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TMI Blog2023 (9) TMI 1569X X X X Extracts X X X X X X X X Extracts X X X X ..... on a large scale for the purpose of earning profit. Thus, persons buying goods either for resale or for use in large scale profit making activity will not be a consumer entitled to protection under the Act, which would be a plain interpretation of this definition clause. The intention of the Parliament as can be gathered from the definition Section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit making activity engaged on a large scale. This Court in the case of LILAVATI KIRTILAL MEHTA MEDICAL TRUST VERSUS M/S. UNIQUE SHANTI DEVELOPERS ORS. [ 2019 (11) TMI 1824 - SUPREME COURT] , has held that a straight jacket formula cannot be adopted in every case and the broad principles which can be curled out for determining whether an activity or transaction is for a commercial purpose would depend on facts and circumstances of each case. Thus, if the dominant purpose of purchasing the goods or services is for a profit motive and this fact is evident from record, such purchaser would not fall within the four corners of the definition of 'consumer'. Clause 15 of the buyer's agreement would clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Alok Tripathi, AOR JUDGMENT ARAVIND KUMAR, J. 1. The interpretation of the word and expression Commercial Purpose defined Under Section 2(1)(d) of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act' for the sake of brevity) is the pivotal issue in this appeal. FACTUAL MATRIX 2. The Appellants intended to purchase a commercial space in the project called 'Vipul World Commercial' situated at Gurugram, Haryana, promoted by the Respondent. After having come to know that Mrs. Bindu Rawlley and Mr. Talwinder Singh intended to sell their shares in office unit No. 306 on the third floor in the aforesaid commercial complex allotted to them by the Respondent, Appellants agreed to purchase the same and accordingly made payment of entire agreed amount to their vendors. Recognizing the said transfer, the names of the Appellants came to be recorded by the Respondent in substitution to the names of the vendors of Appellants. The customer code allotted to the original allotees was continued in the name of the Appellants. It was agreed between the Appellants and their vendors that Appellants would pay a sum of Rs. 18,07,100 to the original allotees and the bal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al agony. The Commission by impugned order dated 11.05.2015, dismissed the complaint in limine on the ground of maintainability holding that Appellants are not 'consumers' as defined Under Section 2(1)(d) of the Act as Appellants were already carrying on business for the purposes of their livelihood and therefore, it cannot be said that the property which was the subject matter of the complaint before the Commission was being purchased by them exclusively for the purposes of earning livelihood by way of self-employment. The Commission also opined that Commercial space booked by the Appellants was for earning profit and not for the purpose of earning livelihood by way of self-employment by relying upon the statement of first Appellant recorded by the Commission. Hence the appeal. 6. We have heard the arguments of Shri Digendra Sharma, Mr. Ajay Kumar Singh, Mr. Anubhav Bhandari and Mr. Niharika Dubey, learned Counsel appearing for the Appellants and Mr. M.R. Shamshad, Mr. Atul Sharma, Mr. Ankur Sharma and Mr. Alok Tripathi, learned Counsel appearing for the Respondent. 7. It is the contention of the learned Counsel appearing for the Appellants that the Commission had erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants for the purpose of earning their livelihood by self-employment and as such, the order of dismissal would not call for interference. He would elaborate his submissions by contending that Appellants are already engaged in the business and the Act would exclude those persons who avail services for commercial purposes and the office space was not purchased by the Appellants exclusively for the purpose of earning livelihood; the complaint does not disclose any cause of action and it also ought to have been dismissed for suppression of fact namely the Appellants having defaulted in the payments. Accordingly, he has sought for dismissal of the appeal. DISCUSSION AND OUR FINDINGS: 9. The National Commission at the outset considered the question as to whether the Appellants are Consumer and answered in the negative. It has been held that Appellants would not be entitled to seek redressal of their grievance under the provisions of the Act. On the basis of the statement of the complainant made before it, the Commission has arrived at a conclusion that complainant No. 1 was running a dealership business of M/s. Reliance Industries for their livelihood and they are also engaged in the busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplant 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-to-business disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 self-employment 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 auto-rickshaw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or otherwise from a shop, business house, corporation, store, fair price shop to use of private or public services. In Oxford Dictionary a consumer is defined as, 'a purchaser of goods or services'. In Black's Law Dictionary it is explained to mean, 'one who consumes. Individuals who purchase, use, maintain, and dispose of products and services. A member of that broad class of people who are affected by pricing policies, financing practices, quality of goods and services, credit reporting, debt collection, and other trade practices for which State and Federal Consumer Protection Laws are enacted.' The Act opts for no less wider definition. It reads as under: 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 purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11. A plain reading of the expression consumer indicates that any person who buys any goods for consideration which has been paid or promised or partly paid and partly promised under any system of deferred payment and includes any user of such goods other than the person who buy such goods. 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 or services for resale or for any commercial purpose. It is amply clear from the above definition that the Parliament has excluded from the scope of 'Consumer' for igniting proceedings under the Act, a person who obtains goods or services for re-sale or for any commercial purpose. 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. The words 'for any commercial purpose' must be under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Developers (supra), has held that a straight jacket formula cannot be adopted in every case and the broad principles which can be curled out for determining whether an activity or transaction is for a commercial purpose would depend on facts and circumstances of each case. Thus, if the dominant purpose of purchasing the goods or services is for a profit motive and this fact is evident from record, such purchaser would not fall within the four corners of the definition of 'consumer'. On the other hand, if the answer is in the negative, namely if such person purchases the goods or services is not for any commercial purpose and for one's own use, it cannot be gainsaid even in such circumstances the transaction would be for a commercial purpose attributing profit motive and thereby excluding such person from the definition of 'consumer'. When there is an assertion in the complaint filed before the Consumer Court or Commission that such goods are purchased for earning livelihood, such complaint cannot be nipped at the bud and dismissed. Evidence tendered by parties will have to be evaluated on the basis of pleadings and thereafter conclusion be arrived at. Primarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and the relevant averment has been noticed hereinabove and at the cost of repetition when perused it would clearly indicate that when the Appellants were in search of office space for their self-employment and to run their business and earn their livelihood they had entered into an agreement to purchase the same from the original allotees. Neither this plea nor the statement made on oath recorded by the Commission would belie the stand of the Appellants that they intended to purchase the office space for their livelihood. In this scenario, the finding recorded by the Commission in Paragraph 8 of impugned order is erroneous and contrary to the definition Clause of the expression consumer as defined Under Section 2(1)(d). 14. It is an undisputed fact that Respondent has agreed to sell the office space in the Vipul Business Park to the Appellants. Record would also disclose that in all the Appellants paid Rs. 51,10,117/- or Respondent had received the said amount from the Appellants. Though, a faint attempt has been made by the Appellants to contend that there was unilateral change namely the Respondent had agreed to sell the office space 306 at third floor to office space No. 814 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a sum of Rs. 51,10,117/- which is also admitted by the Respondent in its counter affidavit but contending that instalments which was due and payable had not been remitted on time and as such interest is payable on the delayed payments. However, the receipt of the amount of Rs. 51,10,117/- is not disputed by Respondent. There being no plea with regard to the building or commercial complex being ready for being occupied, having been raised by the Respondent in its counter affidavit and the communication dated 25.01.2016 also not disclosing that the office premises proposed to be sold in favour of the Appellants being ready to be occupied but only evidencing the fact that the permissive possession of premises was being offered, it cannot be presumed that possession of office premises which is ready to offer was being delivered to the Appellants. Hence, to balance the equities, it would be appropriate to direct the Respondent to refund the amount it has received from Appellants with interest calculated @ 12% per annum which would not only meet the ends of justice but would also offset the interest loss if at all, if any caused to the Respondent on account of delayed payments of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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