ROHIT CHAUDHARY & ANR.versusM/S VIPUL LTD.

                 [2023] 14 S.C.R. 394 : 2023 INSC 807



                            CASE DETAILS
                    ROHIT CHAUDHARY & ANR.
                                     v.
                            M/S VIPUL LTD.
                     (Civil Appeal No. 5858 of 2015)
                         SEPTEMBER 06, 2023
       [S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]
                             HEADNOTES
     Issue for consideration: The interpretation of the word and expression
“Commercial Purpose” defined u/s. 2(1)(d) of the Consumer Protection
Act, 1986.
    Consumer Protection Act, 1986 – ‘Commercial purpose’ – Not
defined in the Act – The Explanation (added by Consumer Protection
(Amendment) Act 50 of 1993:
      Held: The expression ‘commercial purpose’ has not been defined under
the Act – In the absence thereof one have to go by its ordinary meaning
– ‘Commercial’ denotes “pertaining to commerce”; it means ‘connected’
with or engaged in commerce; mercantile; “having profit as the main aim”;
relate to or is connected with trade and traffic or commerce in general,
is occupied with business and commerce – The Explanation (added by
Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance of
24 of 1993 w.e.f. 18.06.1993) excludes certain purposes from the purview of
the expression ‘commercial purpose’ – The Explanation clarifies that even
purchases in certain situations for ‘commercial purposes’ would not take
within its sweep the purchaser out of the definition of expression ‘consumer’
– In other words, if the commercial use is by the purchaser himself for
the purpose of earning his livelihood by means of self-employment, such
purchaser of goods would continue to be a ‘consumer’. [Para 12]
     Consumer Protection Act, 1986 – “Commercial purpose” – To
ascertain purchase for “commercial purpose” or not – Assertion made
in the complaint important – Evidence tendered had to be evaluated –
No straight jacket formula can be adopted:
                                    394
      ROHIT CHAUDHARY & ANR. v. M/S VIPUL LTD.                           395


      Held: If the commercial use is by the purchaser himself for the purpose
of earning his livelihood by means of self-employment, such purchaser of
goods would continue to be a ‘consumer’ – When there is an assertion in the
complaint filed before the Consumer Court or Commission that such goods
are purchased for earning livelihood, such complaint cannot be nipped at the
bud and dismissed – Evidence tendered by parties will have to be evaluated
on the basis of pleadings and thereafter conclusion be arrived at – There
cannot be any defined formula with mathematical precision to examine the
claims for non-suiting the complainant on account of such complaint not
falling within the definition of the expression ‘consumer’ as defined u/s.
2(1)(d). [Para 12]
     Consumer Protection Act, 1986 – “Consumer” – Exclusion
of persons buying goods either for resale or for use in large scale
profit making activity from the definition of consumer – Intention of
Parliament:
      Held: The Parliament has excluded from the scope of ‘Consumer’
for igniting proceedings under the Act, a person who obtains goods or
services for re-sale or for any commercial purpose – Going by the plain
dictionary meaning of the words used in the definition section the intention
of Parliament must be understood to be to exclude from the scope of the
expression “consumer” any person who buys goods for the purpose of
their being used in any activity engaged on a large scale for the purpose of
making profit – The words ‘for any commercial purpose’ must be understood
as covering the cases other than those of resale of the goods – Thus, it is
obvious, that Parliament intended to exclude from the scope of definition
not merely persons who obtain goods for resale but also those who purchase
goods with a view to using such goods for carrying on any activity on a
large scale for the purpose of earning profit – Thus, persons buying goods
either for resale or for use in large scale profit making activity will not be
a consumer entitled to protection under the Act, which would be a plain
interpretation of this definition clause. [Para 11]
      Consumer Protection Act, 1986 – The NCDRC held that
commercial space booked by the complainants cannot be said to be
for the purposes of earning livelihood by self-employment or in other
396          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


words the appellants are not consumers as defined u/s. 2(1)(d) of the
Act – Propriety:
      Held: A perusal of the complaint filed before the Commission would
indicate that appellants have specifically pleaded that they were in search of
office space “for their self-employment and to run their business and earn
their livelihood” – In the statement recorded on oath by the Commission,
while hearing the maintainability of the complaint, the first appellant has
stated that he was earlier engaged in the business of caustic soda as a dealer
of M/s.‘R’ Industries and presently engaged in the business of investment/
dealing in property – He has nowhere stated that he had proposed to purchase
the office space from the respondent for the purpose of either selling the
same for higher price or the said property was being purchased as an
investment for being sold in future – The statement of the appellant was
that he engaged in the business of investment/dealing in property would not
ipso facto suggest or indicate the property proposed to be purchased from
the respondent was for commercial purpose – It is not in dispute that in all
the respondent has received a sum of Rs.51,10,117/- from appellants – To
balance the equities, respondent directed to refund the amount it has received
from appellants with interest calculated @ 12% per annum – Therefore, the
order dated 11.05.2015 passed by the NCDRC in consumer complaint set
aside. [Paras 13, 16 and 17]
       LIST OF CITATIONS AND OTHER REFERENCES
     Synco Textiles Pvt. Ltd. vs. Greaves Cotton and Company Ltd., 1990
SCC Online NCDRC 3 : (1991) 1 CPJ 499; Lilavati Kirtilal Mehta Medical
Trust v. Unique Shanti Developers and others, (2020) 2 SCC 265 : [2019]
14 SCR 563; Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995)
3 SCC 583 : [1995] 3 SCR 174 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
      CIVIL APPELLATE JURISDICTION: Civil Appeal No.5858 of 2015.
    From the Judgment and Order dated 11.05.2015 of the National
Consumer Redressal Commission at New Delhi in Consumer Complaint
No.276 of 2015.
      ROHIT CHAUDHARY & ANR. v. M/S VIPUL LTD.                            397


     Appearances:
    Digendra Sharma, Ajay Kumar Singh, Anubhav Bhandari, Niharika
Dubey, Advs. for the Appellant.
      M. R. Shamshad, Atul Sharma, Ankur Sharma, Alok Tripathi, Advs.
for the Respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT

     ARAVIND KUMAR, J.
      1 The interpretation of the word and expression “Commercial Purpose”
defined under Section 2(1)(d) of the Consumer Protection Act, 1986
(hereinafter referred to as the ‘Act’ for the sake of brevity) is the pivotal
issue in this appeal.
                           FACTUAL MATRIX
      2 The appellants intended to purchase a commercial space in the project
called ‘Vipul World Commercial’ situated at Gurugram, Haryana, promoted
by the respondent. After having come to know that Mrs. Bindu Rawlley and
Mr. Talwinder Singh intended to sell their shares in office unit No.306 on
the third floor in the aforesaid commercial complex allotted to them by the
respondent, appellants agreed to purchase the same and accordingly made
payment of entire agreed amount to their vendors. Recognizing the said
transfer, the names of the appellants came to be recorded by the respondent
in substitution to the names of the vendors of appellants. The customer code
allotted to the original allotees was continued in the name of the appellants.
It was agreed between the appellants and their vendors that appellants would
pay a sum of Rs. 18,07,100 to the original allotees and the balance amount
of Rs.34,27,050 to the respondent as and when demanded by the respondent.
In furtherance of the same and on payment to the original allotees, the fact
of such sale of shares was intimated to the respondent.
      3 Subsequent to the aforesaid circumstance, respondent raised a
demand on the appellants and accordingly the amount was paid which was
outstanding as on the date of demand. The respondent issued the receipt
and also allotment letter allotting commercial space in “Vipul Business
398          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


Park” – 105 and thereafter re-allotted unit No.814 on 8th Floor for a sale
consideration of Rs.51,51,415. This unilateral change was objected to by the
appellants and in response to the same, the respondent threatened to forfeit
the amount paid till date and also to cancel the allotment of the office space.
      4 Respondent forwarded a buyer’s agreement to the appellant and
called upon them to return the same after signing and same was duly
complied under the circumstances that prevailed. The respondent had agreed
to deliver possession of the premises to the appellants within 24 months
from the date of execution of such agreement and for reasons unknown,
the same was not delivered. In the interregnum, appellants continued to
pay instalments as and when demands were raised by the respondent (same
has been denied by respondent). As per the statement of account issued by
the respondent to the appellants, they have acknowledged total receipt of
Rs. 50,28,122/- and payment of Rs.81,995/- made towards service tax was
not reflected in the statement of accounts. As per the payment schedule
forwarded by the respondent to the appellants, a sum of Rs.2,47,148/- was
due and payable to the respondent by the appellants within 30 days from
the date of possession notice, which was not issued.
      5 On account of non-intimation about delivery of possession of
the office space unit allotted to the appellants and the inaction of the
respondent in not delivering possession of the office space allotted, the
appellants approached the National Consumer Redressal Commission at
New Delhi by filing a complaint, which was preceded by issuance of a
legal notice whereunder the appellants demanded refund of Rs.51,10,117/-
and interest @ of 18% P.A. amounting to Rs.42,52,143/- after terminating
the buyer’s agreement dated 27.11.2009. A further sum of Rs.50 lakhs
was also claimed towards mental agony. The Commission by impugned
order dated 11.05.2015, dismissed the complaint in limine on the ground
of maintainability holding that appellants are not ‘consumers’ as defined
under Section 2(1)(d) of the Act as appellants were already carrying on
business for the purposes of their livelihood and therefore, it cannot be said
that the property which was the subject matter of the complaint before the
Commission was being purchased by them exclusively for the purposes of
earning livelihood by way of self-employment. The Commission also opined
that Commercial space booked by the appellants was for earning profit and
      ROHIT CHAUDHARY & ANR. v. M/S VIPUL LTD.                             399
                [ARAVIND KUMAR, J.]

not for the purpose of earning livelihood by way of self-employment by
relying upon the statement of first appellant recorded by the Commission.
Hence the appeal.
      6 We have heard the arguments of Shri Digendra Sharma, Mr. Ajay
Kumar Singh, Mr. Anubhav Bhandari and Mr. Niharika Dubey, learned
counsel appearing for the appellants and Mr. M.R. Shamshad, Mr. Atul
Sharma, Mr. Ankur Sharma and Mr. Alok Tripathi, learned counsel appearing
for the respondent.
      7 It is the contention of the learned counsel appearing for the appellants
that the Commission had erred in not appreciating the fact of appellants
having booked the commercial space only for the purpose of earning
livelihood by way of self-employment and not for the purposes of reselling
or making profit due to escalation of price as pleaded in the complaint; in
the statement that came to be recorded by the Commission, nowhere it has
been stated by the appellants that commercial space booked by them was
for the purpose of making profit and mere running of a dealership business
of Reliance Industries and engaging themselves in business of investment
in property, perse would not indicate or suggest that appellants intended
to sell the same; the appellants though had approached the respondent for
delivery of possession of the commercial space allotted to them, till date
it was not delivered and silence on the part of the respondent had caused
mental agony, frustration and depression to the appellants; the unilateral
change of the office unit from Third floor to Eighth floor without consent
of the appellants and forwarding a unilateral agreement and forcing the
appellants to sign the same, by receiving all payments would tantamount to
deceptive practice and falls within the meaning of ‘unfair trade practice’ as
defined under the Consumer Protection Act; inordinate delay on the part of
the respondent in completing the project and handing over possession of the
office space allotted to the appellants has resulted in appellants undergoing
serious mental agony and as such they should be compensated as prayed
for in the complaint.
      8 Rebutting the said contentions, learned counsel appearing for the
respondent Mr. M.R. Shamshad, Mr. Atul Sharma, Mr. Ankur Sharma and
Mr. Alok Tripathi, has supported the impugned order and has contended
that appellants would not fall within the four corners of the definition of
400          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


‘consumer’ as defined under Section 2(1)(d) of the Act and the statement
of the appellant No.1 recorded on oath by the commission while hearing
the maintainability of the complaint, clearly shows that first appellant was
earlier engaged in the business of caustic soda as a dealer of M/S Reliance
Industries and presently engaged in the business of investments/dealing
in property, and this would indicate that appellants were already engaged
in the business and therefore, the property in question could not be said to
be bought exclusively by the appellants for the purpose of earning their
livelihood by self-employment and as such, the order of dismissal would not
call for interference. He would elaborate his submissions by contending that
appellants are already engaged in the business and the Act would exclude
those persons who avail services for commercial purposes and the office
space was not purchased by the appellants exclusively for the purpose of
earning livelihood; the complaint does not disclose any cause of action
and it also ought to have been dismissed for suppression of fact namely the
appellants having defaulted in the payments. Accordingly, he has sought
for dismissal of the appeal.
                 DISCUSSION AND OUR FINDINGS:
      9 The National Commission at the outset considered the question as
to whether the appellants are “Consumer” and answered in the negative. It
has been held that appellants would not be entitled to seek redressal of their
grievance under the provisions of the Act. On the basis of the statement of
the complainant made before it, the Commission has arrived at a conclusion
that complainant No.1 was running a dealership business of M/s. Reliance
Industries for their livelihood and they are also engaged in the business
of investment in property. Hence, the commercial space booked by the
complainants cannot be said to be for the purposes of earning livelihood
by self-employment or in other words the appellants are not consumers as
defined under Section 2(1)(d) of the Act. In this background it would be
necessary to note Section 2(1)(d) of the Act and it reads as under:
      “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
      ROHIT CHAUDHARY & ANR. v. M/S VIPUL LTD.                          401
                [ARAVIND KUMAR, J.]

     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) 12 [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 12 [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
     13 [but does not include a person who avails of such services for any
     commercial purpose];
                                                (Emphasis supplied by us)
      10. The aforesaid definition has received the attention of the National
Commission in the case of Synco Textiles Pvt. Ltd. Vs. Greaves Cotton
and Company Ltd. reported in 1990 SCC OnLine NCDRC 3 : (1991) 1 CPJ
499 and approved by this Court in Lilavati Kirtilal Mehta Medical Trust
v. Unique Shanti Developers and others (2020) 2 SCC 265. Whereunder
this Court has followed the principles laid down in Laxmi Engineering
Works v. P.S.G. Industrial Institute (1995) 3 SCC 583 whereunder it
came to be held:
     “10. A review of the provisions of the Act discloses that the quasi-
     judicial bodies/authorities/agencies created by the Act known as
     District Forums, State Commissions and the National Commission
     are not courts though invested with some of the powers of a civil
     court. They are quasi-judicial tribunals brought into existence to
     render inexpensive and speedy remedies to consumers. It is equally
     clear that these forums/commissions were not supposed to supplant
     but supplement the existing judicial system. The idea was to provide
     an additional forum providing inexpensive and speedy resolution
     of disputes arising between consumers and suppliers of goods and
     services. The forum so created is uninhibited by the requirement of
     court fee or the formal procedures of a court. Any consumer can go
     and file a complaint. Complaint need not necessarily be filed by the
402           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      complainant himself; any recognized consumers’ association can
      espouse his cause. Where a large number of consumers have a similar
      complaint, one or more can file a complaint on behalf of all. Even the
      Central Government and State Governments can act on his/their behalf.
      The idea was to help the consumers get justice and fair treatment in
      the matter of goods and services purchased and availed by them in a
      market dominated by large trading and manufacturing bodies. Indeed,
      the entire Act revolves round the consumer and is designed to protect
      his interest. The Act provides for “business-to-consumer” disputes
      and not for “business-to-business” disputes. This scheme of the Act,
      in our opinion, is relevant to and helps in interpreting the words that
      fall for consideration in this appeal.
      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 a person who buys such goods for resale or for any commercial
      purpose. The expression ‘resale’ is clear enough. Controversy has,
      however, arisen with respect to meaning of the expression “commercial
      purpose”. It is also not defined in the Act. In the absence of a definition,
      we have to go by its ordinary meaning. ‘Commercial’ denotes
      “pertaining to commerce” (Chamber’s Twentieth Century Dictionary);
      it means “connected with, or engaged in commerce; mercantile; having
      profit as the main aim” (Collins English Dictionary) whereas the word
      ‘commerce’ means “financial transactions especially buying and selling
      of merchandise, on a large scale” (Concise Oxford Dictionary). The
      National Commission appears to have been taking a consistent view
      that where a person purchases goods “with a view to using such goods
      for carrying on any activity on a large scale for the purpose of earning
      profit” he will not be a ‘consumer’ within the meaning of Section 2(d)
      (i) of the Act. Broadly affirming the said view and more particularly
      with a view to obviate any confusion — the expression “large scale”
      is not a very precise expression — Parliament stepped in and added
ROHIT CHAUDHARY & ANR. v. M/S VIPUL LTD.                            403
          [ARAVIND KUMAR, J.]

the explanation to Section 2(d)(i) by Ordinance/Amendment Act,
1993. The explanation excludes certain purposes from the purview
of the expression “commercial purpose” — a case of exception to an
exception. Let us elaborate: a person who buys a typewriter or a car
and uses them for his personal use is certainly a consumer but a person
who buys a typewriter or a car for typing others’ work for consideration
or for plying the car as a taxi can be said to be using the typewriter/
car for a commercial purpose. The explanation however clarifies that
in certain situations, purchase of goods for “commercial purpose”
would not yet take the purchaser out of the definition of expression
‘consumer’. If the commercial use is by the purchaser himself for the
purpose of earning his livelihood by means of self-employment, such
purchaser of goods is yet a ‘consumer’. In the illustration given above,
if the purchaser himself works on typewriter or plies the car as a taxi
himself, he does not cease to be a consumer. In other words, if the
buyer of goods uses them himself, i.e., by self-employment, for earning
his livelihood, it would not be treated as a “commercial purpose” and
he does not cease to be a consumer for the purposes 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 purchases an auto-rickshaw, a car or a lathe machine
404           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      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. The ambiguity in the meaning of the words “for
      the purpose of earning his livelihood” is explained and clarified by
      the other two sets of words.
      15. In Lucknow Development Authority v. M.K. Gupta [(1994) 1
      SCC 243] the question was whether a public authority engaged in
      constructing and selling houses can be said to be rendering a ‘service’
      and whether the person purchasing such houses can be called a
      ‘consumer’ within the meaning of the said definition. While answering
      the question in the affirmative, a Bench of this Court (Kuldip Singh
      and R.M. Sahai, JJ.) also examined the scheme and object of the Act
      and the ambit of the definition of the expression ‘consumer’. The
      following observations are apposite: (SCC pp. 251-54, paras 2 and 3)
            “To begin with the preamble of the Act, which can afford useful
      assistance to ascertain the legislative intention, it was enacted, ‘to
      provide for the protection of the interest of consumers’. Use of the word
      ‘protection’ furnishes key to the minds of makers of the Act. Various
      definitions and provisions which elaborately attempt to achieve this
      objective have to be construed in this light without departing from the
      settled view that a preamble cannot control otherwise plain meaning of
      a provision. In fact the law meets long-felt necessity of protecting the
      common man from such wrongs for which the remedy under ordinary
      law for various reasons has become illusory.
                                        ***
            The word ‘consumer’ is a comprehensive expression. It extends
      from a person who buys any commodity to consume either as eatable
      or otherwise from a shop, business house, corporation, store, fair
      price shop to use of private or public services. In Oxford Dictionary
      a consumer is defined as, ‘a purchaser of goods or services’. In
      Black’s Law Dictionary it is explained to mean, ‘one who consumes.
      Individuals who purchase, use, maintain, and dispose of products and
      services. A member of that broad class of people who are affected by
      pricing policies, financing practices, quality of goods and services,
ROHIT CHAUDHARY & ANR. v. M/S VIPUL LTD.                             405
          [ARAVIND KUMAR, J.]

credit reporting, debt collection, and other trade practices for which
State and Federal Consumer Protection Laws are enacted.’ The Act
opts for no less wider definition. It reads as under:
     ‘ “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;
     Explanation.— For the purposes of sub-clause (i), “commercial
purpose” does not include use by a consumer of goods bought and
used by him exclusively for the purpose of earning his livelihood, by
means of self-employment;’
It is in two parts. The first deals with goods and the other with services.
Both parts first declare the meaning of goods and services by use of
wide expressions. Their ambit is further enlarged by use of inclusive
clause. For instance, it is not only purchaser of goods or hirer of
services but even those who use the goods or who are beneficiaries of
services with approval of the person who purchased the goods or who
hired services are included in it. The legislature has taken precaution
not only to define ‘complaint’, ‘complainant’, ‘consumer’ but even to
mention in detail what would amount to unfair trade practice by giving
an elaborate definition in clause (r) and even to define ‘defect’ and
‘deficiency’ by clauses (f) and (g) for which a consumer can approach
406          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      the Commission. The Act thus aims to protect the economic interest
      of a consumer as understood in commercial sense as a purchaser of
      goods and in the larger sense of user of services.
      21. We must, therefore, hold that:
      (i) The explanation added by the Consumer Protection (Amendment)
      Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18-
      6-1993 is clarificatory in nature and applies to all pending proceedings.
      (ii) Whether the purpose for which a person has bought goods is
      a “commercial purpose” within the meaning of the definition of
      expression ‘consumer’ in Section 2(d) of the Act is always a question
      of fact to be decided in the facts and circumstances of each case.
      (iii) A person who buys goods and uses them himself, exclusively for
      the purpose of earning his livelihood, by means of self-employment
      is within the definition of the expression ‘consumer’.”
      11. A plain reading of the expression “consumer” indicates that any
person who buys any goods for consideration which has been paid or
promised or partly paid and partly promised under any system of deferred
payment and includes any user of such goods other than the person who buy
such goods. 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 or services for resale or for any commercial purpose. It is
amply clear from the above definition that the Parliament has excluded from
the scope of ‘Consumer’ for igniting proceedings under the Act, a person
who obtains goods or services for re-sale or for any commercial purpose.
Going by the plain dictionary meaning of the words used in the definition
section the intention of Parliament must be understood to be to exclude from
the scope of the expression “consumer” any person who buys goods for the
purpose of their being used in any activity engaged on a large scale for the
purpose of making profit. The words ‘for any commercial purpose’ must
be understood as covering the cases other than those of resale of the goods.
Thus, it is obvious, that Parliament intended to exclude from the scope of
definition not merely persons who obtain goods for resale but also those who
purchase goods with a view to using such goods for carrying on any activity
      ROHIT CHAUDHARY & ANR. v. M/S VIPUL LTD.                           407
                [ARAVIND KUMAR, J.]

on a large scale for the purpose of earning profit. Thus, persons buying goods
either for resale or for use in large scale profit making activity will not be
a consumer entitled to protection under the Act, which would be a plain
interpretation of this definition clause. The intention of the Parliament as
can be gathered from the definition section is to deny the benefits of the Act
to persons purchasing goods either for purpose of resale or for the purpose
of being used in profit making activity engaged on a large scale.
      12. The expression ‘commercial purpose’ has not been defined under
the Act. In the absence thereof we have to go by its ordinary meaning.
‘Commercial’ denotes “pertaining to commerce” (chambers 20th Century
dictionary); it means ‘connected’ with or engaged in commerce; mercantile;
“having profit as the main aim” (Collin’s English Dictionary); relate to or is
connected with trade and traffic or commerce in general, is occupied with
business and commerce. The Explanation (added by Consumer Protection
(Amendment) Act 50 of 1993 (replacing Ordinance of 24 of 1993 w.e.f.
18.06.1993) excludes certain purposes from the purview of the expression
‘commercial purpose’- a case of explanation to an exception to amplify
this definition by way of an illustration would certainly clear the clouds
surrounding such interpretation. For instance, a person who buys a car for
his personal use would certainly be a consumer, but if purchased for plying
the car for commercial purposes namely as a taxi, it can be said that it is
for a commercial purpose. However, the Explanation clarifies that even
purchases in certain situations for ‘commercial purposes’ would not take
within its sweep the purchaser out of the definition of expression ‘consumer’.
In other words, if the commercial use is by the purchaser himself for the
purpose of earning his livelihood by means of self-employment, such
purchaser of goods would continue to be a ‘consumer’. This court in the
case of Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers
(supra), has held that a straight jacket formula cannot be adopted in every
case and the broad principles which can be curled out for determining
whether an activity or transaction is for a commercial purpose would depend
on facts and circumstances of each case. Thus, if the dominant purpose
of purchasing the goods or services is for a profit motive and this fact is
evident from record, such purchaser would not fall within the four corners
of the definition of ‘consumer’. On the other hand, if the answer is in the
negative, namely if such person purchases the goods or services is not for
408           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


any commercial purpose and for one’s own use, it cannot be gainsaid even
in such circumstances the transaction would be for a commercial purpose
attributing profit motive and thereby excluding such person from the
definition of ‘consumer’. When there is an assertion in the complaint filed
before the Consumer Court or Commission that such goods are purchased
for earning livelihood, such complaint cannot be nipped at the bud and
dismissed. Evidence tendered by parties will have to be evaluated on the
basis of pleadings and thereafter conclusion be arrived at. Primarily it
has to be seen as to whether the averments made in the complaint would
suffice to examine the same on merits and in the event of answer being in
the affirmative, it ought to proceed further. On the contrary, if the answer
is the negative, such complaint can be dismissed at the threshold. Thus, it
would depend on facts and circumstances of each case. There cannot be any
defined formula with mathematical precision to examine the claims for non-
suiting the complainant on account of such complaint not falling within the
definition of the expression ‘consumer’ as defined under Section 2(1)(d).
      13. Now turning our attention to the facts on hand, namely, perusal of
the complaint filed before the Commission would indicate that appellants
have specifically pleaded that they were in search of office space “for their
self-employment and to run their business and earn their livelihood”.
In the statement recorded on oath by the Commission, while hearing the
maintainability of the complaint, the first appellant has stated that he was
earlier engaged in the business of caustic soda as a dealer of M/S Reliance
Industries and presently engaged in the business of investment/dealing in
property. He has nowhere stated that he had proposed to purchase the office
space from the respondent for the purpose of either selling the same for
higher price or the said property was being purchased as an investment for
being sold in future. The statement of the appellant was that he engaged in
the business of investment/dealing in property would not ipso facto suggest
or indicate the property proposed to be purchased from the respondent
was for commercial purpose. Even according to the statement of the first
appellant, he was earlier engaged in the business of castic soda and now
engaged in the business of investment/dealing in property. There will be
varied eventualities. By way of illustration it can be noted that the appellants
might have intended to take this property for running their business to eke
      ROHIT CHAUDHARY & ANR. v. M/S VIPUL LTD.                            409
                [ARAVIND KUMAR, J.]

out their livelihood or open the office for the purposes of dealing in the
existing business or the possibility of the proposed office being used as a
corporate office or head office or branch office of their existing business
which cannot be ruled out. It is in this background the averment made in
paragraph 6 of their complaint filed before the Commission would acquire
significance and the relevant averment has been noticed hereinabove and
at the cost of repetition when perused it would clearly indicate that when
the appellants were in search of office space “for their self-employment
and to run their business and earn their livelihood” they had entered into
an agreement to purchase the same from the original allotees. Neither this
plea nor the statement made on oath recorded by the Commission would
belie the stand of the appellants that they intended to purchase the office
space for their livelihood. In this scenario, the finding recorded by the
Commission in Paragraph 8 of impugned order is erroneous and contrary
to the definition clause of the expression “consumer” as defined under
section 2(1)(d).
      14. It is an undisputed fact that respondent has agreed to sell the
office space in the Vipul Business Park to the appellants. Record would
also disclose that in all the appellants paid Rs.51,10,117/- or respondent
had received the said amount from the appellants. Though, a faint attempt
has been made by the appellants to contend that there was unilateral change
namely the respondent had agreed to sell the office space 306 at third floor
to office space No.814 in 8th floor, we are not inclined to entertain the said
plea in as much as the agreement has been duly signed by the appellants and
in token of having accepted the same they have affixed their signatures to
the said agreement and it is too late in the day for the appellants to retrace
their steps on this issue. The said contention stands rejected.
     15. Clause 15 of the buyer’s agreement would clearly indicate that the
possession of the premises was agreed to be delivered within 24 months
from the date of agreement which undisputedly had not taken place, or in
other words the allotted office space was not delivered even after expiry
of 24 months from the date of agreement. In fact, in the counter affidavit
filed by the respondent an evasive denial has been made by contending
that permissive possession of the commercial space had been offered
410          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


by the respondent to the appellants. However, it is not pleaded that the
commercial space allotted to the appellants is ready for occupation. The
statement of account dated 28.01.2014 forwarded to the appellants by the
respondent would indicate the receipt of payment of Rs.51,10,117/- by the
respondent. Though, respondent has received the payment towards service
tax, same is not reflected in the statement of account. Be that as it may. On
account of inaction of the respondent in not complying with their demand,
appellants got issued a legal notice calling upon the respondent to refund
Rs.93,62,025/- which is inclusive of the principal amount of Rs.51,10,117/-
and Rs.42,52,143/- towards interests accrued thereon calculated @ 18% per
annum and also demanded compensation of Rs.50,000,00/- towards mental
agony by terminating the agreement.
       16. In the normal course, we would have remitted the matter back to the
Commission for adjudicating the complaint on merits in the light of finding
recorded hereinabove. However, we desist from this attractive proposition
for reasons more than one. Firstly, the dispute relates back to the year 2006;
secondly, the appellants have already repudiated the contract. Hence, in this
background directing the respondent to execute the sale deed in respect of the
office premises would not arise, which is also not the claim of the claimant
and only prayer which can be considered for being examined would relate
to refund of the amount. It is not in dispute that in all the respondent has
received a sum of Rs.51,10,117/- which is also admitted by the respondent
in its counter affidavit but contending that instalments which was due and
payable had not been remitted on time and as such interest is payable on the
delayed payments. However, the receipt of the amount of Rs. 51,10,117/- is
not disputed by respondent. There being no plea with regard to the building
or commercial complex being ready for being occupied, having been raised
by the respondent in its counter affidavit and the communication dated
25.01.2016 also not disclosing that the office premises proposed to be sold in
favour of the appellants being ready to be occupied but only evidencing the
fact that the permissive possession of premises was being offered, it cannot
be presumed that possession of office premises which is ready to offer was
being delivered to the appellants. Hence, to balance the equities, it would
be appropriate to direct the respondent to refund the amount it has received
from appellants with interest calculated @ 12% per annum which would
       ROHIT CHAUDHARY & ANR. v. M/S VIPUL LTD.                           411
                 [ARAVIND KUMAR, J.]

not only meet the ends of justice but would also offset the interest loss if at
all, if any caused to the respondent on account of delayed payments of the
instalments by the appellants and keeping in mind the appreciated value
of the asset namely office premises which was proposed to be sold by the
respondent to the appellant.
      17. For the reasons afore-stated we allow this appeal, set aside the
order dated 11.05.2015 passed by the National Consumer Disputes Redressal
Commission in consumer complaint No.276 of 2015 and allow the complaint
in part by directing respondent to refund sum of Rs.51,10,117/- with interest
@ 12% per annum from the date of complaint till date of payment with
litigation cost of Rs. one lakh.




Headnotes prepared by:                                          Appeal allowed.
Ankit Gyan