State Consumer Disputes Redressal CommissionSri Deblal Chaudhury vs Sri Achinta Kumar Ghosh on 4 September, 2017Cause Title/Judgement-Entry 	    	       STATE CONSUMER DISPUTES REDRESSAL COMMISSION  WEST BENGAL  11A, Mirza Ghalib Street, Kolkata - 700087             First Appeal No. A/499/2015  (Arisen out of Order Dated 27/03/2015 in Case No. Complaint Case No. CC/205/2013 of District Hooghly)             1. Sri Deblal Chaudhury  S/o Lt. Bantoram Choudhury, Vill. - Kistmat Apurbopur, P.O. & P.S. - Singur, Dist. - Hooghly.  2. Sri Bholanath Choudhury  S/o Sri Deblal Choudhury, Vill. - Kistmat Apurbopur, P.O. & P.S. - Singur, Dist. - Hooghly. ...........Appellant(s)   Versus      1. Sri Achinta Kumar Ghosh   S/o Sri Ramtaran Ghosh, Vill. & P.O. - Kamarkundu, P.S. - Singur, Dist. - Hooghly.  2. Saroj Kumar Ghosh  S/o Sri Ramtaran Ghosh, Vill. & P.O. - Kamarkundu, P.S. - Singur, Dist. Hooghly. ...........Respondent(s)       	    BEFORE:      HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER          For the Appellant: Mr. Pannalal Das , Advocate    For the Respondent:  Ms. Madhumita Patra, Advocate     Dated : 04 Sep 2017    	     Final Order / JudgementDate of Filing - 28.04.2015

 

Date of Hearing - 23.08.2017

 

            The instant appeal underSection 15of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Opposite Parties to assail the Order No.13 dated 27.03.2015 passed by the District Consumer Disputes Redressal Forum, Hooghly at Chinsurah (in short, Ld. District Forum) in Consumer Complaint no. 205/2013. By the impugned order, the Ld. District Forum allowed the consumer complaint lodged by the Respondents underSection 12of the Act with certain directions upon the Appellants to execute and register the Deed of Conveyance in favour of the OPs/appellants within 30 days after receipt of balance consideration amount etc.

 

          The Respondents herein being Complainants lodged the complaint asserting that the OPs/appellants have made an advertisement for selling ownership flats and commercial complex within Singur P.S. and being allured the respondents/complainants agreed to purchase one shop room with carpet area of 85 sq. ft. at a consideration of Rs.1,500/- per sq. ft. and an agreement to that effect was executed on 30.12.2009 and on that date the complainant paid a sum of Rs.10,000/- as an earnest money.  Subsequently, the complainant further agreed to purchase another shop room of 85 sq. ft. area at a consideration of Rs.1765/- per sq. ft. and to that effect a second agreement was also executed and an amount of Rs.10,000/- has been paid as an advance money.  The complainant states that for consideration of two shop rooms, he has already paid Rs.2,25,000/- out of total consideration amount.  However, as the opposite parties raised dispute as to share of the property, the construction and delivery of possession has been delayed.  Therefore, the respondent approached the Ld. District Forum with prayer for several reliefs including execution and registration of Deed of Conveyance.The appellants herein being opposite parties by filing a written version disputed the claim and prayed for dismissal of the complaint.After evaluation of materials on record, the Ld. District Forum by the impugned order allowed the consumer complaint on contest against the OPs with certain directions as indicated above.  To challenge the said order, the opposite parties have come up in this Commission with the present appeal.I have considered the submission advanced by the Ld. Advocates appearing for the parties and scrutinised the materials on record.Having heard the Ld. Advocates appearing for the parties and on perusal of the record, I find that the Ld. District Forum framed several points to adjudicate the dispute including a point whether the case is maintainable or not but I do not find any discussion regarding maintainability of the proceeding, specifically, whether or not the complainants are 'consumer' as defined inSection 2(1)(d)(ii)of the Act.From the averment of the petition of complaint and other materials, it reveals that the respondents intended to purchase two shop rooms from the appellants but nowhere in the petition of complaint, it has been mentioned that the respondents/complainants intended to purchase the same for earning their livelihood by means of self-employment.  Therefore, the question comes for consideration as to whether the respondents/complainants are 'consumer' as defined inSection 2(1)(d)of the Act.  For appreciation of the situation, it would be worthwhile to reproduce the definition ofSection 2(1)(d)of the Act which provides -"Consumer means any person who -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 then 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
	 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 purpose".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".The foregoing provision provides that the 'consumer' is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of services for commercial purposes.  Explanation to the Section creates and exception and states that clause 'commercial purpose' does not include used by a person of goods brought and used by him and services available by him exclusively for the purposes of earning his livelihood by means of self-employment.In the case of Laxmi Engineering Works -Vs.- P.S.G. Industrial Institute reported in (1995) 3 SCC 583 the Hon'ble Supreme Court has observed that what is a 'commercial purpose' is a question of fact to be decided in the facts of each case.  It is not the value of the goods that matter but the purpose to which the goods bought are put to.  The Hon'ble Apex Court further proceeded to observe - 'the explanation, however, clarifies that in certain situations, purchase of goods for 'commercial purpose' would not yet take the purchaser out of the definition of expression 'consumer'.  If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a 'consumer'.In a decision reported in I (2005) CPJ 27 (NC) (M/s.Harsolia Motors - Vs. - National Insurance Co. Ltd.) the Hon'ble National Consumer Commission has observed that if the goods are purchased for resale or for commercial purpose, then such consumer would be excluded from the coverage of the Act.In another decision reported in (1997) 1 SCC 131 (Cheema Engineering Services -Vs.- Rajan Singh) the Hon'ble Apex Court has explained the term self-employment by observing thus:"Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchase for the purpose of manufacture ..... by employing himself in working out or producing the goods for earning his livelihood.  He includes the members of his family".The Hon'ble National Consumer Commission in a decision reported in 2000 (3) CPJ 13 (Shakti Engineering Works -Vs.- Sree Krishna Coir Rope Industries) has held that in order to have protection of explanation toSection 2(1)(d)(ii)of the Act, one must establish that he himself was engaged in the activity which generates livelihood.  Acting in supervising capacity would not satisfy the requirement of explanation.In the case beforehand, the respondents/complainants did not mention whether they intended to purchase two shop rooms for earning their livelihood by means of self-employment.  The respondents alone cannot run the business of two shop rooms at the same time and certainly he will employ somebody to run at least one out of the two shop rooms to earn profit and as such the respondents/complainants cannot be categorised as 'consumer' as defined inSection 2(1)(d)(ii)of the Act.For the reasons aforesaid, I must say that the Ld. District Forum has totally misdirected itself by not construing the definition ofSection 2(1)(d)of the Act and the authoritiesreferred above.  As a result, the appeal should be allowed and the impugned order being not sustainable in the eye of law, is liable to be set aside.In view of the above, the appeal is allowed on contest.  However, there will be no order as to costs.The impugned Order is hereby set aside.Consequently, CC/205/2013 stands dismissed.However, this does not debar the Respondent/Complainant to approach a competent Court/Forum in accordance with law and in the process he may seek assistance of the decision of Hon'ble Supreme Court reported in the case of Laxmi Engineering Works (supra) to overcome the hurdle of limitation as embodied inSection 14(1)of Indian Limitation Act.The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Hooghly at Chinsurah for information.[HON'BLE MR. SAMARESH PRASAD CHOWDHURY]  PRESIDING MEMBER