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In The National Consumer Disputes Redressal Commission New Delhi

The National Consumer Disputes Redressal Commission heard a case between Mukul Dalmia and DLF Commercial Developer Ltd. Dalmia had booked and paid for a 633 sqft shop, but was now being offered a smaller 565 sqft shop. DLF argued the case was not maintainable since the shop was booked for commercial purposes. However, the Commission noted that whether the purpose was commercial is a factual question. It cited a past Supreme Court ruling that determining commercial purpose requires examining the specific facts and circumstances of the case. While Dalmia stated he invested for his son's livelihood, DLF disputed this. The Commission deferred its decision on maintainability until after both parties file evidence affidavits on the purpose of

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64 views3 pages

In The National Consumer Disputes Redressal Commission New Delhi

The National Consumer Disputes Redressal Commission heard a case between Mukul Dalmia and DLF Commercial Developer Ltd. Dalmia had booked and paid for a 633 sqft shop, but was now being offered a smaller 565 sqft shop. DLF argued the case was not maintainable since the shop was booked for commercial purposes. However, the Commission noted that whether the purpose was commercial is a factual question. It cited a past Supreme Court ruling that determining commercial purpose requires examining the specific facts and circumstances of the case. While Dalmia stated he invested for his son's livelihood, DLF disputed this. The Commission deferred its decision on maintainability until after both parties file evidence affidavits on the purpose of

Uploaded by

Prakhar Singh
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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MANU/CF/1063/2013

IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION


NEW DELHI
Consumer Complaint No. 162 of 2009
Decided On: 21.01.2013
Appellants: Mukul Dalmia
Vs.
Respondent: DLF Commercial Developer Ltd.
Hon'ble Judges/Coram:
Ajit Bharihoke, J. (Presiding Member) and Suresh Chandra, Member
Counsels:
For Appellant/Petitioner/Plaintiff: Manish Aggarwal, Advocate
For Respondents/Defendant: R. Narain, Sr. Adv. with, Kanika Gomber, Siddharth
Banthia, Avinash Mohapatra and Nimita Kaul, Advocates
ORDER
Ajit Bharihoke, (Presiding Member)
1. By this order we propose to dispose the preliminary objection taken by the opposite
party on maintainability of the consumer complaint filed by the complainant Mukul
Dalmia. Briefly relevant facts for the purpose of deciding the objection are that the
complainant on 15.12.2005 booked shop No. 1 in Tower B measuring 633 sq.ft in the
proposed DLF Tower at Jasola. At the time of booking, the complainant paid a sum of
Rs. 19,39,275/- as registration / application money. On 09.06.2006 Retail / Commercial
Space Buyers Agreement was executed between the complainant and the opposite party.
The complainant has paid all the instalment as per payment plan in time and in all he
has paid a sum of Rs. 1,22,18,417/- against the consideration amount of the shop.
Grievance of the complainant is that though he has complied with his part of contract,
the respondent-service provider is now offering him possession of the shop with much
lesser area, that is, 565 sq.ft. It is alleged that at the time of booking of the shop,
printed maps were furnished by the respondent in which the super area of shop no. 1 of
Tower B was shown as 663 sq.ft. The respondent, however, has subsequently altered
the construction plan and carved out two more shops bearing no. 23A and 24A on the
ground floor which has resulted in reduction in the area of the shops at the ground
floor. This according to the complainant is deficiency in service which has led to filing
of the complaint.
Respondent in his reply to the amended complaint has taken a preliminary objection
that instant consumer complaint is not maintainable for the reason that the complainant
had booked the shop in question for commercial purpose which is apparent from his
admission in para 18 of the complaint wherein the complainant has alleged that he is a
bonafide investor who had invested in the shop in the year 2005. It is alleged in the
written statement that from the above, it is obvious that services of the respondent
availed by the respondent under the agreement were for commercial purpose. As such,
the complainant in view of the definition of 'consumer' under section 2 (d) of the
Consumer Protection Act (in short, 'the Act') is not a consumer.

04-01-2023 (Page 1 of 3) www.manupatra.com Sudeep Kr. Shrotriya


2 . Learned counsel for the respondent has contended that as per the definition of
'consumer' in section 2 (d) of the Act, the person who avails services for any
commercial purpose are excluded from the definition of consumer. Admittedly, the
complainant had booked a commercial shop which obviously amounts to availing of
service for commercial purpose and also that complainant admitted that he invested the
money in the commercial shop. Therefore, the complainant cannot be termed as
consumer and as such complaint filed by him is not maintainable.
3. Shri Manish Aggarwal, Advocate for the complainant on the contrary has contended
that booking of shop in a commercial project by itself cannot be termed as availing
service of the respondent for commercial purpose. He has argued that the purpose for
which the shop was booked is a question of fact which is to be decided in the facts and
circumstances on the basis of evidence produced on record. Thus, it is argued that at
this nascent stage, without any factual evidence on record, the complaint cannot be
rejected.
4 . We have heard the rival contentions and perused the material record. Similar
question pertaining to the definition of consumer came up before the Supreme Court in
the matter of Laxmi Engineering Works v. P.S.G. Industrial Institute, II (1995) CPJ 1
(SC)=(1995) 3 SCC 583 wherein the Hon'ble Supreme Court after analysing the relevant
provisions of the Act held thus:
"Whether the purpose for which a person has bought goods is a 'commercial
purpose' within the meaning of the definition of expression 'consumer' in
Section 2 (d) of the Act is always a question of fact to be decided in the facts
and circumstances of each case.
A person who buys goods and uses them himself exclusively for the purpose of
earning his livelihood, by means of self-employment is within the definition of
the expression 'consumer."
5. Going by the analogy of aforesaid finding of the Supreme Court, we are of the view
that whether the purpose for which the complainant has availed services of the
respondent-builder is a "commercial purpose" within the meaning of definition of
expression "consumer" under section 2 (d) of the Act is a question of fact to be decided
on the basis of facts and circumstances of the case.
6. On perusal of record, we find that the complainant in para 18 of the complaint has
stated that he had invested in shop no. 1 of Tower B. Whether aforesaid investment was
for making commercial profit or not is also a question of fact which can be determined
only on the basis of evidence. We may note that the complainant in rejoinder has tried
to explain that he had invested in shop no. 1 of Tower B of the proposed DLF Tower at
Jasola with a view to ensure source of earning /livelihood for his disabled minor son
who is suffering from non curable Hemophilia since birth. This plea of the respondent is
also a question of fact. Therefore, we are of the view that the issue pertaining to
maintainability of the complaint would require evidence for determination. Accordingly,
the decision on the issue is deferred with the observation that issue regarding
maintainability shall be dealt with at the stage of final arguments. Pleadings in this case
are complete. Accordingly, parties are directed to file their evidence on affidavit within
four weeks.
List on 05.03.2013 for disposal of Miscellaneous Application No. 1338/2009.
© Manupatra Information Solutions Pvt. Ltd.

04-01-2023 (Page 2 of 3) www.manupatra.com Sudeep Kr. Shrotriya


04-01-2023 (Page 3 of 3) www.manupatra.com Sudeep Kr. Shrotriya

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