Shailaja Finance Ltd. Vs. Gtm Builders and Promoters Pvt. Ltd. and Another - Court Judgment

J.M. Malik, Presiding Member

1. The key question is, whether, the complainant is a consumer and falls under Section 2 (1) (d) (ii) and the Explanation appended to it?.

2. The present complaint has been filed by a company, known as Shailaja Finance Ltd., Kolkata. The Opposite Parties, GTM Builders and Promoters Pvt. Ltd. and M/s. Sargam Estates Pvt. Ltd., OPs 2 and 3, respectively, are the joint owners/developers of the land measuring 58 bighas, situated at Village Mokhampur Khurd, Paragana Parwa Doon, Dehradun, Uttaranchal. The complainant company purchased nine apartments in GTM Forests and Hills, from the OPs. The said flats were purchased by the complainant company to use them for residential purposes only, for its Directors and Staff members, and for the Directors of M/s. Radico Khaitan Limited. It is explained that the complainant is the promoter of M/s. Radico Khaitan Limited which has its office in Dehradoon. The OPs did not handover the flats to the complainant. Consequently, the present complaint has been filed with the following prayers :-

œ(i) Direct the Opposite Parties to hand over the possession of the 9 flats in Towers bearing Nos. FH-08 (Flat No. 201), FH-15 (Flat No.201), FH-17 (Flat Nos. 102, 201, 202, 203), FH-18 (Flat Nos. 102, 201, 202) immediately, in a completely ready and finished state;

(ii) Direct the Opposite Parties not to create any

third party rights and/or interests with respect to the aforementioned 9 flats;

(iii) Direct the Opposite Parties to recall their illegal demand letters dated 18.07.2012, 21.09.2012, 08.11.2012, 31.12.2012 and declare them null and void;

(iv) Direct the Opposite Parties to pay an interest at the rate of 18% per annum, compounded monthly, to the complainant pendent lite on the total amount of Rs.2,34,71,323/- paid to the opposite parties for the entire period of delay till the handing over of the flats;

(v) Direct the Opposite Parties to pay an amount of Rs.18,00,000/- (Rupees Eighteen Lakhs only) to the complainant as damages due to delay in handing over possession of the flats;

(vi) Direct the Opposite Parties to pay to the complainant the costs of the present proceedings; and

(vii) Pass such other order or further orders as this Honble Commission deems fit and proper in the facts and circumstances of the case?.

3. We have heard the learned counsel for the complainant at the stage of admission of this case. The counsel for the complainant has invited our attention towards the Board Resolution dated 13.03.2008, which runs as follows:-

œResolved further that the flats shall be utilized for residential purposes of the Directors/ Employee of the Company or its Group Companies and such other purposes and deemed suitable by the Board?.

4. We have also gone through the Agreement dated 15.05.2008, which does not mention which flat was taken and for whom. The names of the Directors are conspicuously missing.

5. The learned counsel for the complainant has cited an authority reported in Karnataka Power Transmission Corporation Vs. Ashok Iron Works Pvt. Ltd., 2009 (3) SCC 240. We are of the considered view that that authority is not applicable to this case. In that case, the cause of action had arisen on 01.02.1991 as is apparent from para 2 of the judgment.

6. The Amendment Act 1993 and 2002/03 were not brought into force till then. We are to decide this case in accordance with the law which prevails here as under. The word consumer is defined in Section 2 (1) (d) (i) and (ii), 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 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) œhires 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, œcommercial 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]

7. Counsel for the complainant has cited another authority in MostreaEstate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd., IV (2010) CPJ 299 (NC). In para No.5 of the said authority, it was held as under :-

œComplainant alleges that it has availed of the services of the opposite party for providing space in the Mall and paid Rs.33,01,740/- towards sale consideration. Even if the complainant, a private limited company is treated as a person, the purchase of space cannot be for earning its livelihood by means of self-employment within the meaning of the explanation nor such a case has been specifically pleaded in the complaint. Purchase of space was for commercial purpose. Complaint, therefore, deserves to be dismissed being not maintainable under the Act. Dismissed as such?.

8. It is, thus, clear that this authority, far from being supporting the case of the complainant, goes against the complainant company.

9. He has also cited a judgment of this Commission reported in Travel India Bureau Pvt. Ltd. Vs. HUDA and Ors., II (2008) CPJ 329 (NC). In this case too, the cause of action had arisen in the year 1991. Consequently, this authority is not applicable to this case.

10. Counsel for the complainant also cited PadmaSundara Rao (Dead) and Ors. Vs. State of T.N. and Ors., (2002) 3 SCC 533, wherein it was held that the decision of the court should be understood in the fact situation of the case.

11. First of all, for the reasons mentioned hereinwith, we clap no importance to these arguments. These arguments were relevant before the amendment of the C.P.Act, 1986. After the Apex Court passed the order in LaxmiEngineering Works vs. PSG Industrial Institute “ (1995) 3 SCC 583, the definition of consumer stood changed as per the new amendment. At para 11 of its judgment, the Honble Apex Court held as under :-

œ11. Now coming back to the definition of the expression consumer in Section 2(d), a consumer means in so far 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 promises, 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 œresale? is clear enough. Controversy has, however, arisen with respect to meaning of the expression œcommercial purpose?. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. œCommercial? denotes œpertaining to commerce? (Chambers Twentieth Century Dictionary); it means œconnected with, or engaged in commerce; mercantile; having profit as the main aim? (Collins English Dictionary) whereas the word commerce means œfinancial 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 œwith 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(1)(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion “ the expression œlarge scale? is not a very precise expression “ Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993.

12. This Commission in the case of Jag Mohan Chhabra and Anr. Vs. DLF Universal Ltd. IV (2007) CPJ 199 (NC), held, as under :-

œin a somewhat similar case, had held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed of the complaint with liberty to the complainant to approach Civil Court.

13. A Special Leave Petition (Civil) Appeal Nos.6030-6031 of 2008 was filed before the Honble Supreme Court against the above said order. The Honble Supreme Court upheld the order of this Commission and dismissed the SLP vide its order dated 29.09.2008.

14. In M/s.Purusharath Associates Pvt. Ltd. Vs. M/s. Uppal Housing Ltd. and Anr., Consumer Complaint No.112 of 2012, decided by National Commission, on 05.07.2012, it was held that :

œLearned 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.

15. Against the said order of this Commission, Special Leave Petition (Civil Appeal Nos.8990-8991 of 2012, M/s. Purusharath Associates Pvt. Ltd. Vs. M/s. Uppal Housing Ltd. Plaza and Anr.) was filed before the Honble Supreme Court. The Honble Apex Court dismissed the said Special Leave Petition, vide order dated 07.01.13.

16. In SatishKumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India) Ltd., and Anr., Consumer Complaint No.296 of 2011, decided by this Commission, on 03.07.2012, the business of the complainant extended upto Mumbai. In order to save on the expenditure incurred on his stay, in hotels, at Mumbai, during his business trips, he was interested in buying some flats in Mumbai. He took two flats. It was held,

œClearly, the transaction is relatable to his business activity and, therefore, it will fall in the category of commercial purpose, which has been taken out of the purview of the Consumer Protection Act, 1986, vide Amendment Act No.62 of 2002, effective from 15^th of March, 2003.

17. Against the said order of this Commission, Special Leave Petition (Civil Appeal No. 6229 of 2012, Satish Kumar Gajanand Gupta Vs. Srushti Sangam Enterprises (I) Ltd and Anr.) was filed before the Honble Supreme Court. The Honble Apex Court dismissed the said Special Leave Petition, vide order dated 14.09.2012.

18. In view of the above, we dismiss the instant complaint at the time of admission, with no order as to costs. However, there lies no rub for the complainant to seek remedy before any other appropriate forum or civil court as per law.