HON'BLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER

1. The complainant booked with the opposite party, on 13.12.2005, three offices in the 6 th floor of a building Pranik Chambers, which the opposite party was planning to construct, making three payments, one of Rs. 62,76,900/- and two payments of Rs. 64,05,000/- each. The above referred office spaces were to be delivered to the complainant latest by June 2007. Since possession of the aforesaid offices was not delivered to the complainant even till March 2008, he preferred this complaint seeking direction to the opposite party to deliver possession of the aforesaid offices alongwith interest, compensation and the cost of litigation.

2. The complaint has been opposed by the opposite party inter-alia on the ground that the complainant is not a consumer as defined in the Consumer Protection Act, he being an investor and financer.

3. During pendency of this complaint, the complainant Shri Ashok Thapar sought an opportunity to amend the complaint so as to plead that the aforesaid offices were intended for his personal use. Vide order dated 07.04.2008, this Commission declined the aforesaid prayer of the complainant and dismissed the complaint, holding that the premises having been booked for commercial purpose, the complainant was not a consumer within the meaning of the Consumer Protection Act.

4. Being aggrieved from the order passed by this Commission, the complainant approached the Honble Supreme Court by way of an appeal. Vide order dated 11.05.2009, the Honble Supreme Court allowed the said appeal and remitted the matter back to this Commission with a direction to give an opportunity to the complainant to amend the complaint. In terms of the aforesaid liberty granted by the Honble Supreme Court, the complainant amended the complaint and alleged, in the amended complaint, that three office spaces were purchased by him for personal use and would be used by him exclusively for the purpose of earning his livelihood by means of self-employment and he does not wish to dispose of the same to a third party.

5. Section 2(1)(d) of the Consumer Protection Act, to the extent it is relevant, provides that consumer does not include a person who obtains goods or hires services for any commercial purpose. The explanation attached below the aforesaid provision excludes from the ambit of the term commercial purpose, use by a person of the goods bought and used by him and the services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.

6. In the context of the services of housing construction, the explanation comes into play if the following conditions are fulfilled:

(i) The complainant buys the property exclusively for the purpose of earning his livelihood and (ii) He employs himself i.e. he is personally engaged in the activity which is carried on in the aforesaid property. Unless both these requirements stand fulfilled, the explanation does not come into play and the complainant cannot be said to be a consumer as defined in the Consumer Protection Act, 1986. In our opinion, if a person is already having income through an activity other than the activity which he proposes to undertake in the property purchased by him, he would not be a consumer since in such a case, it cannot be said that the property was purchased by him for the purpose of earning his livelihood, he already having income from other activities. If a person already owns a commercial property, such a person will not be a consumer as defined in the Act since in such a case, it cannot be said that the property is purchased by him for the purpose of earning his livelihood, he being already in possession of a premises which he is using or can use for earning his livelihood. If a person is not personally engaged in the activity which is carried in the said property, he will not be a consumer as defined in the Act because that will not be a case of self-employment which is a necessary requirement for attracting applicability of the explanation attached to Section 2(1)(d) of the Consumer Protection Act. For instance, if a person is already engaged in business in a premises owned by him and he purchases yet another property for carrying a different or even the same business, he will not be a consumer as defined in the Act. If a professional such as a Doctor, a Chartered Accountant or an Advocate already owns a premises where he is undertaking his professional activity, he will not be a consumer as defined in the Act, if he purchases yet another property for undertaking the same or a different professional activity. On the other hand, if a person carrying a business or engaged in a profession does not own any commercial premises and buys a commercial premises for carrying the same activity, he would be a consumer as defined in the Act provided he is personal engaged in the business or profession which is carried in the said premises, and that business or profession is the only source of his livelihood. A Doctor, Architect, Advocate or a Chartered Accountant who does not own any commercial space, would therefore, be a consumer if he purchases such a space and personally undertakes the same professional activity therein. If however, he already owns an office space and buys another office space, he will not be a consumer as defined in the Act. To take yet another example, if a person employed in a service, purchases a commercial property for the purpose of earning his livelihood after his retirement by starting his own business or profession in the said commercial property, he would be a consumer as defined in the Act since the activity which he would be carrying in the said commercial property would be the only source of his livelihood after his retirement from service.

7. If a person does not own a commercial space but is otherwise earning and he purchases a commercial space for carrying an activity different from the activity which is the source of his existing income, he will not be a consumer as defined in the Act since in such a case, it cannot be said that the proposed commercial property will be exclusively for the purpose of earning his livelihood, his sustenance not being dependent upon the new activity which he seeks to carry in the premises in question. That would be the position even if such a person is to get personally engaged in the activity which he is planning to start in the subject premises.

8. When this matter came up for hearing on 24.08.2015, we directed the complainant to file an affidavit disclosing therein the following information:

(i) In which business/profession/vocation, the complainant was engaged at the time of booking the flats in question and since when he was engaged in such a business/profession/vocation.

(ii) What was the income of the complainant in the financial year 2003-2004, 2004-2005 and 2005-2006.

(iii) What were the commercial premises, if any, owned or occupied by the complainant in any capacity whatsoever, at the time the flats in question were booked as well as at the time this complaint was filed. On perusing the affidavit filed by the complainant in terms of our above referred direction, we found that it did not strictly comply with the said order. Therefore, vide order dated 07.09.2015, we directed him to file a supplementary affidavit disclosing therein the following information: Whether he owned or occupied any commercial property anywhere in the country at the time the flats in question were booked or at the time this complaint was filed.

ii. Whether any firm in which the complainant was a partner at the relevant time or any company in which he was a Director at the relevant time owned or occupied any commercial property anywhere in the country at the time the flats in question were booked or at the time this complaint was filed.

(iii) Whether the HUF of which the complainant was a Member, owner or occupied any property other than first floor of Luxmi Commercial Complex, Bombay and Shop No. 77, WTC, Bombay, at the time the flats were booked or at the time this complaint was filed. The complainant has filed another affidavit in compliance of the direction given by us. On a conjoint reading of the affidavits filed by the complainant, we find that the complainant has been in the business of real estate since 1976 and his income in the years 2003-04 to 2005-06 was Rs. 2,63,600/-, Rs. 1,65,605/- & Rs. 7,80,203/- respectively. The complainant owned two commercial properties in Mumbai which he gave to the HUF of his father, of which he is a member, in the year 1989 so that the same could be used for the benefit of his children. One of those properties is on long lease with LIC and the other one was sold out in the year 2011. The affidavits further show that though the complainant does not personally own any commercial property anywhere in the country, he was Director in as many as three companies namely Thapar Properties Pvt. Ltd., Regency Properties Pvt. Ltd. and Rajdhani Properties Pvt. Ltd. which are operating from his residence. It would thus be seen that though neither the complainant nor any company in which he is Director, owns a commercial property, the complainant had sufficient income at the time flats in question were booked by him with the opposite party. Since the complainant was already having sufficient income at the time commercial flats in question were booked by him, it cannot be said that he had booked the aforesaid flats exclusively for the purpose of earning his livelihood. The very fact that the complainant was having sufficient income at the relevant time by itself rules out acquisition of these flats for the purpose of earning his livelihood. Since the complainant was seeking to use these three commercial flats as his personal office, it appears that the activity which he was seeking to carry in the aforesaid commercial flats would have been different from the activity from which he was having substantial income at the time the flats in question were booked by him. This is not his case that he will carry, in the office spaces booked by him, the same activity, which was the source of his income at the time of booking. Therefore, in our opinion, the complainant cannot be said to be a consumer as defined in Section 2(1)(d) of the Consumer Protection Act.

9. Since the complainant is not a consumer as defined in the Act, this Commission lacks jurisdiction to entertain the complaint. Consequently, the complaint is dismissed with no order as to cost. It is further made clear that dismissal of the complaint will not come in the way of the complainant approaching a Court or Forum other than a Consumer Forum for the redressal of his grievances. In case the complainant decides to approach the concerned Civil Court for the redressal of its grievances, he shall also be entitled to seek benefit of the provisions contained in Section 14 of the Limitation Act, if such a benefit is otherwise admissible to him in law. ......................J

V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER