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M/s. Shanon Restaurant & Resorts Pvt. Ltd. v/s Emaar MGF Land Ltd.

    Consumer Case No. 1867 of 2016

    Decided On, 01 December 2016

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE AJIT BHARIHOKE
    By, PRESIDING MEMBER & THE HONOURABLE DR. S.M. KANTIKAR
    By, MEMBER

    For the Complainant: Jitendra Choudhary, Advocate. For the Opposite Parties: -----------



Judgment Text

Shorn off unnecessary details, instant complaint has been filed by M/s Shanon Restaurant & Resorts Pvt. Ltd. against the developer EMAAR MGF Land Ltd. alleging deficiency in service on the part of the opposite party in respect of builder buyer agreement entered into between the parties in respect of commercial space.

2. We have heard arguments on admission. The first and foremost question which arises for consideration is whether or not the complainant is a consumer as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986 and if not whether the complaint is maintainable? In order to find answer to this question, it would be useful to have a look on Section 2 (1) (d) of the Consumer Protection Act, 1986 which defines the term 'Consumer'. The definition reads as follows: -

'(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'

3. On reading of Section 2 (1) (d) (i) & (ii) of the Act it is clear that the consumer is a person who buys goods for consideration or hires or avails of services for consideration. The section carves out an inbuilt exception to the aforesaid explanation by providing that if the goods are purchased for commercial purpose or the services are hired or availed for commercial purpose, the person would not be termed as a consumer.

4. Learned counsel for the complainant has contended that there can be no dispute with the aforesaid interpretation of Section 2 (1) (d) (i) & (ii) of the Act but the explanation to the section gives a limited meaning to the term 'Commercial purpose' and it provides that commercial purpose does not include use by a person of goods bought or services hired or availed exclusively for the purpose of earning the livelihood by means of self-employment. Learned counsel has referred to the judgment of Hon’ble Supreme Court in the matter of Krnataka Power Transmission Corporation Ltd. and Ar. Vs. Ashoka Iron Works Pvt. Ltd. AIR (2009) Supreme Court 1905 in particular para-18 and submitted that the complainant company falls within the definition of person. The Consumer Protection Act does not make any distinction between natural and juristic person and, therefore, the explanation is squrely applicable to the company. It is further contended that even a company in order to survive has to earn livelihood and, therefore, the case of the complainant is squarely covered under the explanation and the complainant is a consumer.

5. We are not convinced with the aforesaid submission. In order to take benefit of the explanation, the complainant is required to establish that the services of the opposite party were availed exclusively for the purpose of earning 'livelihood' by means of self-employment'. The user of the words, 'livelihood' and 'self-employment' by itself imply that this explanation relates to a natural person. If the interpretation sought to be given by learned counsel for the complainant is accepted then every company will come and say that it has bought the goods for consideration or hired or availed services for consideration for the purpose of livelihood of the company by means of self-employment. That will make the entire exception carved out in the definition redundant. It appears that the instant complaint has been filed

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only with a view to avoid payment of court fee, which would require to be paid for filing a civil suit. Thus, in our view, the complaint is frivolous and mala-fide. It is accordingly dismissed with cost of Rs.10,000/- to be deposited by the complainant company with 'Consumer Legal Aid Account-NCDRC' within four weeks. 6. This order, however, will not come in the way to avail of its remedy by approaching the appropriate Fora having jurisdiction. 7. List on 9.1.2017 for compliance.
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