PRESIDENT
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW
DELHI
CONSUMER
CASE NO. 427,430-440 of 2014
Versus
M/s Unitech
LTD (Opposite party –OP)
Para 15. It was
contended by the learned counsel for the opposite party that some of the
complainants plan to shift to the flats booked by them only after their
retirement, meaning thereby that right now they do not need a flat for their
personal residence and they will let out the flat on taking possession from the
opposite party. The contention is that that purchase of the flat by such
persons would be for a commercial purpose and, therefore, they are not
consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act.
I, however, find no merit in this contention. The expression commercial purpose
used in Section 2(1)(d) of the Act came up for consideration of this Commission
in Kavita Ahuja Vs. Shipra Estates Ltd., CC 137 of 2010 decided on 12-02-2015
and the following view was taken:
“The expression
‘commercial purpose’ has not been defined in the Act and therefore, as
held herein below by the Hon’ble Supreme Court in Laxmi
Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, we have
to go by the dictionary meanings,
“In the absence of a
definition, we have to go by its ordinary meaning ‘Commercial’ denotes
“pertaining to commerce” (Chamber’s Twentieth Century Dictionary); it means
“connected with, or engaged in commerce; mercantile, having profit as the main
aim” (Collins English Dictionary) whereas the word ‘commerce’ means “financial
transactions especially buying and selling of merchandise on a large scale”
(Concise Oxford Dictionary)”
6.
Going by the Dictionary meaning of the expression ‘Commerce’ as far as hiring
or availing services are concerned, a person can be said to have hired or
availed services only if they are connected or related to the business or
commerce in which he is engaged. In other words, the services in order to
exclude the hirer from the ambit of Section 2(1)(d) of the Act should be
availed for the purpose of promoting, advancing or augmenting an activity, the
primary aim of which is to earn profit with use of the said services. It
would ordinarily include activities such as manufacturing, trading or rendering
services. In the case of the purchase of houses which the service
provider undertakes to construct for the purchaser, the purchase can be said to
be for a commercial purpose only where it is shown that the purchaser is
engaged in the business of purchasing and selling houses and / or plots on a
regular basis, solely with a view to make profit by sale of such houses.
If however, a house to be constructed by the service provider is purchased by
him purely as an investment and he is not undertaking the trading of houses on
a regular basis and in the normal course of the business profession or services
in which he is engaged, it would be difficult to say that he had purchased
houses for a commercial purpose. A person having surplus funds available
with him would not like to keep such funds idle and would seek to invest them
in such a manner that he gets maximum returns on his investment. He may
invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or
Debentures etc. Likewise, he may also invest his surplus funds in
purchase of one or more houses, which is/are proposed to be constructed by the
service provider, in the hope that he would get better return on his investment
by selling the said house(s) on a future date when the market value of such
house (s) is higher than the price paid or agreed to be paid by him. That
by itself would not mean that he was engaged in the commerce or business of
purchasing and selling the house (s).
7.
Generating profit by way of trading, in my view is altogether different from
earning capital gains on account of appreciation in the market value of the
property unless it is shown that the person acquiring the property was engaged
in such acquisition on a regular basis and it was by way of a business
activity.”
If
a person is residing, say, in a government accommodation and, therefore, does
not immediately need to occupy a residential flat and, hence let it out in the
interregnum till he retires and has to vacate the government accommodation it
cannot be said that the residential accommodation is acquired by him for a
commercial purpose. The objective behind acquiring accommodation is to live in
it, though on a future date. Mere postponement of the date on which the
purchaser has to shift to the residential accommodation does not convert the
purpose for which accommodation is acquired to a commercial purpose. I,
therefore, find no merit in the contention.
Warm Regards
For FEDERATION
OF RESIDENTS WELFARE ASSOCIATION
KULDEEP KUMAR
KOHLI
PRESIDENT
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