The complainant booked a shop with OP-1 DLF Universal Ltd. in Prime Towers, Okhla Phase-1 for a total consideration of Rs.6.35 crores making a part payment of Rs.60 lakhs. According to the complainant, the possession of the shop was to be delivered to him within one year. This is also the case of the complainant states that since the pace of construction was very slow, he stopped  paying further instalments, whereupon the booking was cancelled by the OP and later on he was made to pay penalty of Rs.65 lakhs. As a result of which, the payment made by him stood increased to Rs.7 crore on account of addition of the penalty amount to the agreed sale consideration of Rs.6.35 crores. The aforesaid shop was leased out by the complainant to a company, namely, Fortune Health Care Services Pvt. Ltd., for a period of 5 years on the monthly rent of Rs.4 lakhs.  The aforesaid company has obtained a licence from the Excise Department for selling liquor in the said shop. The complainant is already in possession of the aforesaid shop which stands leased out to Fortune Health Care Services Pvt. Ltd. He is before this Commission, with the following prayers:-

“(a)    Direct the respondent to refund the Rs.65,00,000/- to the complainant along with interest @ 24% p.a. from the date of payment till realization of the said amount.

(b)     Award compensation in terms of money quantified at Rs.50,00,000/- towards damages, losses, hardship, mental trauma, opportunity, loss, anxiety suffered by the complainants on account of the acts and omission and deficiency in service, negligence jointly and severally of the respondents/opposite parties as detailed in the complaint damages.

(c)     Direct the Ops jointly and severally to pay adequate compensation to each of the members of the association towards damages for the physical and mental torture, agony, discomfort and undue hardships caused to the complainant and their families as a result of the above actions of omission on the part of the OP, as this Hon’ble Commission may determine.

(d)     Direct the Ops jointly and severally to pay a sum of Rs.100000/- to each of the complainant towards the cost of litigation.”

2.      Section 2(1)(d) of the Consumer Protection Act, excludes from the ambit of the definition of consumer, a person who hires or avails the services for a commercial purpose. The explanation below section 2(1)(d) of the Consumer Protection Act, however, excludes for the purpose of said clause the use by a person, of the goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. The learned counsel for the complainant states that the shop in question was purchased by the complainant for earning his livelihood by letting out the same to Fortune Health Care Services Pvt. Ltd. and, therefore, the complainant is a consumer within the meaning of Consumer Protection Act. He further states that in future, after expiry of the tenure of the lease, the complainant can run a business in the said shop. However, the learned counsel for the complainant has not been able to point out averments to the aforesaid effect in the complaint. In the absence of said an averment in the complaint, it would be difficult to go by an oral statement made by the learned counsel. In any case, even if it is assumed for the sake of arguments that the complainant is earning her livelihood by letting out the aforesaid shop to Fortune Health Care Services Pvt. Ltd. which is running a wine shop therein, her case would not be covered under the explanation below section 2(1)(d) of the consumer Protection Act and since admittedly she is not herself running the business of selling wine in the aforesaid shop, letting out of shop which admittedly is a commercial premises, is nothing but earning income by way of rent and such an activity does not amount to using the services for earning livelihood by way of self-employment within the meaning of the explanation below section 2(1)(d) of the Consumer Protection Act.

3.      The learned counsel for the complainant refers to the liberty granted to the complainant by Competition Appellate Tribunal  in Appeal No.75 of 2015 which he had filed against the respondent. However, the liberty granted by the said Tribunal to the complainant to file  a complaint under the Consumer Protection Act does not preclude this Commission from going into the question as to whether the complainant is a consumer as defined in the Consumer Protection Act and on examining the said question, I am of the view that the complainant cannot be said to be a consumer.

4.      For the reasons stated hereinabove, the complaint is hereby dismissed. It is, however, made clear that the dismissal of the complaint shall not preclude the complainant from availing such remedy other than filing  a consumer complaint, as may be open to her in law.