C. VISWANATH

1. The present Appeal is filed by the Appellant under Section 19 of the Consumer Protection Act, 1986 against Order passed by the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the “State Commission”) in CC No. 229 of 2018 dated 02.04.2018.

    

2. In the Complaint case, Appellants/Complainants booked an office space for earning their livelihood vide booking No. ETO/B/1184, admeasuring 300 sq. ft. in the project “Earth Tech One”, being the Unit Type as “ETO 300” for IT/ITES at 8^th Floor, Plot No.1, Sector-Tech Zone, Greater Noida, UP in 2012 and for the said purpose the Appellants deposited Rs.1,50,000/- on 04.12.2012 and Rs.13,10,133/- on 04.07.2013. On 18.07.2013, Memorandum of Understanding(MOU) was also executed between the Appellants and Respondent No.1. It was submitted that at the time of booking the said office space, as well as per Memorandum of Understanding, Respondent No.1 had given assurances to the Appellants to pay assured returns payable on monthly basis, but the Appellants had received only Rs.3,44,222/- till September 2015.Respondent No.1 was also deficient in handing over the possession of the office space booked by the Appellants. Complaint, was therefore, filed by the Appellants before the State Commission alleging deficiency in service on the part of Respondent No.1. Complaint was listed for admission hearing before the State Commission on 21.03.2018.

1. State Commission, vide order dated 02.04.2018, dismissed the Complaint on the ground that transactions involving assured returns are indisputably commercial. They fortified their decision quoting the decision of this Commission in Rishi Malhotra Vs. Blue Coast Infrastructure Development Pvt. Ltd. & Ors., where it was held that if the transaction done is coupled with assured returns, it would be treated as for commercial purpose.The State Commission further ordered that if the Appellants desire, they can agitate the matter before the Fora having jurisdiction to hear and adjudicate the issues involved in this case.

    

2. Being aggrieved by the order passed by the State Commission, the Appellants filed the present Appeal before this Commission.

1. Heard the Learned Counsel for the Appellants. The Counsel advanced the arguments as stated above.Also carefully perused the order of the State Commission and other record.

1. It was clearly stated in the Memorandum of Understanding, that Respondent No.1 had to pay Rs.15,000/- per month to the Appellants from April 2014 to September 2015 or till the date of offer of possession, which is later.The assured return paid by Respondent No.1 to the Appellants, till offer of possession, in our considered view, does come under the preview of commercial transaction. If the assured return was paid beyond the offer of possession and the criteria for booking the office space was to get a return on investment rather than for livelihood, then it would come under the preview of commercial transaction.

    

2. Section 2(1)(d) of the Consumer Protection Act, 1986 reads as under:-

   “(d)  "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;”

    

3. The Appellants are covered by the explanation that commercial purpose does not include service availed by a person exclusively for the purpose of earning his livelihood by means of self-employment.In para 1 of their complaint before the State Commission, they have clearly mentioned that “the complainant no. 1 is a retired man looking for opportunities to start his own business to earn his livelihood and Complainant No. 2 is a housewife.That the Complainants do not have a son and are currently relying on their savings to meet out their expenses.Therefore, the Complainants, to earn start a business and earn their livelihood, booked an office space with the Opposite Parties.”

    

4. In CC No. 369/2015, referred by the State Commission, the case is clearly a commercial transaction, where the Opposite Party has committed monthly return of Rs.250/- per sq. ft..The units booked by the complainants were commercial property and were supposed to be used for commercial purpose and hence the Complainant was not a consumer as envisaged under section 2(1)(d) of the Consumer Protection Act, 1986.The possession of the property was to be handed over to the Complainant on or before 08.02.2014, whereas as per the agreement lease of the unit was to continue until September 2077.This was a case where the Complainant was not purchasing the property for earning his livelihood but as investment for making profit and therefore, has been treated as a commercial transaction.

    

5. The facts and circumstances of the present case are totally different.The Appellants are retired persons wanting to make a livelihood booked an office space for starting a business.The entire consideration amount for purchasing the office space was only Rs.20,33,500/- plus other charges and taxes.To dub this transaction as a commercial transaction does not appeal to us.We therefore, allow the Appeal filed by the Appellants.

    

6. In view of the above, we allow the Appeal filed by the Appellants and set-aside the order passed by the State Commission at admission hearing.The case is remanded back to the State Commission for further hearing on merits. Appellants are directed to appear before the State Commission on 25.04.2019.