1.       We heard learned counsels for the appellants – opposite parties and respondents – complainants, and perused the material on record.

2.       C.C. No. 52 of 2011 Indu Sodhi vs. Emaar MGF Land Ltd.; C. C. No. 53 of 2011 Ravinder Kumar Sodhi vs. Emaar MGF Land Ltd.; C.C. No. 54 of 2011 M/s. Saurabh Sales Pvt. Ltd. vs. Emaar MGF Land Ltd; and C.C. No. 62 of 2011 Malik Singh Kohli and Neha Sodhi Gaur vs. Emaar MGF Land Ltd. were accepted with costs by the State Commission vide its Order dated 11.01.2012.

3.       The dispute relates to units / shops in ‘Central Plaza’ of ‘Mohali Hills’ project of the appellants – Emaar MGF Land Ltd.

4.       In the complaint cases one preliminary objection (inter alia) raised by the opposite party – Emaar MGF Land Ltd. was that the complaints were not maintainable within the meaning of section 2 (1) (d) (i) & (ii) of the Act 1986 and deserved to be dismissed on this ground alone (para 4 under preliminary objections of its reply before the State Commission).

5.       The State Commission in its Order of 11.01.2012 dismissed this preliminary objection as below:

               “9.    In the written replies, filed by the opposite parties, it was pleaded that  the complaint were not the consumers, as the property, being commercial in nature, was sought to be purchased for running commercial activities, to gain profits. It was further pleaded that the complainant had no locus standi to file the complaint. ………..”

    13.      An objection, was taken, in the written replies, filed by the opposite parties, that the complainants did not fall within the definition of ‘consumers’ as the applications were submitted by them, for the allotment of commercial spaces, for running the commercial activities therein, to gain profit, and, as
such, the complaints were not maintainable. The first question, that falls for consideration, is, as to whether the complainants, in all the complaints, fall within the definition of consumers, or not. In all the complaints, it was, in clear-cut terms, averred by the complainants, that they applied for the allotment of units, with a view to earn their livelihood, by way of self-employment. In support of the averments, contained in the complaint, brief affidavits, by way of evidence, were also filed by the complainants. Under these circumstances, it could be said, that the said units / shops, were intended to be purchased by the complainants, not for running commercial activities, on a large scale, by employing a number of persons, but for earning livelihood by way of self employment. As per the explanation appended to clause (ii) of Section 2 (d) of the Act ‘commercial purpose’ does not include use by a person of goods bought and used by him, and services availed of by him exclusively, for the purpose of earning his livelihood, by means of self employment.  It is not the value of the 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 emphasis that 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 a 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 limitation, flowing from the expressions "used by him", and "by
means of self-employment" in the explanation. Similar principle of law was laid down in Laxmi Engineering Works Vs P.S.G. Industrial Institute, 1995 (2) Consumer Law Today 474 (SC). In  M/s Cheema Engineering Services Vs Raian Singh 1996 (2) Consumer Law Today 397, a case decided by a full Bench of Hon’ble National Consumer Disputes Redressal Commission, the complainant purchased a brick manufacturing machine, to
operate himself, for earning his livelihood, by taking assistance of one or two persons. Under these circumstances, it was held that he fell within the definition of a ‘consumer’. In Jindal Oil and Ginning Factory Vs Punjab Small Industries & Export Corporation (2009) CJ26 (Pb), a case decided by
the Punjab State Consumer Disputes Redressal Commission, Chandigarh, an application for allotment of an industrial plot, was made by the complainant, with a view to earn his livelihood. When the industrial plot was not allotted to him, he sought refund, and, under these circumstances, it was held that, he fell within the definition of a ‘consumer’. No evidence was led by the opposite parties, to the effect, that the applications for allotment of Units / shops were moved by the complainants, for the purpose of running a commercial activity on a large scale, and not for earning their livelihood, by way of self-employment. Under these circumstances, it is held that the complainants, fall within the definition of ‘consumers’. The submission of the Counsel for the opposite parties, thus, being devoid of merit, must fail, and the same stands rejected.”

6.         The State Commission (then) adjudicated the cases on merit and accepted the complaints with costs.  

7.         F.A. No. 209 of 2012 Emaar MGF Land Ltd. vs. Indu Sodhi (complainant in c.c. no. 52 of 2011); F.A. No. 210 of 2012 (Emaar MGF Land Ltd. vs. Ravinder Kumar Sodhi (complainant in c.c. no. 53 of 2011); F.A. No. 211 of 2012 Emaar MGF Land Ltd. vs. Saurabh Sales Pvt. Ltd. (complainant in c.c. no 54 of 2011); and F.A. No. 213 of 2012 Emaar MGF Land Ltd. vs. Malik Singh Kohli & Neha Sodhi Gaur (complainants in c.c. no. 62 of 2011) were filed against the Order dated 11.01.2012 of the State Commission.

8.         In the grounds of appeal, the appellant – Emaar MGF Land Ltd. took a preliminary objection that the complainants are not ‘consumers’:

Because the Learned State Commission proceeded to record the observation that the complainant has applied for the said allotment to earn livelihood, by way of self employment which observation was on mere speculations. It is pertinent to mention that this was a core observation as it pertained to the maintainability of the complaint. Merely mentioning that the premises would be put to use for solely earning livelihood does not amount to proof that the premise would be used for the same purpose. Admittedly, the Respondent and three others including a Private Limited company booked 5 commercial units blocking all the floors of unit no. 38 valued at over Rs. 4 crores at Mohali. Admittedly, Saurabh Sales Private Limited is a private Limited Company, who blocked one floor in Unit no. 38. Admittedly, Mr. S. N. Sodhi (Mr. Som Nath Sodhi) is the Managing Director of Saurabh Sales Private Limited and
Mr. R. K. Sodhi (Mr. Ravinder Kumar Sodhi) is the Director of Saurabh Sales Private Limited.  Admittedly, Mr. R.K. Sodhi as one of the Director of Saurabh Sales Private Limited signed the application form. Further admittedly, Mr. R.K. Sodhi also blocked one floor in the said Unit no. 38 in his own name as well. Further admittedly, Mrs. Indu Sodhi who is wife of Managing Director (Mr. S. N. Sodhi) of Saurabh Sales Private Limited blocked another floor in Unit No. 38. Further, Admittedly, Mrs. Neha Sodhi and Mr. Malik who are related to Mr. S. N. Sodhi and Mrs. Indu Sodhi blocked another floor in Unit No. 38. Further, the date and text of letters dated 28.11.2008, 13.02.2009 and 30.04.2009 written by Saurabh Sales Private Limited, Mrs. Indu Sodhi, Mr. R.K.Sodhi and Mr. Malik Singh Kohli is the same. The Respondent never stated that the purpose for which the Respondent would have used the said commercial unit except for writing the language used in exception of the section. It is submitted that it is settled law that the complainant must prove its case. The learned State Commission thus grossly erred in observing “in all the complaint, it was, in clear cut terms, averred by the complainants, that they applied for the allotment of units, with a view to earn their livelihood, by way of self employment…… Under these circumstances, it could be said that the said unit / shops were intended to be purchased by the complainants, not for running commercial activities, on a large scale, by employing a number of persons, but for earning livelihood by way of self employment”. The Learned State Commission ignored the fact that it was apparent on the face of record that the Complainant was not a “Consumer” and gave the above findings only on the premise of surmises and conjectures.

[para II of Grounds in F.A. No. 209 of 2012; similar objections in F.A. No. 210 of 2012 and F.A. No. 213 of 2012 (we have not reproduced the related objection in F.A. No. 211 of 2012, as later, on 17.02.2016, it was conceded by the learned counsel for the respondent – Saurabh Sales Pvt. Ltd. – complainant that the complainant was not a consumer as per the provisions of the Consumer Protection Act, 1986 and the appeal was allowed and the  impugned Order of the State Commission was set aside and the complaint filed before the State Commission was dismissed as not maintainable, and, now, only the remaining three F.A.s are presently pending adjudication before us.)]

9.       During the course of the proceedings in the four first appeals, on 10.12.2013 a three-member bench presided by Hon’ble President directed that “On the next date, counsel for the respondents shall satisfy us as to how the complaint was maintainable under the Consumer Protection Act.”

10.     On 04.12.2014 a single-member bench directed that “On the next date of hearing, as per our order dated 10.12.2013, counsel for respondent shall satisfy us as to how the complaint was maintainable under the Consumer Protection Act, 1986.”     

11.      On 17.02.2016 a two-member bench vide its Order dated 17.02.2016 allowed the F.A. No. 211 of 2012 of the appellant –  Emaar MGF Land Ltd. against the respondent – Saurabh Sales Pvt. Ltd.:

                   Heard.

Learned counsel for respondent / complainant has fairly conceded that the complainant is not a consumer as per the provisions of Consumer Protection Act, 1986.

In view of the above statement made by learned counsel for respondent, complaint filed by respondent / complainant before the State Commission is not maintainable. Consequently, the present appeal filed by the appellants is allowed, impugned order is set aside and complaint filed by the respondent before the State Commission stands dismissed as not maintainable.

Parties to bear their own costs.

Dasti.

The amount deposited by the appellants, if any, shall be returned to them.

                                                                           (emphasis supplied)

12.     Thereafter proceedings continued in the remaining three F.A.s No. 209 of 2012, No. 210 of 2012 and No. 213 of 2012.

13.     On 14.07.2016 arguments were heard and the Order reserved by a single – member bench.

14.     On 05.10.2016 an Order was pronounced to the effect that:

3.     Considering the arguments led by the counsel for the parties and examining the record available, it would be appropriate to hear the arguments of the parties on the merits of the case as well, before taking a decision in these first appeals.

4.     These appeals be, therefore, listed for final hearing on 16.11.2016.         

15.     On 05.06.2018 arguments were heard and the Order was reserved by a two – member bench, but could not be pronounced.

16.       On the matter coming before this two – member re-constituted bench, arguments were heard on 31.07.2018. On the preliminary issue of whether or not the complainants were consumers within the meaning of section 2 (1) (d) of the Act 1986, it was held that the complainants were not ‘consumers’. The following was recorded in the daily order-sheet:      

                    Heard Ld. counsels for appellants and respondents.

It is held that the complainants were not ‘consumers’. Reasoned judgement will follow.

17.     The reasons and detailed judgement are being written herein.

18.     First, we would want to refer to section 2 (1) (d) (i) & (ii) and section 3 of the Act 1986.

                   Section 2 (1) (d) (i) & (ii):

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.

Section 3 :

Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

19.       The Act 1986 is for better protection of the interests of consumers, to provide speedy and simple redressal to consumer disputes, in recognizedly a fight amongst unequals.

Section 3 specifically provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. That is, the remedy provided under the Act is in addition to the provisions of any other law for the time being in force; the provisions of the Act give the consumers an additional remedy besides those that may be available under other existing laws.

Section 2 (1) (d) (i) & (ii) specifically stipulates “but does not include a person who obtain such goods for resale or for any commercial purposes” and “but does not include a person who avails of such services for any commercial purposes”.

20.     In the ‘Central Plaza’ at ‘Mohali Hills’, Indu Sodhi (complainant in c.c. no. 52 of 2011) w/o Som Nath Sodhi, Managing Director of Saurabh Sales Pvt. Ltd. applied for and blocked first floor; Ravinder Kumar Sodhi (complainant in c.c. No. 53 of 2011) Director of Saurabh Sales Pvt. Ltd. applied for and blocked third floor; Saurabh Sales Pvt. Ltd. (complainant in C.C. no. 54 of 2011 [whose Managing Director is Som Nath Sodhi and other Director is Ravindra Kumar Sodhi] applied for and blocked second floor; and Neha Sodhi Gaur and Malik Singh Kohli (complainants in c.c. no. 62 of 2011) [relatives of Som Nath Sodhi and Indu Sodhi] applied for and blocked basement and ground floor. That is, the entire units / shops in ‘Central Plaza’ at ‘Mohali Hills’, basement, ground floor, first floor, second floor, third floor, were applied for and blocked by the complainants in c.c. nos. 52 of 2011, 53 of 2011, 54 of 2011 and 62 of 2011.

21.     The Explanation to section 2 (1) (d) stipulates that “ “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.”

22.       To hold the complainants as ‘consumers’ the State Commission relied on averment by the complainants, supported by affidavit, that they applied for the units to earn their livelihood by way of self employment (“in all the complaints, it was, in clear-cut terms, averred by the complainants, that they applied for allotment of the units, with a view to earn their livelihood, by way of self employment. In support of the averments, contained in the complaint, brief affidavits, by way of evidence, were also filed by the complainants.”)

23.     Mere averment, in the language of the Explanation to section 2 (1) (d), is no ground for holding a private limited company, the wife of its Managing Director, its other Director, and relatives of its Managing Director and his wife, as ‘consumers’.

Saurabh Sales Pvt. Ltd. is a company incorporated under the Companies Act, is an agency house representing national and international companies in textiles. Treating this juristic person as a ‘consumer’ within the meaning of section 2 (1) (d) on an averment supported by affidavit in the language of the Explanation to section 2 (1) (d), that the use will be to earn its livelihood by self – employment, is, on the face of it, erroneous.

Treating this ‘juristic person’ on the same footing as the other ‘persons’, i.e. treating the private limited company on the same footing as the other persons (i.e. its Managing Director’s wife, its other Director, and relatives of its Managing Director and his wife), is also, on the face of it, erroneous.

It is not insignificant that, in appeal, after the question of whether or not the respondents – complainants were ‘consumers’ within the meaning of section 2 (1) (d) was identified as a preliminary issue by a three-member bench presided by Hon’ble President, the juristic person (i.e. the private limited company) conceded that it was not a consumer (refer para 11 above).

24.       The similies / illustrations of a person who purchases an auto – rickshaw, or truck, or lathe machine, or “other” machine, adopted by the State Commission in its reasoning are misplaced in the present facts and context. Laxmi Engineering Works case, M/s. Cheema Engineering Services case and Jindal Oil and Ginning Factory case cited by the State Commission are not applicable on the facts and specificities of these matters. [ref. para 13 of the State Commission’s Order, reproduced in para 5 above].

25.     “exclusively for the purpose of earning his livelihood by means of self – employment” in the Explanation to section 2 (1) (d) has to be adjudged rationally and logically with the due understanding and significance of “exclusively” and “livelihood” and “self-employment.” Reasonable and logical interpretation does not imply an approach of anyhow allowing any complainant into the meaning of ‘consumer’ under the Act 1986.

26.     Here, the entire units / shops, entire basement, ground floor, first floor, second floor, third floor, of ‘Central Plaza’ were applied for and blocked by a private limited company (an agency house representing national and international companies in textiles), its Managing Director’s wife, its other Director and relatives of its Managing Director and his wife. In the complaint case, in a common judgement, all four were treated similarly on similar “averment” supported by “affidavit” in the language of the Explanation to section 2 (1) (d). In appeal, the juristic person conceded its case on 17.02.2016. The other three, the wife of the Managing Director, its other Director, and relatives of its Managing Director and his wife, continued to contest.

27.     The Explanation to section 2 (1) (d) is clear. “exclusively for earning his livelihood by means of self-employment” has to be read with the due understanding and significance of “exclusively” and “earning his livelihood”  and “by means of self-employment”. Reasonable and logical interpretation has to be kept limited and confined to reason and logic, not hypothised towards anyhow allowing anyone in (as in this case).

28.     Section 2 (1) (d) (meaning of ‘consumer’) and section 3 (additional remedy to consumers) have to be understood in conjunction and perspective. It has to be noted that denial to avail additional remedy in consumer protection fora to a person who is not a ‘consumer’ does not take away or affect his right to agitate his case in an appropriate forum / court as per the law. (Conversely, the availability of additional remedy in consumer protection fora does not take away the option of a ‘consumer’ to agitate his case in any other appropriate forum / court.)  

29.     We may here also note that this fight was not amongst unequals, it was one company and its top echelons versus another company. The one, an equal to the other.

30.     We have no qualms in unhesitatingly holding that in the facts of the case the finding in the State Commission’s impugned Order that the complainants were consumer within the meaning of section 2 (1) (d) of the Act 1986 was erroneous and bad in law.     

31.     We hold that the complainants herein were not ‘consumers’. The State Commission’s impugned Order dated 11.01.2012 is quashed (on this ground itself).

32.     We may clarify that we have not gone into the merits of the dispute between the two sides. The complainants are free to agitate their case in any appropriate forum / court as per the law (but consumer protection fora are not for them).

33.     The F.A.s No. 209 of 2012, No. 210 of 2012 and No. 213 of 2012 are so disposed of.