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M/s. M.N.R. Exports Pvt. Ltd. v/s M/s. Shree Niwas Cotton Mills & Others

    Consumer Case No. 2677 of 2018

    Decided On, 11 February 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE R.K. AGRAWAL
    By, PRESIDENT

    For the Complainant: Md. Quddus, Advocate. For the Opposite Parties: --------



Judgment Text


The present Complaint has been filed by one M/s M.N.R. Exports Pvt. Ltd., a Registered Company incorporated under the Companies Act, 1956 and is represented by its Authorized Director Mr.Nilesh Doshi. It is a 100% Export Oriented Unit engaged in the business of Manufacturing and Exporting of Hand-Crafted Textile Products. M/s Shreeniwas Cotton Mills (arrayed as Opposite Party No.1) and M/s Kidderpore Holdings Ltd. (arrayed as Opposite Party No.2) are carrying on business of construction and sale of Buildings. The Opposite Party No.1 as Promoter and Opposite Party No.2 as Builder announced an I.T. project, named, “Lodha Supermus” at Senapati Bapat Marg, Opp. Kamala Mill, Lower Parel, Delisle Road, Mumbai – 400013, whereupon the Complainant booked one Office Commercial Space admeasuring 782 sq.ft. carpet area in the said Project being unit No.1505 on the 15th floor of “Lodha Supremus”. It appears that the Project did not materialize except handing over symbolic possession, whereupon the Complainant has filed the present Complaint claiming the following reliefs :

1. That the decree be passed by your Lordship directing thereby the Opposite Parties/defendants to hand over the physical lawful possession in respect of the Office Space being Unit No.1505, as specified in the Agreement for Sale duly executed on 29th August 2011;

2. A decree be passed by your Lordship, directing the Opposite Parties/Defendants to execute the Registered Deed of Conveyance in favour of the Plaintiff;

3. A decree be passed by your Lordship directing the Opposite Parties/Defendants to settle the account of Claims and Demands of the Plaintiff by the Defendant to compensate the Plaintiff against the Interest paid by the Plaintiff, for the delayed period of 5 years, at the simple rate of interest @ 18% per annum on the sum of Rs.1,83,51,000/- (One Crore, Eighty Three Lakhs, Fifty One Thousand only) paid to the Defendants which stands to Rs.1,65,15,900/- till 30th September 2018, and interest accruing there-upon till date;

4. A decree be passed by your Lordship directing the Opposite Parties/Defendants to settle the accounts of claims and demands of the Plaintiff against the Business Opportunity Loss due to delay of 5 years in handing over the possession of the said Office Space amounting to Rs.1,50,00,000/- (One Crore, Fifty Lacs only), calculated till 30th September 2018 and the simple interest at the rate of 18% per annum accruing thereupon till date;

5. A decree for permanent injunction calling upon the Respondents/Opposite Parties and their men, agents or servants to show cause as to why an order of injunction should not be granted to the Plaintiff, restraining the respondents/Opposite Parties, their men, agents or servants not to stop and/or disallow and/or obstruct the Plaintiff, their men, agents or servants from entering the said office shop room being Unit No.1505 and/or restraining the Defendants, their men, agents or servants from encumbering and/or obstructing and/or trespassing and/or alienating the scheduled Unit No.1505 at “LODHA SUPREMUS” after hearing the parties;

6. Cause shown if there be any, make the order absolute and pending till the disposal of the order and/or make an interim order on the same terms and conditions as stated therein above;

7. < >< >

Damage and mesne profits

8. Costs inclusive of Advocate Fees

9. And to pass such further relief or reliefs as your Lordship may deem fit and proper.

Mr.Mohammad Quddus, learned Counsel for the Complainant submitted that as the construction has not yet been completed, the Complainant is entitled for the reliefs claimed. On a query being made as to how the Complainant can be said to be a “Consumer” under the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”), learned Counsel for the Complainant invited my attention to Para-6 of the Complaint, which reads as follows :

“That Mr.Nilesh Doshi the Authorised Director of the Plaintiff Company has two sons and they were studying Business Management at Mumbai and showed their keen interest to establish I.T. business as a new branch of the Plaintiff Company at Mumbai. He being father of the two enterprising sons visited the stall of the defendants and made enquiry about the said project. There he met one Mr.Abhinandan Lodha and Mr.Abhishek Lodha both claiming to be the directors of the defendant companies, who gave a glowing presentation about the said project. The value additions, premium amenities and facilities appearing in the advertisements impressed the Plaintiff and he believed the promises and commitment of the defendants’ representation at Kolkata and in good faith the plaintiff decided to purchase one commercial office space ad-measuring about 782 sq.ft. of carpet area in the said I.T. Park being Unit No.1505 on the 15th floor of “LODHA SUPREMUS”.”

and submitted that the Office Space was booked for establishing the I.T. business as a new branch of the Complainant at Mumbai and therefore, it will fall under Section 2(o) of the Act, which includes “housing construction” also. With respect to as to whether the Complainant would be a “Consumer” or not under Section 2(d) of the Act, the submission was that as the Complainant had booked an office space, which falls under the definition of the word “service” as given in Section 2(o) of the Act, it will be a “Consumer” and entitled for filing the Complaint as under Section 2(m), which defines persons, an inclusive definition has been given and therefore, a Corporate entity would come under the word “person”.

I have given my serious consideration to the submissions made by learned Counsel for the Complainant. In order to decide as to whether the Complainant can be treated as a Consumer under the Act so as to enable it to file the present Complaint, it would be appropriate to reproduce the relevant Statutory Provisions, namely, Sections 2(b), 2(c), 2(d), 2(m), 2(o) and 12 of the Act.

2. Definitions. - (1) In this Act, unless the context otherwise requires,—

(b) "Complainant" means—

(i) a consumer; or

(ii) any voluntary consumer association registered under the Companies Act, 1956 (1of 1956)or under any other law for the time being in force; or

(iii) the Central Government or any State Government,

(iv) one or more consumers, where there are numerous consumers having the same interest;

(v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint;

(c) "Complaint" means any allegation in writing made by a complainant that—

(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;

(ii) the goods bought by him or agreed to be bought by him; suffer from one or more defects;

(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;

(iv) a trader or service provider, as the case may be, has charged for the goods or for the service mentioned in the complaint a price in excess of the price –

(a) fixed by or under any law for the time being in force

(b) displayed on the goods or any package containing such goods ;

(c) displayed on the price list exhibited by him by or under any law for the time being in force;

(d) agreed between the parties;

(v) goods which will be hazardous to life and safety when used or being offered for sale to the public,--

(A) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;

(B) if the trader could have known with due diligence that the goods so offered are unsafe to the public;

(vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety;”;

(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;

(m) "Person" includes,—

(i) a firm whether registered or not;

(ii) a Hindu undivided family;

(iii) a co-operative society;

(iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;

(o) "Service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

12. Manner in which complaint shall be made.—(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by –

(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;

(b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;

(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or

(d) the Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.

(2) Every complaint filed under sub-section (1) shall be accompanied with such amount of fee and payable in such manner as may be prescribed.

(3) On receipt of a complaint made under sub-section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected:

Provided that a complaint shall not be rejected under this section unless an opportunity of being heard has been given to the complainant:

Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was received.

(4) Where a complaint is allowed to be proceeded with under sub-section (3), the District Forum may proceed with the complaint in the manner provided under this Act:

Provided that where a complaint has been admitted by the District Forum, it shall not be transferred to any other court or tribunal or any authority set up by or under any other law for the time being in force.

Explanation. - For the purpose of this section “recognised consumer association” means any voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force”.

From a reading of the aforesaid Statutory Provisions, it is clear that under Section 2(b) of the Act, five categories of “persons” have been defined as Complainants, namely, Consumer, any Voluntary Consumer Association registered under the Companies Act, 1956 or under any other law for the time being in force, the Central Government or any State Government or one or more consumers where there are numerous consumers having the same interest and the legal heir or representative of a deceased consumer.

Section 2(c) defines “Complaint” to make any allegation in writing made by the Complainant.

Section 2(d) deals with the term “Consumer” and excludes a person, who obtains such goods for resale for any commercial purpose, as also a person who avails such services for any commercial purpose.

The Explanation, which was inserted by Act 62 of 2002 w.e.f. 15.3.2003, explains the phrase “commercial purpose” to 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. Section 2(m) defines the word “person”. It is an inclusive definition and includes a firm, whether registered or not, a Hindu Undivided Family (HUF), a cooperative society and every other Association of persons, whether registered under the Societies Registration Act, 1860 or not. Therefore, any individual, a Private Limited Company and Public Limited Company would be covered under the term “person” as defined under Section 2(m) of the Act. Section 2(o) defines “services” to include Housing Construction also. Section 12 of the Act provides for the manner in which a Complaint can be made by the category of persons given under Sub-section (a) to (d). They are the Complainants as defined under Section 2(b) of the Act.

Thus it is clear that in order to bring a Complaint under the four corners of the Act, the person should be a “Consumer”, if it is not a Voluntary Consumer Association, the Central Government or any State Government. In order to become a “Consumer”, it is imperative that the goods or the

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services should not be for any commercial purpose and under the Explanation to Section 2(d) of the Act, if the goods bought and used by a person and/or services availed by it are exclusively for the purpose of earning its livelihood by means of self-employment then even though the person may be having commercial use of the goods bought or services availed, it will not be treated as commercial purpose under Section 2(d) of the Act. The present Complaint has to be considered in the light of the principles enumerated above, specially Section 2(d) and Section 12 of the Act. Here, according to Para-6 of the Complaint already reproduced above, the Office Premises has been booked by the Complainant, which is a distinct juristic personality for establishing I.T. new branch in order to settle two sons of its Director Nilesh Doshi. It cannot be presumed that it is for self-employment of the Complainant. It is a Private Limited Company. Such Companies work for earning profit for its share-holders and not for settling or earning livelihood of the children of the Directors. It may give Dividend or give Bonus Shares or may distribute the profits in cash. By no stretch of imagination, It can be said that it is engaged for the purpose of earning the livelihood of the shareholders and therefore, in the facts and circumstances of the present case, the Complainant cannot be said to be a Consumer under Section 2(d) of the Act. In view of the foregoing discussions, I am of the considered view that the present Complaint filed by M/s M.N.R. Exports Pvt. Ltd. is not maintainable and is, therefore, dismissed.
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