TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 1624
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....nd 5 of its order dated 03.04.2018 as under: "2. It is alleged that the complainants are non-resident Indians presently residing in Denmark. They intend to shift to India. Thus with the intention to earn their livelihood they booked shop No.P-3-115 having super area 1095 sq. ft. @ 9900 per sq. ft. Total consideration payable for the shop was Rs.1,08,40,500/-. As per the terms and conditions of the agreement the opposite party had assured to give possession of the shop to the complainants within two years from the date of commencement of construction. The consideration amount was payable in following manner:- "i. At Booking 20% of the basic sale price ii. Within 30 days of booking 20% of the basic sale price iii. Within 60 days of booking 20% of the basic sale price iv. Within 90 days of booking 12.5 of the basic sale price. v. On completion of common Area Flooring 7.5% of the basic sale price vi. On completion of Façade 7.5% of the basic sale price vii. On completion of Services 7.5% of the basic sale price viii. On offer of possession 5% of the basic sale price" 3. It is alleged by the complainants that they ....
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.... amount as also the payment made by the complainants against the consideration amount in instalments have not been denied. According to the opposite party, there is no deficiency on its part. It is alleged that the agreement for sale of the subject unit was entered into between the parties in March 2008 and the completion certificate for the project i.e. Plaza-3 was applied in November 2008. Had the opposite party received completion certificate in the year 2008, the possession would have been given to the complainant either in 2008 or early 2009. The government agencies took very long time to give sanction / approval which was beyond the control of the opposite party. The opposite party received the completion certificate in September 2010 while the opposite party was gearing up for giving possession to the respective allottees, MCD revoked the completion certificate and sealed the Plaza. This led to litigation. Finally with the intervention of Court, Plaza was desealed in May 2012 and completion certificate was restored. Since then opposite party has been delivering possession of the respective units to the purchasers and by the date of filing of written statement, 100 sale deeds....
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....ed RED CROSS DENMARK and doing voluntary work of helping the refugees in settling them down in DENMARK." According to the National Commission, the material on record did not indicate that the premises in question were booked by the complainants for their self-use and self-employment. The discussion of the National Commission in that behalf was as under: "16. On reading of the above, it appears that this certificate certifies that complainant Sunil Kohli was given rights of distribution of change, chic and charade products in India and the subject right was valid till further notice. The certificate is dated 26.8.2004. There is no evidence on record to show that the complainants after 26.8.2004 undertook the distribution business at any given time before booking the subject premises in August, 2007. This circumstance raises a strong suspicion against the correctness of the certificate. Under natural course of circumstances no business house would give distribution rights of its products to someone who fails to take any initiative for distribution of the products of the said manufacturer for years together. Had this certificate been genuine, there must have been some writ....
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....unless the context otherwise requires,- (d) "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;" The provision came up for consideration in Laxmi Engineering Works, and the matter was dealt with by this Court as under: "11. Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means insofar as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include....
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.... of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. 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 emphasise what we say. 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 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 ....
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....he respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that, therefore, it is not a commercial purpose. The orders of all the Tribunals stand set aside. The matter is remitted to the District Forum. The District Forum is directed to record the evidence of the parties and dispose of it in accordance with law within a period of six months from the date of the receipt of this order." The issue therefore is whether the evidence on record is suggestive or indicative of the fact that the premises in question were booked by the complainants with the intention of self-employment or self-use. The affidavit of evidence as quoted above clearly points that the complainants wanted to dispose of the property in DENMARK and wanted to come down to Delhi to start a business. It is for this purpose that the premises in question were booked. The evidence also disclose....