Case: ANJUM HUSSAIN Vs. INTELLICITY BUSINESS PARK PVT LTD

2. The appellant no.1 had booked an office space admeasuring about 440 sq.ft in a project consisting of residential units, shops and offices launched by the respondent. The Builder – Buyer Agreement was executed between the appellant no.1 and the respondent on 02.12.2013, whereunder the respondent was to deliver possession of the office unit within four years. Similar such Agreements were entered into between the appellant nos.2 to 44 and the respondent in respect of various units from the same project.3. Since the respondent had failed to honour its commitments of delivering possession in four years and as the project was still at the stage of excavation, Case No.2241 of 2018 was filed by the appellants 1 to 44 seeking refund of the amounts paid by them to the respondent along with interest and compensation. An application under Section 12(1)(c) of the Act was also filed by the appellants.4. The first listing of the case before the National Commission was on 10.10.2018 when the application moved by the appellants under Section 12(1)(c) of the Act was dealt with by the National Commission asThis complaint has been instituted for the benefit of entire class of buyers, who have booked shops/offices in a project namely ?Intellicity? consisting of residential units, shops and offices at Greater Noida. The scope of this complaint is not restricted only to the complainants. An application seeking permission in terms of Section 12(1)(c) of the Consumer Protection Act, to institute this complaint on behalf of all such buyers of commercial units, being IA/18734/2018, has also been filed, along with the complaint. It is alleged that the complainants are consumers as they had booked small shops/offices for the purpose of earing their livelihood by means of self-employment.1. As provided in Section 2(1)(d) of the Consumer Protection Act, the term ‘consumer? excludes from its ambit, a person hiring or availing services for a commercial purpose, unless he can bring his case within the four-corners of the explanation below Section 2(1)(d) of the Consumer Protection Act. A person hiring or availing services for the purpose of earning his livelihood by way of self-employment has thereby been included in the definition of ‘consumer?. Otherwise, a shop/commercial unit is deemed to be booked for a commercial purpose.2. Since the scope of the complaint is not restrict only to the complainants and encompasses all the allottees of the shops/commercial units, as is specifically stated in the complaint and is also evident from the prayers made in the compliant, seeking direction to the opposite party to refund the amount deposited by each complainant as well as other allottees along with interest and compensation, it would be maintainable as a class action only if it is alleged and shown that all the allottees of the shops/commercial units in the above referred project had booked the same solely for the purpose of the earning their livelihood by way of self-employment, meaning thereby that all the allottees intend to work themselves in these shops/commercial units and the occupation of the said units by them has to be for the purpose of earning their livelihood. A careful perusal of the complaint would show that it is not even alleged that all the allottees of the commercial units/shops in the above referred project had booked the said shops/units solely for the purpose of the earning their livelihood by way of self-employment. In the absence of such an averment in the complaint, no evidence can even be led to prove that not only the complainants but all the allottees of the shops/commercial units had booked the same solely for the purpose of the earning their livelihood by way of self-employment. Even otherwise, the complainants cannot know the purpose for which the allottees, other than the complainants had booked the shops, commercial units in the aforesaid project. The said purpose can be in the knowledge only of the concerned allottees. Therefore, this class action under Section 12(1)(c) of the Consumer Protection Act on behalf of not only the complainants but all the allottees of the shops/commercial units in the aforesaid project is not maintainable.The National Commission thus concluded that the case could not be accepted as class action and dismissed the same. It was however observed that the dismissal would not come in the way of the complainants availing such other remedies as would be open to them.6. The dismissal of the case as class action is questioned in this appeal.

Reasoning:
11. According to the National Commission, though all the appellants had a common grievance that the respondent had not delivered possession of the respective units booked by them and thus the respondent was deficient in rendering service, it was not shown how many of the allottees had booked the shops/commercial units solely for the purchase of earning their livelihood by way of self-employment.However, the National Commission in the instant case, completely lost sight of the principles so clearly laid down in the decisions referred to above. In our view, the approach in the instant case was totally erroneous.