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National Consumer Disputes Redressal
Anil Dutt vs M/S. Business Park Town Planners ... on 1 October, 2013

NATIONAL CONSUMER
DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER COMPLAINT
NO.159 OF 2012

Anil Dutt
S/o Sh.Ram Bhaj Dutt,

B-75,
(GF), Soami Nagar,

New
Delhi -110017 .Complainant

Versus

M/s
Business Park Town Planners Ltd. (BPTP)

M-11, Middle
Circle, Connaught Circus

New
Delhi, Through its Managing Director

Also
at: BPTP Crest, Plot No.15

Udyog Vihar,
Phase-IV, Gurgaon 122 015 Opposite
party

 
  

BEFORE :

HONBLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER

HONBLE
DR.S.M.KANTIKAR, MEMBER

For the
Complainant : Mr.Rajiv K. Garg, Advocate

With Ms. Kavita Rawat, Advocate

For the
Opposite Party :
Mr. Pragyam Sharma, Advocate

With Ms.Neelam
Gupta & Mr.Dushyant Upadhyay,

Advocates
  

Pronounced on 1ST
October, 2013

ORDER

JUSTICE J.M.MALIK :
 

1. The whole controversy pivots around the question, Whether the complainant is a consumer, under the
Consumer Protection Act, 1986.
 

2. The instant complainant is filed by Sh. Anil Dutt, the complainant.

The facts germane to the present case are these. M/s Business Park Town Planners Ltd. (BPTP), the opposite
party, in this case, on 26.02.2006, gave an advertisement inviting applications for purchase of Plots, Flats,
Villas and Apartments at Parkland, Faridabad. The complainant indicated his interest for the purchase of
10 plots, each admeasuring 300 sq.yards, for all his family members, so that they can live in one vicinity. It
was agreed that the complainant would pay a sum of Rs.32,40,000/- per plot. The complainant accordingly
paid Rs.7,50,000/- initially, for each plot, i.e. total payment of Rs.75,00,000/- for 10 plots. The opposite party
accepted this amount on 05.05.2006, and issued Receipts, mentioning Provisional Registration for a Unit in
Future Project- 07. The opposite party assured the complainant that delivery of possession of plots would
be given at the earliest, and in no way, beyond thirty months.
 

3. As there was delay on the part of the opposite party to provide the plots, the complainant and his family
members withdrew their interest in the said plots and, therefore, vide letter dated 15.12.2007 requested
the Opposite party to re-group all the aforesaid plots and restrict to only four plots, admeasuring 300
sq.yds., each, and adjust the entire advance paid to the opposite party, towards those four plots. On
06.06.2008, the opposite party allotted only three plots, of different size, admeasuring 327, 327 & 345 sq.
yards, respectively, and the complainant was asked to pay the amount in respect of those plots. The fourth
plot was not allotted. On 22.07.2008, OP allotted another plot bearing No.W4-11, admeasuring 303 sq. yards
and directed the complainant to pay Rs.9,33,193/-, by 06.08.2008. The above said four plots were allotted
unilaterally, without any confirmation /consent/ approval of the complainant. The complainant was to pay
a sum of Rs.54,60,000/- against the entire sale consideration of 4 plots @ Rs.10,800/- per sq. yards. The
complainant again paid a sum of Rs.32,87,425/-, vide demand letter dated 12.08.2008, received from the OP.
 

4. However, on 13.08.2008, the complainant further demanded a sum of Rs.70,17,651/-, despite having
received the payment of Rs.1,07, 87,425/- , till then. Out of the total amount of Rs.1,29,60,000/- due and
payable against the four plots of 300 sq.yards each, only a sum of Rs.21,72,575/- was paid. No details were
given for the said demand. Ultimately, the present complaint was filed on 31.05.2012, with the following
prayers :-
a) to deliver possession of all the plot Nos. S5-09, V3-02, S3-09 and W4-11, located at Parklands, Faridabad,
after removing all the deformities as pointed out in the communications;

b) in alternative, deliver possession of other 4 plots in favour of the complainant admeasuring 300 sq.yds
each, at Parklands, Faridabad.

c) Award interest on the amount lying deposited of Rs.1,07,87,425/- with interest @ 18% till the delivery of
actual possession of the four plots, without any deformity.

d) Award Rs.25,00,000/-

towards compensation for the mental agony/harassment and inconvenience suffered by the complainant
for the last over six years.

e) award costs of this proceedings

f) to pass such other and further order which may deem fit and proper.
 

5. The Opposite Party contested the complaint. It has called into question the jurisdiction of this
Commission. Consequently, we are bound to decide this point, first of all, as per law laid down by the
Honble Apex Court in the case of K.Sagar Vs.- Managing Director, Kiran Chit Fund, Mushridabad Vs. A. Bal
Reddy, 2008 (7) Supreme Court Cases, 166.
 

6. We have heard counsel for the parties. The learned counsel for the OP vehemently argued that their lies
no rub in having four plots for the whole of the family.

He argued that the family consists of four people and the complainant wants to have four plots, for
separate living by each of the member.

The learned counsel pointed out that the Opposite party is deficient. He alleges that OP has allotted plots
which were situated close to high tension wires.
 

7. We find it extremely difficult to countenance such contention, for the following reasons. There is a letter,
dated 13.08.2008 written by the complainant himself to the Opposite Party, the relevant paras of which are
reproduced, as follows :

1.           In addition to above this plot has overhead high tension cables passing through which drops its
total re-sale value. I personally feel that my investment/money is stuck up in this plot and which is of no
use to me.

2.           In addition to above this plot has overhead high tension cables passing through which drops its
total re-sale value.

3.           I would also like to point out that next to this plot is a village boundary wall separating village with
BPTP area is a major drawback of this plot which drops its re-sale value.
 

8. This is also interesting to note that all the amount has been paid by the complainant. There is not even
an iota of evidence which may go to show that the said amount or part of it, was paid by any other member
of the family. The above said letter clearly goes to show that the above said plots were purchased for re-
selling the same. Consequently, the complainant is not a Consumer, as per Section 2 (1)(d)(ii), which is
reproduced 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 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.
 

9. In Chilkuri Adarsh Vs. ESS ESS VEE Constructions, III (2012) CPJ 315, it was held that this has been
consistent view of this Commission. It has held that even when a consumer has booked more than one unit
of residential premises; it amounts to booking of such premises for investment commercial purpose. This
Commission in the case of Jagmohan Chabra and another Vs. DLF Universal Ltd., IV (2007) CPJ 199, in a
somewhat similar case held that the complaint was not maintainable under the Consumer Protection Act,
1986. It had, therefore, disposed the complaint with liberty to the complainant to approach Civil Court. The
said order has since been upheld by the Honble Supreme Court as Civil Appeal No. 6030-6031 of 2008, filed
before the Supreme Court stands dismissed vide the Apex Courts order dated 29.09.2008.

10. In Bihar School Examination Board Vs. Suresh Prasad Sinha, IV (2009) CPJ 34 at 36(SC) : AIR 2010 SC 93 :
JT 2009 (11) SC 541, (2009) 8 SCC 483, the Honble Apex Court, held :-

Consumer Definition of :- According to the definition of consumer in Section 2(d) of the Act, a person who
hires or avails of any services for a consideration, is a consumer. The following category of service-availors
will not be consumers : (i) persons who avail any service for any commercial purpose; (ii) persons who
avail any free service; (iii) persons who avail any service under any contract of service. A consumer is
entitled to file a complaint under the Act if there is any deficiency in service provided or rendered by the
service provider.
 

11. Again, this Commission in M/s. Harsolia Motors Vs. National Insurance Co. Ltd., in First Appeal Nos. 159,
160 & 161 OF 2004, decided on 03.12.2004, has held, as under:-

In support of his submission, learned counsel Sh.Sharma, referred to the judicial dictionary meaning of the
words commercial purpose which is as under:-

The word commercial according to the Oxford Dictionary means viewed as a matter of profit and loss. The
word purpose means object which is in view or for which is made: aim amend. The word commercial
purposes would, therefore, cover an undertaking the object of which is to make a profit out of the
undertakings. (Municipal Board, Unnao Vs. The State of U.P. 1957 All. L.J. 479 at

498).

According to Oxford dictionary, it means Viewed as a matter of profit or loss.

The word commercial is defined in the Concise Oxford Dictionary, New Edition of the 1990, at page 227, the
word commercial is defined as having profit as a primary aim rather than artistic etc. value (Vide Dena
Bank, Ahmednagar Vs. Prakash Birbhan Katariya, AIR 1994 Bom 343 at

345).
 

12. In Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583, the Honble Apex Court, held,
as under :

The National Commission appears to have been taking a consistent view that where a person purchases
goods with a view to using such goods for carrying on any activity on a large scale for the purpose of
earning profit, he will not be a consumer, within the meaning of Section 2 (d) (i) of the Act. Broadly
affirming the said view and more particularly, with a view to obviate any confusion the expression large
scale is not a very precise expression Parliament stepped in and added the explanation to Section 2(d)(i) by
Ordinance/ Amendment Act, 1993.
 

13. Also, see Rajasthan State Industrial Development & Investment Corporation Vs. Diksha Enterprises, III
(2010) CPJ 333 (NC) and this Commissions judgment in RP 1129 OF 2012, Shri Harnam Singh Vs. Shalimar
Estate Pvt. Ltd. & Ors., decided on 29th May, 2012.
 

14. Consequently, we find that the present complaint is not maintainable. It is clear that the intention of the
complainant is to re-sell the said flats. These flats were not purchased for personal use of consumer. The
complaint is, therefore, dismissed. The complainant is at liberty to approach the appropriate forum to seek
redressal of his grievance. He may take advantage of the ruling of the Supreme Court in Laxmi Engineering
Works vs- PSG Industrial Institute, (1995) 3 SCC 583, to seek exclusion of time spent before this
Commission.

..............................................

(J.M.MALIK, J.) PRESIDING MEMBER   .

(DR.S.M.KANTIKAR) MEMBER   dd/