Potpourri

AMBIT OF EXPLANATION OF SECTION 2(1)(d)(ii) OF CONSUMER PROTECTION ACT, 1986


Vimal Mehra v. Bhasin Infortech & Others


First Appeal No. 620 of 2016 (against the order dated 8-4-2016 in Complaint No. 271/2016 of th
e State Commission Delhi) before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi.

Legal Questions involved:

  1. If a person has booked a commercial space, will he fall within the definition of a ‘consumer‘ under Section 2(d) of the Consumer Protection Act, 1986?
  2. Is dismissal of complaint in limine without going through the averments mentioned in the complaint justifiable?

Facts: The complainant is an educated lady having a vast experience in trading of clothes and further she developed good business sense due to her family history in cloth business. In order to re-start her business which was closed due to paucity of funds way back in 1970s, she booked a commercial space admeasuring 1052 sq feet at Grand Venezia Tower, Greater Noida.

There was a failure on the part of the builder in delivering the possession and in non-paying the assured return as promised.

The complainant approached the Hon’ble State Commission Delhi and filed a complaint vide Complaint No. 271/16 heard on 8-4-2016. On the very first date the complaint was dismissed on the ground that the “complainant booked a commercial space of 1052 sq. feet, hence the case is not covered by Section 2(1)(d) of the Consumer Protection Act, 1986. In para 4 of the complaint it is mentioned that the earlier business of clothes was closed in 1972. It cannot be believed that the booking was for the purpose of earning livelihood for self-employment. The complainant is a senior citizen. She cannot be expected to work single-handedly”.

Filing of Appeal: Aggrieved by the above said order, Sh. Mohit Popli, Counsel for the complainant immediately approached the Hon’ble National Consumer Disputes Redressal Commission. It has been specifically contended by the counsel that the Ld. State Commission grossly erred in law in giving a finding against the appellant on the premise that “it cannot be believed that the booking was for the purpose of earning livelihood for self-employment”. The Ld. State Commission had failed to consider the averments made in the complaint as it has been specifically stated that the complainant is an educated and self-employed lady; after receiving the interest income, the appellant had invested her hard-earned money and savings in Shares, Dividends so that at some point she can again start her dream business of clothes which was closed due to paucity of funds and family problems.

It is further submitted by the counsel that the Ld. State Commission grossly erred in law in holding that “the complainant is a senior citizen and hence she cannot be expected to work single-handedly”. It is submitted that the complainant is a fit lady and can handle her business of clothes or giving training to students and newcomers in the premises booked for her self-employment. It is submitted that if a senior citizen can work, or can handle business, or can argue in courts being a legal practitioner or other, then the lady also has an equal right to work for herself and further the complainant/appellant has also presented a detailed affidavit along with this appeal, confirming all the above said averments and submissions as the business of giving training or selling/trading in cloth does not require employment of any staff and it is a settled principle of law that there is no reason to disbelieve the uncontroverted affidavit.

Finding and Verdict of the Hon’ble National Commission: It has been observed by the Hon’ble  National Commission in its judgment that “It is evident from the impugned order that for arriving at the aforesaid conclusion, three factors have weighed with the State Commission, viz.,

(i)      since in para-4 of the Complaint it has been mentioned that the earlier business of clothes having been closed in the year 1972, it could not be believed that the booking was for the purposes of earning livelihood by self-employment;

(ii)    the complainant being a senior citizen, she could not be expected to work single-handedly; and

(iii)   the amount of booking and the extent of area show that the booking was commercial.”

It has been held by the Hon’ble Commission that “Having carefully perused the Complaint, we are of the opinion that the State Commission erred in non-suiting the Appellant at the threshold on the said ground. Without expressing our final opinion on the issue, lest it may cause prejudice to the Opposite Parties, who have not yet got the opportunity to put forth their stand on the Complaint by filing the Written Version, we are of the prima facie view that the case of the Complainant does fall within the ambit of Explanation to Section 2(1)(d)(ii) of the Act. It is trite law that while adjudicating on such issues the pleadings have to be read in totality, and parrot like repetition of the words of the statute is not necessary.

We feel that in paragraphs 5 to 7 of the Complaint, the complainant has made a specific averment that she wanted to acquire the said shop for running a small showroom for selling clothes in the shopping complex in order to earn respectable livelihood by self-employment, which could not be brushed aside even without waiting for the response by the Opposite Parties. In view of the above, the Appeal is allowed; the impugned order is set aside; and the Complaint is restored to the Board of the State Commission for adjudication on merits, after due opportunity to the Opposite Parties to file their Written Versions along with the supporting evidence.

The Appeal stands disposed of in the above terms, with no order as to costs.”

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