JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          The complainant namely Smt. Anjani Dass and her brother Mr. Rajeev Chhibber booked a commercial plot with the appellant in a project namely ‘Hyde Park Arcade’ which the appellant was to develop in New Chandigarh, Mullanpur, Punjab.  Plot No. HPA-R3-SCO-032 was allotted to them for a consideration of Rs.87,19,222.42p.  They paid a sum of Rs.82,83,709.22p to the appellant in installments.  The parties then executed a Buyers Agreement dated 23.04.2014, incorporating their respective obligations and as per clause 11(a) of the said Agreement, the possession was expected to be delivered within 15 months from the date of the application for booking the said plot.  The possession of the plot having not been offered to them, they approached the State Commission by way of a consumer complaint.

2.      The complaint was resisted by the appellant on several grounds including that the plot booked by the complainants being a commercial plot, they were not consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act. 

3.      The State Commission having ruled in favour of the complainants/respondents and having directed refund of Rs.82,83,709.22p alongwith interest @ 15% per annum, compensation quantified at Rs.2 lacs for the mental agony harassment and the cost of litigation quantified at Rs.55,000/-, the complainant is before this Commission by way of this appeal. 

4.      In terms of Section 2(1)(d) of the Consumer Protection Act, the term ‘consumer’ excludes from its ambit a person who purchases goods or hires or avails services for a commercial purpose.  The explanation below Section 2(1)(d) of the Act which is in the nature of an exception to the aforesaid exclusion provides that the term ‘commercial purpose’ does not include use by a person for goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. 

5.      In order to bring their case within the four corners of the explanation, the complainants are required to prove that the commercial plot was booked by them exclusively for the purpose of earning their livelihood by means of self-employment.  Since the plot was booked jointly by two persons, it has to be proved that both of them intended to earn their livelihood by means of self-employment, in the building to be constructed on the said lot.  The case of the complainants in nutshell is that complainant no. 2 Mr. Rajiv Chhibber who was working in a bank was thinking of setting up independent work for earning his livelihood by means of self-employment after retirement from bank, and wanted to set up financial consultancy for earning the said livelihood.  However, the complainant no. 1 Mrs. Anjani Dass did not even claim that she wanted to earn her livelihood by means of self-employment in the building to be constructed on the aforesaid commercial plot.  What she alleged in the complaint was that her husband who was working in Tanjania, had retired and had decided to settle at Chandigarh and therefore, she and her husband thought of purchasing a shop for setting up a clinic in Chandigarh for earning their livelihood by means of self-employment.  She also claimed that she and her husband permanently shifted to India in 2016.  It was also alleged in para 4 of the complaint that complainant no. 2 advised complainant no. 1 that they could jointly purchase one plot and construct a building comprising of two floors wherein complainant no.2 could open a financial consultancy on the first floor and accordingly complainant no. 1 and 2 decided to purchase a plot to open clinic and financial consultancy for earning their livelihood by means of self-employment.  However, complainant no. 1 does not even claim to be a doctor.  Therefore, it is evident that the proposed clinic on the ground floor of the proposed building was to be set up only by her husband and not by her alongwith the husband.  Therefore, this is not the case of the complainants that complainant no. 1 Smt. Anjani Dass also wanted to earn her livelihood by means of self-employment in the building to be constructed jointly by the complainants on the aforesaid plot.  The use of the building by her husband cannot meet the requirements of the explanation below Section 2(1)(d) of the Consumer Protection Act since it is the consumer himself/herself who has to earn livelihood by way of self-employment in the services hired or availed by him/her.  Therefore, even if complainant no. 2 is held by a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, complainant no. 1 cannot be said to be a consumer within the meaning of the said provision.  Consequently, the State Commission did not have the requisite jurisdiction to entertain the consumer complaint and the remedy of the complainants was through means other than a consumer complaint. 

6.      For the reasons stated hereinabove, the impugned orders cannot be sustained and the same is accordingly set aside without any order as to costs.  It is however, made clear that dismissal of the complaint will not come in the way of the complainants availing such remedy other than filing a consumer complaint as may be open to them in law.