Goods or services for a commercial purpose are excluded from purview of the Consumer Protection
Act, unless these are purchased or availed for the purpose of earning a livelihood. A person can also change his mind over a period of time, due to various circumstances. An interesting issue arose as to which date should be considered for reckoning whether a transaction is for a commercial purpose or not. This has been decided by the National Commission in the case of Priyajeev Narain Trika versus Bhasin Infotech & Infrastructure in Complaint No. 609 of 2015, decided on November 22, 2016.
According to the complaint, in January 2007, Trika, an NRI, wanted to relocate to India. He wanted office space in or around Delhi, to set up his own computer and software retail business. Trika booked commercial space measuring 3,066.60 sq. ft. in a project called Grand Venezia being constructed by Bhasin Infotech & Infrastructure at Greater Noida in Uttar Pradesh. The allotment letter dated April 28, 2008, described the premises as shop/showroom/food court/restaurant/ATM space/commercial space measuring 3,066.60 sq. ft., to be sold for a total consideration of Rs 2,39,19,480, and possession to be given within 36 months.
Trika paid 90 per cent of the total amount. In January 2015, the builder gave a written intimation that the project was nearing completion and demanded payment of Rs 56,46,624. Trika refused to pay this amount as he had already filed a complaint before the National Commission since possession was not given in 36 months. Trika sought a refund of the entire amount, along with interest at 24 per cent per annum.
The builder appeared before the Commission, but failed to file a reply despite repeated opportunities. The case was decided on the basis of Trika's evidence and the arguments of both the parties. The Commission asked Trika to explain his immigrant status and his income to consider whether he was a consumer entitled to file a complaint under the Consumer Protection
Act. Trika explained in his affidavit that he was an Indian citizen, engaged in computer and software retail business, IT consulting, and software and website development at that time. He wanted to return to India to start his own business for earning his livelihood. Since the builder did not give possession as per the assurance given, Trika decided not to return to India. He was earning well abroad and his income had increased over the years.
The builder's sole contention was that Trika had booked a commercial unit, so the complaint was not maintainable. The Commission refused to consider this argument as the builder had forfeited his right by not filing his reply in time. The Commission observed that the complaint would be decided on the basis of Trika's uncontroverted evidence. Since the evidence on record showed that Trika's intention at the time of booking the commercial unit was to relocate in India and start a business for earning his livelihood, the complaint was maintainable under the Consumer Protection
Accordingly, by its order of November 22, 2016 delivered by Justice V K Jain, the National Commission allowed Trika's complaint and ordered the builder to refund the entire amount along with interest at 9 per cent per annum from the date of payment of each instalment, within three months.
Thus, the intention at the time of booking the premises was considered to be material for determination of Trika's status as a consumer of services.
The author is a consumer activist