NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 209 OF 2012

(Against the Order dated 11/01/2012 in Complaint No. 52/2011 of the State Commission
Chandigarh)
1. EMAAR MGF LAND LIMITED AND ANR.
SCO 120 122, First Floor, Sector 17C,
Chandigarh
Punjab
2. EMAAR MGF LAND LTD
ECE House, 28 Kastuba Gandhi Marg,
NEW DELHI-110001 ...........Appellant(s)
Versus
1. INDU SONI
W/o Sh. Somnath Sodhi, House No. 1593, Sector-18-D,
Chandigarh
Punjab ...........Respondent(s)
FIRST APPEAL NO. 210 OF 2012

(Against the Order dated 11/01/2012 in Complaint No. 53/2011 of the State Commission
Chandigarh)
1. EMAAR MGF LAND LIMITED AND ANR.
SCO 120 122, First Floor, Sector 17C,
Chandigarh
Punjab
2. EMAAR MGF LAND LTD
ECE House, 28 Kastuba Gandhi Marg,
NEW DELHI-110001 ...........Appellant(s)
Versus
1. RAVINDER KUMAR SODHI
S/o Shri Harish Chander Sodhi, R/o H No. 1180,
sector-34 B,
Chandigarh
Punjab ...........Respondent(s)
FIRST APPEAL NO. 213 OF 2012

(Against the Order dated 11/01/2012 in Complaint No. 62/2011 of the State Commission
Chandigarh)
1. EMAAR MGF LAND LIMITED AND ANR.
SCO 120 122, First Floor, Sector 17C,

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Chandigarh ...........Appellant(s)
Versus
1. MALIK SINGH KOHLI & ANR.
S/o Late Shri Harnam Singh Kohli,House No. 163,
Sector-18A,
Chandigarh
2. MS. NEHA SODHI GAUR,
H No. 1593, Sector-18-D,
Chandigarh ...........Respondent(s)

BEFORE:
HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER
HON'BLE MR. DINESH SINGH,MEMBER

For the Appellant : Ms. Yashmeet Kaur, Advocate

For the Respondent : Mr. G.C. Garg, Advocate

Dated : 05 Oct 2018

ORDER

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. ………..”

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 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

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 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

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 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)

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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.

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 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.”)

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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).

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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.

......................
DR. S.M. KANTIKAR
PRESIDING MEMBER
......................
DINESH SINGH
MEMBER

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