Document Fragment View

Matching Fragments

5.      During the course of arguments, the learned counsel for the opposite party vehemently contended that since the complainant owns a number of residential properties, he cannot stated to be a consumer as defined in Section 2(1)(d) of the Consumer Protection Act.  Reliance in this regard was placed upon the affidavit of the complainant dated 27.6.2016.  I find that in the written version filed by the opposite party it did not claim that the complainant is not a consumer within the meaning of the Consumer Protection Act.  The said plea was sought to be taken by way of amendment of the written version and Interim Application No.4623/2016 was filed for this purpose.  However, when the aforesaid application came up for hearing, the learned counsel for the opposite party stated that he only wanted to place on record three documents i.e. (i) Occupancy Certificate in respect of the flat agreed to be sold to the complainant, (ii) the letter whereby possession was offered to the complainant during the pendency of the complaint and (iii) a copy of the order passed by this Commission in another Consumer Complaint filed by the complainant.   The aforesaid documents were allowed to be filed, along with a supporting affidavit.  In view of the limited prayer made on 20.5.2016, and lack of pleadings to this effect, the opposite party cannot be allowed to contend that the complainant is not a consumer as defined in the Consumer Protection Act.  However, even if I take into consideration the affidavit filed by the complainant on 27.6.2016, it would be difficult to say that the complainant had hired or availed the services of the opposite party for a commercial purpose and therefore, he is not a consumer as defined in Section 2(1)(d) of the Consumer Protection Act.

6.      The term 'commercial purpose' came to be considered by a Three-Members Bench of this Commission in Crompton Greaves Limited & Anr. Vs. Daimler Chrysler India Private Limited & Ors. Consumer Complaint No. 51 of 2006 and the following view was taken:

          "4.      The term 'commercial purpose' has not been defined in the Consumer Protection Act and as held in Laxmi Engineering Works v. P.S.G. Industrial Institute [(1995) 3 SCC 583], in the absence of a statutory definition, we have to go by its ordinary meaning. 'Commercial' denotes 'pertaining to commerce' (Chamber's Twentieth Century Dictionary); it means "connected with, or engaged in commerce; mercantile, having profit as the main aim" (Collin's English Dictionary) and the word 'commerce' means "financial transactions, especially buying and selling of merchandise on a large scale" (Concise Oxford Dictionary)".

          It would be pertinent to note that there is no evidence of the complainant having purchased and then sold any residential property.  Therefore, it would be difficult to say that he was engaged in the business of the buying and selling of the property or that villa in question was booked by him for speculative purposes.  Despite booking villa in question in the year 2009 and the opposite party having failed to deliver possession, he made no attempt to transfer the allotment of the villa to a third party.  The plot in Sector 105 of the Noida was purchased for his daughter way back on 15.10.2009.  The complainant continues to hold the said plot though almost seven years have since expired.  This clearly shows that he genuinely purchased the plot for his daughter and not for speculative purposes.  As far as apartment in Sector 96, 98 of Noida is concerned, there is no reason to disbelieve the explanation of the complainant that the said apartment was booked for the purpose of shifting from his present residence.  Moreover, no attempt was made by him to transfer the booking of the said apartment despite the builder having failed to deliver possession and this Commission vide order dated 12.10.2015, having now directed the builder to deliver possession by 31.10.2017.  I therefore, find no merit in the contention that the complainant is not a consumer as defined in Section 2(1)(d) of the Consumer Protection Act.