ORDER

Complaint under  Sec.12 of the CPA 1986 as amended upto date

Ms. Nipur Chandna, Member

          The complainant booked office space in OP’s project named “Earth tech one” at Plot No. 1, Sector Tech Zone, Greater Noida by paying earnest money of Rs.1,40,760/- vide cheque no. 937571 dated 17.07.2013, which was duly acknowledge by the OP .  It is alleged by the complainant that on his visit at the proposed sight he found that there was no demarcation or construction activity on the aforesaid sight.  It is further alleged by the complainant that as the project has not made any headway, he applied for the refund of the earnest money deposited by him through the pre-printed application form on 7.8.2013 with the OP .  The complainant on various occasion requested the OP for the refund of the earnest money.  But of no avail.  The complainant on 16.5.2014 wrote a final request letter to the OP for the refund of money.  But all in vain, complainant therefore, approached this Forum for the redressal of his grievance.

      OP has contested the complaint and has filed a written statement.  It has claimed that the present complaint is not maintainable under the Consumer Protection Act as the complainant does not come within the definition of the consumer as per Section 2(1)(d) of the C P Act 1986 and prayed for the dismissal of the complaint.

     Both the parties have filed their evidence by way of affidavits.

     We have heard arguments advanced at the bar and have perused the record.

     The counsel for the OP has contended that the complainant had booked an office space in its project named as Earth Tech One “at plot no. 1, Sector Tech Zone, Greater Noida and the said space is obviously booked for commercial purpose.  He has therefore, prayed for he dismissal of the complaint on this sole ground only.

     We are in agreement with the contention of the counsel for the OP .  the complainant has placed on record the copy of booking application Form i.e. Annexure CW1/A the bare perusal of the same shows that the complainant had booked an office space in the project of the OP . 

“Expression Consumer has been defined under Section 2 ( 1) (d) of the Act.  Clause (ii) thereof which is material, reads thus:-

“(d)   ‘consumer means any person who, -

(i)………….

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, of 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 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 his livelihood by means of self-employment;”.

     The complainant has now where pleaded in the complaint as well as in his affidavit that the office space was purchased by him for earning his livelihood by means of self employment within the meaning of said explanation.

     The present complaint is therefore not maintainable under the act.  Complaint being not falling within the definition of “Consumer”.

      In view of the settled law laid down by the Apex Court, the present complaint is liable to the dismissed.  However while dismissing the complaint is not maintainable, we reserve the right of the complainant to approach the appropriate Civil Court to seek his remedy.

          Copy of the order be made available to the parties as per rule.

 File be consigned to record room.

          Announced in open sitting of the Forum on.....................