PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This complaint was originally filed against M/s DLF Universal Ltd. on behalf of an unregistered association, namely, DLF Towers Okhla Owners Association. The institution of complaint by an unregistered Association was objected to. The individual allottees thus moved an application for being substituted as complainants in place of unregistered Association. The application was allowed by order dated 17.1.2012 and individual allottees were substituted as complainants in place of the unregistered Association. 2. Shorn off unnecessary details, facts relevant for the disposal of the objection to maintainability of the consumer complaint are that the instant complaint has been filed on the allegations of deficiency in service on the part of the opposite party in respect of the alleged allotment of commercial spaces like shop and office etc. to the respective complainants in the project of the opposite party to construct commercial tower known as “DLF Towers”, Okhla, New Delhi. It is the case of the respective complainants that persuaded by the misrepresentation of the opposite party they had booked commercial spaces of varying areas between 500 sq. ft. to 6000 sq. ft. at the rate of varying from Rs.15000 to 17000 per sq. ft. The respective bookings were done by making initial payments on different dates of March, 2008. According to the complainants in all they have cumulatively paid more than 100 Crores to the opposite party but the opposite party has failed to fulfill its part of the contract by failing to provide shops and office spaces to the complainants by completing the project after obtaining requisite sanctions from various Government authorities. The complainants have, thus, prayed for the refund of the amount paid by them with 18% interest thereon from the date of filing of application till the date of refund of money besides compensation of Rs.2 Lakhs to each of the complainants and Rs.15,000/- as cost of litigation to each of the complainants. 3. The opposite party in its written statement apart from the pleas on merits has taken a preliminary objection that the instant complaint is not maintainable because the complainants are not the consumers as envisaged in the definition of “Consumer” under Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”). 4. For deciding the above objection to maintainability of the complaint it is necessary to have a look on the definition of the word “Consumer” as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 which 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 but does not include a person who avails of such services for any commercial purposes; Explanation.— For the purposes 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 his livelihood by means of self-employment” 5. On reading of the above definition it is evident that a person is a consumer who buys any goods for consideration or hires any services for consideration and also includes a user of such goods or a beneficiary of such services. To this vide definition the section itself provides an exclusion and it excludes a person from the definition of consumer who obtains such goods for resale or any commercial purpose or who avails services of any description free of charge or under a contract of personal service for any commercial purpose. The legislature has also provided for a further exception by providing the explanation envisaging that commercial purpose does not include use by a person of 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. 6. In the light of above definition, learned counsel for the opposite party has contended that admittedly the complainants had booked commercial spaces like office/shops etc. in a project undertaken by the opposite party to construct commercial towers known as “DLF Towers”, Okhla, New Delhi. Thus, the complainants having booked spaces for commercial purpose are excluded from the definition of consumer and as such they cannot maintain the consumer complaint under the Act. Learned counsel for the complainants on the contrary has contended that though the complainants have booked commercial spaces in the tower they are not excluded from the definition of consumer in view of the explanation to Section 2 (1) (d) which defines commercial purpose and excludes the person who bought the goods or hired the services exclusively for the purpose of earning his livelihood by means of self-employment. 7. We have considered the rival contentions and perused the record. On going through the complaint we do not find merit in the contention of learned counsel for the complainants. Perusal of the complaint would show that the instant complaint has been filed on behalf of 92 allottees in the tower which was proposed to be constructed by the opposite party. The complainants are trying to seek shelter of bald plea in the complaint that they have booked the commercial spaces in the tower for earning their livelihood by means of self-employment. Merely taking of a plea will not entitled the complainants to get the benefit of the explanation which carves out an exception for the person who has hired the services exclusively for earning his livelihood by means of self-employment irrespective of the fact that the service has been hired or availed for commercial purpose. It does not appeal to reason that all the 92 complainants had booked the flats in the subject tower for earning their livelihood by way of self-employment and it appears that this plea has been taken only to bring the complainants within the purview of the Consumer Protection Act. 8. Further, on perusal of the amended memo of parties it transpires that 19 out of 92 complainants named in the amended memo of parties are limited companies. It is clear that the 19 complainants being unnatural persons, the plea that they have invested the money in the project for earning livelihood by way of self-employment is not available to them. Similar is the case of several complainants who are doing business concerns run by the private individuals. In view of the above, the general plea taken by the complainants in the amended complaint that they have booked the commercial spaces with a view to earn livelihood by way of self-employment cannot be accepted and it is clear that this plea has been taken with a specific object to bring this case within the purview of the Consumer Protection Act. Thus, in our view, the complainants have booked the flats in a commercial tower, therefore, they are not covered under the definition of “Consumer” as envisaged under Section 2 (1) (d) of the Act. As such the complaint filed by them is not maintainable. 9. Looking above issue from a different angle, on reading of Section 2(1)(d) of the Act it is clear that a person who avails of services for a commercial purpose is not a consumer for the purpose of the Act. An exception, however, has been carved out to the aforesaid general provisions by providing an explanation that for the purpose of Section 2 (1) (d) commercial purpose does not include the service availed by a person exclusively for the purpose of earning his livelihood by means of self-employment. As the complainants are trying to take benefit of the above explanation which is in the nature of exception to the main provision, therefore, the onus of proving that the services were availed by respective complainants exclusively for the purpose of earning livelihood by means of self-employment is on each and every complainant. Thus, in order to succeed on the issue of maintainability each and every complainant will have to lead separate evidence to prove that he or she booked the commercial space for the purpose exclusively for earning livelihood by means of self-employment. As each and every complainant has to separately prove that he is covered by the explanation to Section 2 (1) (d), they cannot be permitted to maintain a joint complaint. Case of each complainant will have to be assessed on its own merits. Thus, this is a case of misjoinder of parties and as such a common complaint by 92 different complainants is not maintainable. 10. In view of the discussion above, we are of the opinion that the complaint filed jointly by the complainants is not maintainable in the present form. It is, therefore, rejected. The complainants, however, shall be at liberty to avail of the remedy legally available to them before appropriate forum. | 
