1. This appeal is directed against the order of the West Bengal State Consumer Disputes Redressal Commission, Commission, Kolkata (hereinafter referred to as “the State Commission) dated 02.12.2019 in CC/149/2018.
2. Case of the Complainants is that by way of a tripartite agreement of nomination dated 12th December, 2011, Pallak Fashion Pvt. Ltd. nominated the Appellants/Complainants for one unit measuring 506.83 sq. ft. super built up area in tower “Prakiti Plaza” at Godrej Prakiti, Kolkata. The due date of possession of unit was 28th February, 2013. Though the Appellants paid Rs.13,18,697/-, about 77% of the total cost of the flat by 28th February, 2013, the Respondents failed to hand over the unit within the time stipulated. Rest of the payment due was made by the Appellants and got the conveyance deed registered on 9th October, 2017. For taking possession of the unit, Respondent No.1 insisted on signing of a waiver clause to compensate for delay in giving possession. Aggrieved by this action of the Respondents, the Appellants preferred Complaint before the State Commission praying the following reliefs:-
i. An order directing the opposite parties to handover vacant and peaceful possession of the said unit in favour of the complainants;
ii. An order directing the opposite parties to compensate the complainants with payment of interest for delayed delivery of possession of the residential unit No.01 on the ground floor of the complex known as “GODREJ PRAKRITI” lying and situated at the municipal holding no.187F/1, B.T. Road, Kolkata 700115 for the period from 1st March, 2013 to 31st March, 2017 @ 9% per annum amounting to Rs.4,74,730/- alongwtih further interest on Rs.4,74,730/- for the period from 10th October, 2017 till the actual date of payment @ 18% per annum;
iii. An order directing the opposite parties to provide the complainants water connection to the said unit, completion certificate, electricity supply at the said unit and provide each and every common facility and amenity in terms of the deed of conveyance dated 9th October, 2017 read with the agreement for sale dated 13th June, 2011 and in accordance with the promises and assurances given by the opposite parties at the time of publicity of the project and invitation for booking of the said unit;
iv. An order directing the opposite parties to pay Rs.5,00,000/- (Rs. Five Lakhs only) as compensation to complainants for deficiency of service and negligence on the part of the opposite parties in not providing the facilities and amenities and completion certificate as detailed in prayer (c) above immediately upon execution of the deed of conveyance dated 9th October, 2017 read with the agreement for sale dated 13th June, 2011 and in accordance with the promises and assurances given by the opposite parties at the time of publicity of the project and invitation for booking of the said unit;
v. An order directing the opposite parties to pay Rs.3,00,000/- (Rs. Three Lakhs only) as compensation to complainants for causing mental harassment and agony;
vi. An order directing the opposite parties to pay a sum of Rs.1,00,000/- (Rupees One Lakh only) for legal expenses and other incidental costs;
vii. An ad-interim order in terms of prayer (a) above;
viii. Such other and/or further orders(s)/directions as this Hon’ble Commission may deem fit and proper.
3. After hearing the case, alongwith all the interlocutory applications, the State Commission dismissed the Complaint allowing IA/919/2018 and IA/1131/2019 finding that the Appellants/Complainants were not consumers in terms of Section 2 (1) (d) of the Consumer Protection Act, 1986.
4. Heard the Learned Counsel for the Appellants and also carefully perused the record. The Complainants have booked one unit measuring 506.83 sq. ft. super built up area in tower “Prakiti Plaza” in the complex Godrej Prakiti, Kolkata. Conveyance deed was also executed by Opposite Party No.1 in favour of the Complainants but for want of certain conditionalities attached for delivery of possession, the Appellants/Complainants filed a Complaint before the State Commission.
5. The Opposite Parties contended before the State Commission that the Complainants purchased the unit in question for commercial purpose and therefore could not be termed as “Consumer” within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986. The Counsel for the Complainants could not give satisfactory explanation denying the contention of the Opposite Parties. No averment was made before the State Commission that the Complaints intended to purchase the commercial space for earning livelihood by means of self-employment. As the Appellants/Complainants failed to prove that they had purchased the space for the purpose of earning livelihood by means of self-employment, the State Commission held that the Complainants cannot be categorized as “Consumers” and thereby allowed IA/919/2018 and IA/1131/2019 and rejected the Complaint as not maintainable.
6. During the course of arguments, the Learned Counsel for the Appellants could not also provide any plausible explanation as to how they are covered by the definition of Consumer as provided in the Consumer Protection Act, 1986. Section 2 (1) (d) of the Consumer Protection Act, 1986 defines a consumer as under:-
(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) 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 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 purposes;
Explanation.— For the purposes of this clause, “commercial 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;
7. The Appellants are father and son. Learned Counsel for the Appellant stated that the father is a retired person and the son works in Tata Consulta
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ncy Services. No proof or evidence could be furnished of their being engaged in any business or profession where the space could be used for self-employment and earning their livelihood. In the absence of any record/evidence to prove that the commercial space was purchased for earning livelihood by means of self-employment, the Complainants cannot seek refuge under the explanation provided under Section 2 (1) (d) of the Act. 8. In view of the above, I find no illegality or infirmity in the order passed by the State Commission. The Complainants not being Consumers under the Consumer Protection Act, 1986, the State Commission had rightly rejected the Complaint as being not maintainable. In the result, the Appeal is dismissed in limine as not maintainable.