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Judgment
V.K. Jain, J
The complainants booked a commercial unit with the OP in a project namely 'Central Square', which the OP was to develop at Bara Hindu Rao, Delhi and Unit No. P2-4016 was allotted to them for a consideration of Rs.83,84,000/-. The complainants claim to have already paid Rs.83,77,800/- to the OP. The possession of the said unit as per the agreement between the parties was to be delivered to the complainants by December, 2009. The possession having not been offered to them, they are before this Commission seeking refund of the amount, which they had paid to the OP, along with compensation.
The complaint has been resisted by the OP, which has taken a preliminary objection that the Unit allotted to the complainants being a commercial unit, they cannot be said to be the consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act.
It is not in dispute that the project in which the unit was allotted to the complainants was a commercial building, the same being a complex of flatted factories.
Section 2(1)(d) of the Consumer Protection Act, to the extent it is relevant provides that consumer does not include a person who obtains goods or hires services for any commercial purpose. The explanation attached below the aforesaid provision excludes from the ambit of the term 'commercial purpose', use by a person of the goods bought and used by him and the services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.
As observed by this Commission in Ashok Thapar Vs. Supreme Indosaigon Associates & Ors. CC No. 31 of 2008 decided on 19.11.2015, the explanation comes into play if the following conditions are fulfilled:
"(i) The complainant buys the property exclusively for the purpose of earning his livelihood and (ii) He employs himself i.e. he is personally engaged in the activity which is carried on in the aforesaid property."
Unless both these requirements stand fulfilled, the explanation does not come into play and the complainant cannot be said to be a consumer as defined in the Consumer Protection Act, 1986.
Para 2 of the complaint, which pertains to the preliminary objection taken by the OP, to the extent the said paragraph is relevant reads as under:
"...... That on further assurances and representations by the opposite party, the complainants decided to book a commercial unit in the above mentioned project as they wanted to utilize the same for running their own business of after school activity hub for kids / day care centre form the said premises to earn their livelihood."
Though, the OP took a preliminary objection that the complainants were not consumers, no improvement in the above noted averments was made in the rejoinder filed by the complainants. The rejoinder, to the extent it is relevant on this issue, reads as under:
"It is denied that the complainants do not fall within the definition of consumer as defined under the Act. It is denied that the complainants fall within the prohibition as alleged or otherwise. It is denied that the complainants have made any admission that they not fall within the meaning of consumer under the Act. It is denied that the averments made by the complainants regarding their livelihood are bland assertion, devoid of any substance or that the same has been made to provide a semblance of consumer dispute or that same is incorrect or unsubstantiated. It is denied that no averments have been made by the complainants concerning nature of work then by at the time of purchase of the unit."
The complainants have filed an affidavit of only one of them namely complainant No.2 Namrata Sekhri by way of evidence. The said affidavit, to the extent it is relevant on the aforesaid issue, reads as under:
"3. That the both the complainants do not own any commercial property in their name. That since March, 2008 the complainant No.1 has been helping her husband in the family business, while complainant No.2 was working as Investment Banker. That currently complainant No.2 is running the Extra Co-Curricular Activity Centre for Kids from property 19/77, West Punjab Bagh, Gate No.4, New Delhi, belonging to the father in law of complainant No.2."
"4. ..... That on further assurance and representations by the opposite party, the complainants decided to book a commercial unit in the above mentioned project as they wanted to utilize the same for running their own business of after school activity hub for Kids / day care centre form the said premises to earn their livelihood."
It would thus be seen that though the complainants have pleaded and also stated on oath, that they wanted to earn their livelihood by running an After School Activity Hub for Kids / Day Care Centre from the said premises to earn their livelihood, they have neither pleaded nor stated on oath that they intended to earn their livelihood in the aforesaid manner by way of their self-employment. It is nowhere pleaded that the complainants or even one of them intended to herself on even jointly with her staff, take care of the kids coming to the day care centre, which they proposed to start from the said premises. Though, it is alleged that the complainant No.2 is running an Extra-Curriculum activity centre for Kids from the property of her father-in-law, it is not claimed that she herself or even in association with her staff is taking care of the kids or imparting Extra-curriculum activity to them from the said property of her father-in-law. It would also be pertinent to note here that the complainant No.2 was working as an Investment Banker and does not even claim to be a trained Nursery Teacher or have any knowledge or experience of herself imparting extra-curriculum activity to the kids. As far as complainant No.1 is concerned, she according to her has been helping her husband in his business. Therefore, it is evident that neither of the complainants even claims that she intended to earn her livelihood by way of self-employment in the commercial premises, which they had booked with the OP. Therefore, one essential ingredient of the explanation below Section 2(1)(d) of the Consumer Protection Act has neither been pleaded nor proved. The complainants therefore, cannot be said to be the consumers as defined in Section 2(1)(d) of the Consumer Protection Act. Consequently, this Commission does not possess the requisite jurisdiction to entertain a consumer complaint initiated by them. The complaint is accordingly dismissed, with no order as to costs. It is however, made clear that the dismissal of the complaint shall not come in the way of the complainants availing such remedy other than a consumer complaint, as may be available to them in law for the redressal of their grievances against the opposite party.