1.      Heard Mr. Madhurendra Kumar, Advocate for the complainant. and Ms. Deepati Gupta, Advocate for the opposite parties.

2.      The above complaint has been filed for directing (i) the opposite party to refund the amount of Rs.17900000/- with compound interest @ 18%; (ii) to pay Rs.2000000/- as compensation for mental agony and harassment; (iii) to pay Rs.1000000/- as cost of litigation; (iv) and any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The fact as stated by the complainant and emerged from the documents are that Delhi State Industrial and Infrastructure Development Corporation Ltd. advertised for auction for a commercial plot situated at Sector-3, Bawana Industrial Complex, Delhi in the year 2006. The complainant deposited the required amount of Rs.17900000/- and deposited in the auction which was held on 30.10.2006. The bid of the complainant for Rs.71600000/- has been accepted by the opposite party vide letter dated 13.11.2006.  The opposite party asked the complainant to deposit the balance amount within 90 days.  The complainant moved an application for extension of the period on 29.01.2007 which was accepted vide letter dated 10.02.2007 and a period of three months was extended for deposit of balance amount and interest on it.  However, the complainant could not deposit the balance amount even extended period.  The opposite party by letter dated 25.10.2007 cancelled the allotment and forfeited the earnest money deposited by the complainant and again moved an application dated 09.08.2007 for extension of 45 days, but the complainant could not deposit the amount and moved an applications dated 23.08.2008, 11.12.2015 and 16.12.2016 for cancelling the allotment and refund of initial amount deposited by him for refund of their earnest money.  The opposite party vide letter dated 20.04.2008 informs that the earnest money has been forfeited in terms of the auction and could not be refunded.  Then this complaint was filed on 15.12.2017 for refund of earnest money and other consequential relief.

4.      The opposite party filed its written reply on 29.04.2019 raising the maintainability of the complaint.  The opposite party stated that the plot in dispute was a commercial plot of 1000 sq.mt. and its auction was on the basis of “as it were it”.  It was not linked with any service, as such, the complainant was not a consumer and the complaint is not maintainable.

5.      We have considered the arguments of counsel for the parties. The word “consumer” has been defined under Section 2 (1) (d) and word “service” has been defined under Section 2 (1) (o) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which are quoted below:-

Section-2 (1) (d).- “consumer” mean 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 and partly promised, or under any system of deferred payment, when such use is made with 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 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, but does not include a person who avails such services for any commercial purpose;

Explanation.- For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning livelihood by means of self employment.

Section 2(1) (o):- “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

6.      In order to qualify the word “consumer” a person must buy goods or avail service for consideration.  Buying a goods and availing service for commercial purpose is excluded from the definition of the consumer.

7.      The complainant in the present case is not an industrial person, but a juristic person and in nowhere in the complaint it has been stated that plot in dispute was taken in auction purchase for earning a livelihood by way of self-employment.  Admittedly the plot in dispute was a commercial plot.  Therefore, the complainant is not a consumer as defined above.

8.      So far as service is concerned, the service relating to housing construction is included within the word “service” as defined under this Act. Supreme Court in UT Chandigarh Administration & anr. Vs. Amarjeet Singh & Ors., II (2009) CPJ 1 (SC) held as follows:

“12. The decisions in Lucknow Development Authority and Ghaziabad Development Authority make it clear that where a public development authority having invited applications for allotment of sites in a lay out to be formed or for houses to be constructed and delivered, fails to deliver possession by forming the lay out of sites or by constructing the houses within the stipulated period, the delay may amount to a deficiency in service by treating the development authority as a service provider and the allottee as the consumer. But where existing sites are put up for sale or lease by public auction by the owner, and the sale/lease is confirmed in favour of the highest bidder, the resultant contract relates to sale or lease of immovable property. There is no hiring or availing of services by the person bidding at the auction. Nor is the seller or lessor, a trader who sells or distributes `goods'. The sale price or lease premium paid by the successful bidder of a site, is the consideration for the sale or lease, and not consideration for any service or for provision of any amenity or for sale of any goods.

14.  ……………. ..With reference to a public auction of existing sites (as contrasted from sites to be `formed'), the purchaser/lessee is not a consumer, the owner is not a `trader' or `service provider' and the grievance does not relate to any matter in regard which a complaint can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the Fora under the Act will not have jurisdiction to entertain or decide any complaint by the auction purchaser/lessee against the owner holding the auction of sites.”

9.      The similar view has been taken by a three Member Bench of this Commission in Ashok Tayal & anr. Vs. Delhi Development Authority & Ors., II (1995) CPJ 3 (NC) and another Coordinate Bench in FA/442/2006, Delhi Development Authority Vs. M/s. Anand Estate Private Limited, (decided on 04.07.2012).  The counsel for the complainant, however, relied upon the judgment of this Commission in Revision Petition No.2951 of 2009 titled as Haryana Urban Development Authority Vs. M/s. Suneja & Sons (decided on 18.08.2011) and Revision Petition No.3498 of 2009 titled as Haryana Development Authority Vs. Haryana Petro Chemicals Ltd. and (2009) 7 SCC 282 titled as Haryana Urban Development Authority & anr. Vs. Satish Hans, which are not applicable in the fact of the case.  In the present case, the complainant is a Company and nowhere it has been stated that the commercial plot was purchased for self-employment.  The commercial plot was purchased through auction sale, which is not linked with service.  Therefore, the complainant is not a consumer and the complaint is not maintainable.  Accordingly, it is dismissed as not maintainable.