livelihood, the individual undertaking such transaction will be considered as a Consume. In the present case, however, the relationship between the parties is manifestly that of a landlord (lessor) and tenant (lessee) of an unexecuted lease deed. Further, more pertinently, it was the Appellant/ OP who intended to avail the temporary utilization of the premises of the Complainant, evidently for their commercial purpose. In any case, there was no exchange of any goods or services occurred between the parties whatsoever. Therefore, in the given transaction, the Complainant cannot be held to be a consumer under the Act and thus the complaint lacks necessary grounds for maintainability under the Act.
21. Having held that the Complainant is not a consumer with respect to the Appellant/OP, and thus consumer fora have no jurisdiction to adjudicate the complaint, we would not dwell into the second issue with respect to the liabilities of the parties with respect to the unexecuted Lease-Deed dated 07.02.2013 between them.
22. In view of the foregoing, the Appeal is allowed. The Impugned Order dated 31.08.2021 of the learned State Commission in CC. No. 129 of 2017 is set aside.
23. All the pending Applications, if any, are disposed of accordingly.
24. The Registry may refund the amount, if any due, deposited by the Appellants as per law.
...................................... SUBHASH CHANDRA PRESIDING MEMBER ................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) MEMBER