Niti Dixit vs Imperia Structures LTD

V.K. Jain, Presiding Member

IA/19153/2019 (C/delay)

Heard. For the reasons stated in the application, the delay of 10 days in filing the appeal is condoned. The application stands disposed of.

FA/2303/2019

The complainant / appellant who is a practicing as an advocate applied to the respondent for allotment of an office space and an office suite (virtual space) in a project which the respondent was to develop in Greater Noida and the said spacers were allotted to him. The said units were intended to be used by the complainant / appellant for his office. Separate agreements in respect of the aforesaid units were executed between the parties on 24.2.2012 and the case of the complainant / appellant is that the possession was to be delivered by April, 2016. The possession having not been delivered, the complainant / appellant approached the concerned State Commission by way of a consumer complaint seeking refund of the amount which he had paid to the respondent alongwith compensation. The State Commission vide impugned order dated 11.9.2019 dismissed the consumer complaint in limine without notice to the respondent primarily on the grounds that (i) two separate complaints ought to have been filed since two units were booked by the complainant and (ii) the complainant was not a consumer within the meaning of Section 2(1)(d) of the C.P. Act.

The term 'consumer' has been defined in Section 2(1)(d) of the Consumer Protection Act, which to the extent it is relevant for the purpose of this petition means a person who buys goods or hires or avails services for consideration but does not include a person who obtains goods for resale or who purchases goods or avails services for any commercial purpose. As per the explanation, inserted with effect from 15.3.2003, for the purpose of the above referred clause, commercial purpose does not include use of the goods or services exclusively for the purpose of the earning livelihood by means of self-employment.

Recently a three-Members Bench of this Commission in RP No.2833 of 2018 Tosoh India Pvt. Ltd. (Formerly LILAC Medicare pvt. Ltd.) Vs. Ram Kumar & Ors. decided on 6.1.2020 had an occasion to examine the question involved in this appeal and interalia held as under:-

"(a) Only a person engaged in large scale commercial activities for the purpose of making profit is not a consumer;

(c) What is crucial for the purpose of determining whether a person is a 'consumer' or not is the purpose for which the goods were purchased or the services were hired or availed and not the scale of his commercial activities.

(d) The explanation below Section 2(1)(d) of the Consumer Protection Act is clarificatory in nature.

(e) A person purchasing goods or hiring or availing services for a consideration, for the purpose of earning his livelihood by way of self-employment is a 'consumer' within the meaning of Section 2(1)(d) of the Consumer Protection Act.

(f) It is not necessary that a person should be working alone in the commercial activity undertaken by him for earning his livelihood and his family members and / or a few employees can assist him in his commercial venture. Such assistance by his family members or by a few employees engaged by him does not convert his business or profession into a commercial activity on a large scale, for the purpose of making profit and therefore, does not exclude him from the purview of the term 'consumer'."

The complainant. as noted earlier, is an advocate by profession. He had specifically alleged in Para 1 of the consumer complaint that the premises were booked by her for being used as office. An advocate earn his livelihood by working in the premises which he either purchases or takes on rent/licence. Therefore, when an advocate claims that the said premises was intended to be used as his office, it can be safely construed to mean that he intended to earn his livelihood by way of self-employment since he would be working in the office which he purchases or takes on rent as the case may be. An advocate can also acquire more than one office spaces for the purpose of earning his livelihood, so long as he does not enlarge his professional activity to a commercial level. It would be difficult to say that an advocate taking two different units for being used as his office necessarily acquires them for a commercial purpose. Whether the premises are acquired for a commercial purpose or not would depend upon several factors indicating the size of the premises, the number of advocates and staff members working with the advocate concerned and his total receipts from the professional activities. Mere acquisition of two commercial spaces would not justify inference of large-scale commercial activities by an advocate.

In the present case, the office premises are not large, one of them measuring only 500 sq.ft. and the other measuring 300 sq.ft. which by itself does not justify inference of large-scale professional activities. In any case, the complainant needs to be given an opportunity to establish, by leading evidence during the hearing of the complaint, that despite he having booked two office places, he was not engaged in large-scale commercial activity and intended to use both the office spaces for the purpose of earning his livelihood by way of self-employment.

As far as the second reason given by the State Commission for dismissing the complaint is concerned, the view taken by the State Commission cannot be upheld considering the order dated 9.4.2018 passed by the Hon'ble Supreme Court in Civil Appeal no.2610 of 2018 - Manisha Manjit Singh Vs. Pune Kondhwa Reality Pvt. Ltd. & Anr.

For the reasons stated hereinabove, the impugned order is set aside and the matter is remitted back to the State Commission for proceeding with the consumer complaint in accordance with law.

The appellant/complainant shall appear before the State Commission on 24.2.2020. The appeal stands disposed of.