The Consumer Complaint No.236 of 2012 has been filed by M/s. Richa & Company. As stated in para 2 therein the Complainant is a partnership Firm, registered under the Indian Partnership Act, 1932 and is engaged in the business of manufacture and export of readymade garments. The complaint is filed against M/s. DLF Universal Ltd. (formerly known as DLF Retail Developers Ltd. & DLF Commercial Complexes Ltd.) 2. The case of the Complainant is that in response to advertisements and media campaign of the respondent for sale of office/retail space in DLF Corporate Greens, Gurgaon, the Complainant made an application on 17.6.2008 for allotment of 24798 sq.ft. of office/retail space. In three cheques dated 17.6.2008, 26.6.2008 and 2.9.2008 a total of Rs.439.56 lakhs was paid to the OP, being 25% of the total sale consideration of Rs.1857.45 lakhs. 3. On 10.12.2008 the Complainant address a letter to the OP stating that they had come to know that 27.80 acres of land required for this project was under litigation, while at the time of depositing the money the Complainant was informed that there is no litigation/dispute over the land proposed for the project. Also the deposit from the Complainant was taken even before obtaining necessary licences/clearances, which was a violation of Haryana Development and Regulation of Urban Areas Act, 1975 and rules thereunder. Therefore, the complainant sought refund of the entire amount with 18% interest. 4. Details of correspondence produced on record by the complainant, show that the matter of refund remained in correspondence between the two parties and eventually on 25.1.2011 separate cancellation letters were issued by the OP. These letters conveyed that the allotment of property is cancelled, forfeiting a part of the amount. The letters also indicated that the balance amount received from the complainant would be refunded separately. 5. We have heard Mr. Arunabh Chowdhury, Advocate for the complainant. The main question that arises for our consideration is whether the transactions detailed above would fall within the meaning of the term ‘Commercial Purpose’ under Section 2(1) (d) of the Consumer Protection Act. By an amendment of this provision, which came into effect from 15.3.2003, persons purchasing goods or hiring services for a ‘commercial purpose’ have been excluded from the definition of the term ‘consumer’. 6. The term “commercial purpose” appears as an exclusion clause in the definition of “consumer” under Section 2(1)(d). Since cases of resale have been separately referred to in this clause, it becomes obvious that the words “commercial purpose” are intended to include any commercial activity, other than resale, where goods are purchased for being used in any activity directly intended to generate profit. The word “commercial” is defined as exchange of merchandise, especially on a large scale. In a commercial activity, generation of profit is the main aim. 7. Therefore, the National Commission had held in Synco Textiles Pvt. Ltd. Vs. Greaves Cotton & Co. Ltd., 1 (1991) CPJ 499 that— “It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large scale manufacturing or processing activity carried on for profit. In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the large scale activity carried on for earning profit…….The purchase of the generating sets was thus clearly for enabling the appellant company to carry on its commercial activity of manufacturing edible oils on a large scale for purposes of trade. It was submitted before us on behalf of the appellant company that the generators were only intended as a “stand-by arrangement.”. In our opinion, even if this be so, it would not make any difference because their purchase was nonetheless for the purpose of being used to generate electricity for running the expeller machinery in the factory for commercial production of edible oils. There is a close and direct nexus between the purpose of purchase of the generating sets and the commercial activity of manufacturing of edible oils for trade carried on by the appellant company, since the generating sets were intended to be used, as and when the need arose, for generating electric current for manufacture of edible oils for the purpose of trade.” 8. Interfreight Services Pvt. Ltd. Vs. Usha International 1(1995) CPJ 128 (NC) was a case of purchase of fans for installation in his commercial office. The National Commission rejected the plea that the fans were not used for any commercial purpose and observed “It appears to us to be perfectly clear that the intention of parliament in excluding persons purchasing goods for commercial purpose from the definition of the expression “consumer” is to impose a restriction that the special remedy before the Consumer Forum can be invoked only by ordinary consumers purchasing goods for their private and personal use and consumption and not business organizations buying goods for commercial purpose.” 9. This matter again came up before the National Commission in a recent case, in the specific context of purchase of a motor vehicle by a commercial undertaking in Controls & Switchgear Company Ltd. Vs. Daimler-Chrysler India Pvt. Ltd. & Anr., IV (2007) CPJ 1 (NC). M/s. Controls & Switchgear Company had filed a complaint alleging that two Mercedes Benz cars purchased by them were having manufacturing defects. They had prayed that the car should be replaced by vehicles of the same brand, or alternatively, the price paid should be refunded with interest and compensation. One of the grounds on which the respondent contested this claim was that these cars were purchased for commercial purpose and therefore, the purchaser was not a consumer. It was alleged that the complainant company had been claiming depreciation on these car, had used corporate resources for their purchase, the operational and maintenance expenditure was being incurred by the company and the enhanced mobility had direct bearing on profit earned. 10. The National Commission held that there was no substance in these contentions because the cars are purchased for the use of the Directors and are not to be used for any activity directly connected with commercial purpose of earning profit. Cars are not used for hire but are for the personal use of the Directors. Hence, it cannot be said that the complainant Company has purchased the cars for commercial purpose. 11. In a more recent case, Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. IV (2010) CPJ (NC) before this Commission the question of purchase of space for commercial purpose came up for consideration. The Commission has held in that:- “There was delay in possession. Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed. Deficiency in service was alleged. Even if private limited company was treated as ‘person’ purchase of space could not be for earning its livelihood. Purchase of space was for commercial purpose.” 12. Overtime, in the following cases the purchase has been held by the Apex Court/National Commission to be for a commercial purpose— i. Power generator to run expellers in an oil mill, ii. Moulding machine in a plastic ware manufacturing industry, iii. Air pollution control system in a ultra-blue producing industry, iv. Photo type-setting machine in a printing press, v. Oxygen plant in a hospital, vi. Purchase of a vehicle by a taxi service agency. Per contra, the following have not been considered as transactions with commercial purpose— i. purchase of a photocopier by a Typing School, ii. insurance policy taken by a commercial undertaking. 13. In the case before us, the subject matter of the consumer complaint is purchase of office/retail space from the OP. The advertisement brought out by the OP for marketing the project and the application of 17.6.2008 for allotment of 24798 sft therein, are both produced as Annexures P2 and P3 by the complainant. These documents clearly show that the project DLF Corporate Greens is about development, construction and marketing of various commercial buildings consisting of office/retail spaces and other commercial/parking spaces. In a letter of 30.11.2009 address to Managing Director, DLF Commercial Complexes Ltd., Shri Virendra Uppal, partner in the complainant firm, has even referred to booking of the entire area comprising the ninth floor of the purposed building and has agreed to take 33% additional areas provided it is on the ninth floor itself. The letter is on the subject of allotment of 24798 SFT on the ninth floor having 18 offices. (Annexure P-13). 14. Annexure P-29 is a copy of the legal notice issued by the complainant to the OP and 13 other functionaries. Para 39 of this legal notice read as follows:- “That I on behalf of my Client state that my Client had submitted the Application for allotment of the complete 9th floor of the proposed DLF Corporate Greens Project and the Application was not for individual flats in the said 9th floor. Yet, after the Application, you had unilaterally divided the said 9th floor into 18 flats. All my Client’s correspondences were for the 9th floor in the said proposed Project and my Client had applied for the 9th floor and not for the individual flats and even the payments/deposits made was for the comprehensive allotment of the 9th floor of the said Project.” 15. The counsel however, sought to rely upon the decision in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, in support his argument that the complainant is a consumer within the meaning of Section 2(1) (d) of the Consumer Protection Act and therefore the complaint is maintainable as such. 16. In the above matter before Hon’ble Apex Court, the appellant, Laxmi Engineering Works had placed an order with the respondent for supply of a universal turning central machine. The appellant’s case was that the machine was not only supplied with delay of over six months but also was a defective one. The consumer complaint of the appellant was partially allowed by the Maharashtra State Consumer Disputes Redressal Commission. The appeal filed by the respondent was allowed by the National Commission on the ground inter alia, that the machine was purchased for a commercial purpose and therefore the appellant was not a consumer within the meaning of Section 2(1) (d) of the Act. Appeal against the order of the National Commission was dismissed by the Apex Court. In our view, the facts of the complaint before us, are very different. Therefore, the complainant cannot derive any support from this decision. 17. Learned counsel alternatively argued that the transaction of purchase of commercial space was for ‘self employment’ of members of the partnership firms. Therefore, it should fall within the Explanation to Section 2(1) (d) of the Act. The explanation reads as follows:- “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.” 18. This is another issue examined by the Apex Court in the decision (Laxmi Engineering matter) citied by the counsel for the complainant. The Apex Court has observed:- “The Explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expression “used by him”, and “by means of self-employment” in the explanation. The ambiguity in the meaning of the words “for the purpose of earning his livelihood” is explained and clarified by the other two sets of words.” 19. Accordingly, the argument of self employment for a partnership firm established in the business of garment manufacture and export cannot be accepted. It is also not the case of the complainant that 24798 sft of commercial space was meant to be acquired for its non-commercial use. The complaint petition is silent, but the counsel accepted during the arguments that the entire commercial space, with agreed consideration of Rs 18.57 crore, was booked only for business purposes of the complainant firm. In our view, the only way to look at this transaction is that it was meant to be an investment for generation of profits. There is nothing on the record to suggest anything to the contrary. 20. In view of the detailed consideration above, we come to the conclusion that the transaction of booking of commercial/business space by the complainant, was for a ‘commercial purpose’ within the meaning of Section 2(1)(d) of the Consumer Protection Act. Therefore, it is held that the complainant is not a ‘consumer’. Consequently, the complaint is dismissed in limine. The complainant is permitted to seek his remedy in the court of competent jurisdiction. For the purposes of limitation, the time spent in the present proceedings shall be excluded. No costs. | 
