JUSTICE V.K. JAIN (ORAL) A company, namely, M/s Dwarikesh Trading Company Ltd. booked a residential flat with the OP and entered into an agreement to sell dated 13.8.2010 with it. The purchase was later transferred by the above-referred company to the complainant company. The grievance of the complainant, as pleaded in the complaint, is that though the possession of the flat had to be delivered by June 2011, it had not been delivered to it. The complainant, therefore, approached this Commission making the following prayers:- “ a. Possession of the said flat as immediately as possible. b. Interest on the amount paid towards consideration of the said flat till the time of actual possession of the flat at the rate of 24%. c. Loss in profit (market price of the flat being offered when market was high at Rs.16,000/- per square feet (psf) minus the current market price of the flat at around Rs.12000/- psf = Rs.65,40,000/-. d. A sum of Rs.1,50,000/- (estimated) towards the legal cost incurred by the complainant in legal proceedings. e. A sum of Rs.50,00,000/- towards liquidated damages for harassment and disruption of business transactions.” 2. The complaint has been resisted by the OP on the several grounds. It is, however, an admitted position that the possession of the flat in question has been delivered to the complainant during pendency of the complaint. 3. It is submitted by the learned Sr. Counsel for the OP that the complainant being a company having purchased the flat for commercial purpose of making profit by selling it at a higher price, cannot be said to be a consumer as defined in section 2(1)(d) of the Consumer Protection Act. 4. Section 2 (1)(d) of the Act, excludes from the purview of the term ‘consumer’ a person who purchases goods or hires or avails services for a commercial purposes, unless such a person comes within the scope of the explanation attached to the aforesaid clause. 5. The complainant has pleaded as under in para 13 of the complaint:- “On account of delay in receiving the possession, the complainant lost the opportunity to sell the said flat when market was at its peak. The complainant had buyers who were offering reasonably high price when market was looking northwards, but they insisted on receiving clear possession of the said flat. On account delay in offering the possession on the part of builder and sliding down of the realty market from its peak and on the decline that still continues, the complainant lost the opportunity to exit when the market was at is summit and reap the profits, consequent to inordinate delay in receiving the possession from the builder. Consequently, the complainant’s funds remain blocked.” 6. It is evident from a bare perusal of the above-referred averments made in the complaint that the flat in question was booked by the complainant for the purpose of making profit by selling the same at a higher price. If the only purpose behind booking a residential flat, by a company, is to sell the same at higher price, it can hardly be disputed that the purchase is made for a commercial purpose. The complainant has in fact not even tried to conceal its motive behind the aforesaid purchase of the flat when it stated that when the market was high, it had buyers who were offering high price but they were insisting on receiving clear possession of the flat in question. The complainant has gone to the extent of stating that it has lost an opportunity to exit when the market was at its peak and to reap the profits which could accrue to it by sale of flat, on account of inordinate delay on the part of the OP in offering possession of the flat. The above-referred averments leave no doubt at all that the whole purpose behind purchase of this flat was to make profits by selling the same at a higher price. 7. The complainant as noted earlier is a limited company. The question whether a company making a purchase or hiring services can be said to be a consumer or not came up for consideration before a Three-Members Bench of this Commission in Crompton Greaves Ltd. & Ors. Vs. Daimler Chrysler India Pvt. Ltd. & Ors. in Consumer Complaint No.51 of 2006 decided on 8.7.2016. The following was the view taken by the Three-Members Bench of this Commission in Crompton Greaves Ltd.(supra):- “(a) If a car or any other goods are obtained or any services are hired or availed by a company for the use/personal use of its directors or employees, such a transaction does not amount to purchase of goods or hiring or availing of services for a commercial purpose, irrespective of whether the goods or services are used solely for the personal purposes of the directors or employees of the company or they are used primarily for the use of the directors or employees of the company and incidentally for the purposes of the company. (b) The purchase of a car or any other goods or hiring or availing of services by a company for the purposes of the company amount to purchase for a commercial purpose, even if such a car or other goods or such services are incidentally used by the directors or employees of the company for their personal purposes.” |
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8. In the present case, there is no averment in the complaint that the flat in question was purchased by the complainant for the residence of its directors or its employees. The averments made in para 13 of the complaint, as extracted hereinabove rather point out to the contrary. Therefore, the complainant cannot be said to be a consumer in terms of section 2(1)(d) of the Consumer Protection Act. 9. For the reasons stated hereinabove, the complaint is hereby dismissed, with no order as to costs. | 
