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TMI Blog2023 (9) TMI 1569X X X X Extracts X X X X X X X X Extracts X X X X ..... made payment of entire agreed amount to their vendors. Recognizing the said transfer, the names of the Appellants came to be recorded by the Respondent in substitution to the names of the vendors of Appellants. The customer code allotted to the original allotees was continued in the name of the Appellants. It was agreed between the Appellants and their vendors that Appellants would pay a sum of Rs. 18,07,100 to the original allotees and the balance amount of Rs. 34,27,050 to the Respondent as and when demanded by the Respondent. In furtherance of the same and on payment to the original allotees, the fact of such sale of shares was intimated to the Respondent. 3. Subsequent to the aforesaid circumstance, Respondent raised a demand on the Appellants and accordingly the amount was paid which was outstanding as on the date of demand. The Respondent issued the receipt and also allotment letter allotting commercial space in "Vipul Business Park" - 105 and thereafter re-allotted unit No. 814 on 8th Floor for a sale consideration of Rs. 51,51,415. This unilateral change was objected to by the Appellants and in response to the same, the Respondent threatened to forfeit the amount paid till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant recorded by the Commission. Hence the appeal. 6. We have heard the arguments of Shri Digendra Sharma, Mr. Ajay Kumar Singh, Mr. Anubhav Bhandari and Mr. Niharika Dubey, learned Counsel appearing for the Appellants and Mr. M.R. Shamshad, Mr. Atul Sharma, Mr. Ankur Sharma and Mr. Alok Tripathi, learned Counsel appearing for the Respondent. 7. It is the contention of the learned Counsel appearing for the Appellants that the Commission had erred in not appreciating the fact of Appellants having booked the commercial space only for the purpose of earning livelihood by way of self-employment and not for the purposes of reselling or making profit due to escalation of price as pleaded in the complaint; in the statement that came to be recorded by the Commission, nowhere it has been stated by the Appellants that commercial space booked by them was for the purpose of making profit and mere running of a dealership business of Reliance Industries and engaging themselves in business of investment in property, perse would not indicate or suggest that Appellants intended to sell the same; the Appellants though had approached the Respondent for delivery of possession of the commercial space ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question as to whether the Appellants are "Consumer" and answered in the negative. It has been held that Appellants would not be entitled to seek redressal of their grievance under the provisions of the Act. On the basis of the statement of the complainant made before it, the Commission has arrived at a conclusion that complainant No. 1 was running a dealership business of M/s. Reliance Industries for their livelihood and they are also engaged in the business of investment in property. Hence, the commercial space booked by the complainants cannot be said to be for the purposes of earning livelihood by self-employment or in other words the Appellants are not consumers as defined Under Section 2(1)(d) of the Act. In this background it would be necessary to note Section 2(1)(d) of the Act and it reads as under: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for "business-to-consumer" disputes and not for "business-to-business" disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal. 11. Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means insofar as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression 'resale' is clear enough. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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; Explanation.- For the purposes of Sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scope of 'Consumer' for igniting proceedings under the Act, a person who obtains goods or services for re-sale or for any commercial purpose. Going by the plain dictionary meaning of the words used in the definition Section the intention of Parliament must be understood to be to exclude from the scope of the expression "consumer" any person who buys goods for the purpose of their being used in any activity engaged on a large scale for the purpose of making profit. The words 'for any commercial purpose' must be understood as covering the cases other than those of resale of the goods. Thus, it is obvious, that Parliament intended to exclude from the scope of definition not merely persons who obtain goods for resale but also those who purchase goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit. Thus, persons buying goods either for resale or for use in large scale profit making activity will not be a consumer entitled to protection under the Act, which would be a plain interpretation of this definition clause. The intention of the Parliament as can be gathered from the definition Section is to deny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s own use, it cannot be gainsaid even in such circumstances the transaction would be for a commercial purpose attributing profit motive and thereby excluding such person from the definition of 'consumer'. When there is an assertion in the complaint filed before the Consumer Court or Commission that such goods are purchased for earning livelihood, such complaint cannot be nipped at the bud and dismissed. Evidence tendered by parties will have to be evaluated on the basis of pleadings and thereafter conclusion be arrived at. Primarily it has to be seen as to whether the averments made in the complaint would suffice to examine the same on merits and in the event of answer being in the affirmative, it ought to proceed further. On the contrary, if the answer is the negative, such complaint can be dismissed at the threshold. Thus, it would depend on facts and circumstances of each case. There cannot be any defined formula with mathematical precision to examine the claims for non-suiting the complainant on account of such complaint not falling within the definition of the expression 'consumer' as defined Under Section 2(1)(d). 13. Now turning our attention to the facts on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the definition Clause of the expression "consumer" as defined Under Section 2(1)(d). 14. It is an undisputed fact that Respondent has agreed to sell the office space in the Vipul Business Park to the Appellants. Record would also disclose that in all the Appellants paid Rs. 51,10,117/- or Respondent had received the said amount from the Appellants. Though, a faint attempt has been made by the Appellants to contend that there was unilateral change namely the Respondent had agreed to sell the office space 306 at third floor to office space No. 814 in 8th floor, we are not inclined to entertain the said plea in as much as the agreement has been duly signed by the Appellants and in token of having accepted the same they have affixed their signatures to the said agreement and it is too late in the day for the Appellants to retrace their steps on this issue. The said contention stands rejected. 15. Clause 15 of the buyer's agreement would clearly indicate that the possession of the premises was agreed to be delivered within 24 months from the date of agreement which undisputedly had not taken place, or in other words the allotted office space was not delivered even after expiry o ..... 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