Anil Dutt v. Business Park Town Planners Ltd. (Bptp)

The above said four plots were allotted unilaterally, without any confirmation /consent/ approval of the complainant. The complainant was to pay a sum of Rs.54,60,000/- against the entire sale consideration of 4 plots @ Rs.10,800/- per sq. yards. The complainant again paid a sum of Rs.32,87,425/-, vide demand letter dated 12.08.2008, received from the OP. 4. However, on 13.08.2008, the complainant further demanded a sum of Rs.70,17,651/-, despite having received the payment of Rs.1,07, 87,425/- , till then. Out of the total amount of Rs.1,29,60,000/- due and payable against the four plots of 300 sq.yards each, only a sum of Rs.21,72,575/- was paid. No details were given for the said demand. Ultimately, the present complaint was filed on 31.05.2012, with the following prayers :- ) to deliver possession of all the plot Nos. S5-09, V3-02, S3-09 and W4-11, located at Parklands, Faridabad, after removing all the deformities as pointed out in the communications; b) in alternative, deliver possession of other 4 plots in favour of the complainant admeasuring 300 sq.yds each, at Parklands, Faridabad. c) Award interest on the amount lying deposited of Rs.1,07,87,425/- with interest @ 18% till the delivery of actual possession of the four plots, without any deformity. d) Award Rs.25,00,000/- towards compensation for the mental agony/harassment and inconvenience suffered by the complainant for the last over six years. e) award costs of this proceedings f) to pass such other and further order which may deem fit and proper 5. The Opposite Party contested the complaint. It has called into question the jurisdiction of this Commission. Consequently, we are bound to decide this point, first of all, as per law laid down by the Honle Apex Court in the case of .Sagar Vs.- Managing Director, Kiran Chit Fund, Mushridabad Vs. A. Bal Reddy, 2008 (7) Supreme Court Cases, 166. 6. We have heard counsel for the parties. The learned counsel for the OP vehemently argued that their lies no rub in having four plots for the whole of the family. He argued that the family consists of four people and the complainant wants to have four plots, for separate living by each of the member. The learned counsel pointed out that the Opposite party is deficient. He alleges that OP has allotted plots which were situated close to high tension wires. 7. We find it extremely difficult to countenance such contention, for the following reasons. There is a letter, dated 13.08.2008 written by the complainant himself to the Opposite Party, the relevant paras of which are reproduced, as follows : 1. In addition to above this plot has overhead high tension cables passing through which drops its total re-sale value. I personally feel that my investment/money is stuck up in this plot and which is of no use to me. 2. In addition to above this plot has overhead high tension cables passing through which drops its total re-sale value. 3. I would also like to point out that next to this plot is a village boundary wall separating village with BPTP area is a major drawback of this plot which drops its re-sale value. 8. This is also interesting to note that all the amount has been paid by the complainant. There is not even an iota of evidence which may go to show that the said amount or part of it, was paid by any other member of the family. The above said letter clearly goes to show that the above said plots were purchased for re-selling the same. Consequently, the complainant is not a onsumer as per Section 2 (1)(d)(ii), which is reproduced as follows : d) onsumermeans 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

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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, ommercial 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 9. In Chilkuri Adarsh Vs. ESS ESS VEE Constructions, III (2012) CPJ 315, it was held that this has been consistent view of this Commission. It has held that even when a consumer has booked more than one unit of residential premises; it amounts to booking of such premises for investment commercial purpose. This Commission in the case of Jagmohan Chabra and another Vs. DLF Universal Ltd., IV (2007) CPJ 199, in a somewhat similar case held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Honle Supreme Court as Civil Appeal No. 6030-6031 of 2008, filed before the Supreme Court stands dismissed vide the Apex Court order dated 29.09.2008. 10. In Bihar School Examination Board Vs. Suresh Prasad Sinha, IV (2009) CPJ 34 at 36(SC) : AIR 2010 SC 93 : JT 2009 (11) SC 541, (2009) 8 SCC 483, the Honle Apex Court, held :- onsumer Definition of :- According to the definition of onsumerin Section 2(d) of the Act, a person who hires or avails of any services for a consideration, is a consumer. The following category of service-availors will not be consumers : (i) persons who avail any service for any commercial purpose; (ii) persons who avail any free service; (iii) persons who avail any service under any contract of service. A consumer is entitled to file a complaint under the Act if there is any deficiency in service provided or rendered by the service provider 11. Again, this Commission in M/s. Harsolia Motors Vs. National Insurance Co. Ltd., in First Appeal Nos. 159, 160 & 161 OF 2004, decided on 03.12.2004, has held, as under:- n support of his submission, learned counsel Sh.Sharma, referred to the judicial dictionary meaning of the words ommercial purposewhich is as under:- he word ommercialaccording to the Oxford Dictionary means viewed as a matter of profit and loss. The word urposemeans bject which is in view or for which is made immend The word ommercial purposeswould, therefore, cover an undertaking the object of which is to make a profit out of the undertakings. (Municipal Board, Unnao Vs. The State of U.P. 1957 All. L.J. 479 at 498) ccording to Oxford dictionary, it means iewed as a matter of profit or loss he word ommercialis defined in the Concise Oxford Dictionary, New Edition of the 1990, at page 227, the word ommercialis defined as aving profit as a primary aim rather than artistic etc. value(Vide Dena Bank, Ahmednagar Vs. Prakash Birbhan Katariya, AIR 1994 Bom 343 at 345) 12. In Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583, the Honle Apex Court, held, as under : he National Commission appears to have been taking a consistent view that where a person purchases goods ith 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 onsumer 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 arge scale is not a very precise expression Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993 13. Also, see Rajasthan State Industrial Development & Investment Corporation Vs. Diksha Enterprises, III (2010) CPJ 333 (NC) and this Commission judgment in RP 1129 OF 2012, Shri Harnam Singh Vs. Shalimar Estate Pvt. Ltd. & Ors., decided on 29th May, 2012. 14. Consequently, we find that the present complaint is not maintainable. It is clear that the intention of the complainant is to re-sell the said flats. These flats were not purchased for personal use of consumer. The complaint is, therefore,

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dismissed. The complainant is at liberty to approach the appropriate forum to seek redressal of his grievance. He may take advantage of the ruling of the Supreme Court in Laxmi Engineering Works s- PSG Industrial Institute, (1995) 3 SCC 583, to seek exclusion of time spent before this Commission.

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J.M. MALIK

PRESIDING MEMBER

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DR. S.M. KANTIKAR

MEMBER

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