1.      Heard Mr. Aditya Parolia, Advocate, for the complainants and Mr. A.R. Takkar, Advocate, for the opposite party, through video conferencing.

2.      Akhilesh Kumar Naithani and Smt. Kusum Naithani (the complainants) have filed this complaint for directing M3M India Private Limited (opposite-party), (hereinafter referred to as the builder) (i) to give physical possession of Unit-1 to the complainants, complete in all respects and in conformity with agreement-1 and execute all necessary and required documents in respect of Unit-1, in favour of the complainants; (ii) to waive off delayed penalty charges imposed on the complainants by the opposite party, at interest rate of 24% per annum with respect to Unit No. 1; (iii) to hand over possession of Unit-2 and Unit-3 to the complainants, complete in all respects and in conformity with agreement-2 and agreement-3 respectively and execute all necessary and required documents in respect of said Unit-2 and Unit-3, in favour of the complainants within a period of 6 months, from the date of filing of this complaint; (iv) to pay interest @ 12% per annum, on the amount deposited by the complainants with the opposite party towards consideration of Unit-2 and Unit-3, with effect from the date of delivery of possession, promised in Agreement-2 and Agreement-3 respectively, till the date of actual possession as per clause (c) of above agreements; (v) to pay compensation of Rs. 10,00,000/- to the complainants, for mental agony and harassment, discomfort and undue hardship caused to the complainants as a result of acts and omission on the part of the opposite party  (vi) to pay Rs.1,00,000/- to the complainants as the cost of litigation and (vii) any other relief which the Commission deems fit and proper, in the fact and circumstances of the case, be passed.

3.      The facts as stated in the complaint are that the builder was a company, engaged in the business of development and construction of multi-story residential and commercial buildings and selling its unit to the prospective buyers. The builder advertised for construction of commercial complex over the revenue estate of villages Maidawas and Badshahpur, Sector-67, District Gurugram, Haryana, in the name of “M3M Urbana” in 2015. Complainant-2 is an interior designer and was working from home. She was in need to set up her own office for her business venture, for the purposes of earning their livelihood by way of self-employment. Therefore, the complainants booked three units in the project “M3M Urbana” on 30.09.2015 and opted for “Possession Linked Payment Plan”, under which 30% of sale consideration has to be paid within 30 days of booking and 70% within 30 days of the notice of possession. Provisional Allotment letters dated 30.09.2015 were issued to them, the details of which are:- (i) Unit-1- Unit No. SB/R/GL/06/21, Block-6, super area 900.65 sq. ft., total consideration of Rs.1,93,00,168/-, Buyer’s Agreement dated 24.11.2015 (Agreement-1). Promised date of possession-12 months with grace period of 6 months, from the date of agreement. Amount paid was Rs.59,85,622/-; (ii) Unit-2- Unit No. SB/R/GL/07/11, Block-7, super area 905 sq. ft., total consideration of Rs.1,95,26,720/-, Buyer’s Agreement dated 20.01.2016 (Agreement-2). Promised date of possession-24 months with grace period of 6 months, from the date of agreement. Amount paid was Rs.71,45,491/-; and Unit-3- Unit No. SB/R/GL/07/10, Block-7, super area 904.65 sq. ft., total consideration of Rs.1,76,97,696/-, Buyer’s Agreement dated 20.01.2016 (Agreement-3). Promised date of possession-24 months with grace period of 6 months, from the date of agreement. Amount paid was Rs.55,48,293/-. As at the time of booking of the Units, 30% of the sale consideration were paid as such at the time of execution of Buyer’s Agreement, the complainants were not in position of negotiation as it would have resulted in cancellation of allotment and forfeiture of booking amount i.e. 30% of sale consideration. The builder issued notice of possession dated 23.03.2017, for Unit-1, raising final demand of Rs.1,58,26,473/-. The complainants then visited the site and found that the construction work was still in progress in the area around Unit-1 and there were barriers close to Unit-1, restricting entry and exit to Unit-1. The complainants informed the builder about this situation through email dated 08.04.2017, requesting to grant time till August, 2017, to make payments towards final demand. The builder through email dated 17.07.2017 refused to accede to the said request. Thereafter, the complainants visited the office of the builder on several occasions, to deposit remaining amount and taking possession however, the builder began to demand 24% per annum interest for delayed period. The builder issued pre-cancellation notice dated 04.10.2017, showing total dues of Rs.1,62,55,919/- and asked to deposit this amount within 15 days from issue of this letter. The complainants visited the builder and requested to waive the amount of penal interest which was charged at the rate of 24% per annum. However, the builder issued letter dated 18.01.2018 cancelling the allotment. The complainants, vide email dated 31.03.2018, requested to adjust the money deposited by them for booking of Unit-2 and Unit-3, for payment of Unit-1 or permit them to sell Unit-1 and to pay its dues but no reply was given. Thereafter, the complainants sent reminder emails on 27.04.2018, 03.05.2018, 31.05.2018 and 27.09.2018. Then, the builder, through email dated 30.11.2018 informed that they were working upon the request of the complainants. The builder, vide email dated 06.03.2019, informed that the committee has acceded to the request and transferred the amounts of Unit-2 and Unit-3 to Unit-1, to reduce the liability of the interest. The complainants in the meeting on 07.03.2019 and vide emails dated 07.03.2019 and 12.03.2019 informed that almost 10 months had been taken to respond their request to adjust the amount of Unit-2 and Unit-3, for payment of Unit-1, in the meantime, they had arranged the fund and willing to retain all the three Units as such a fresh demand notice be issued, waiving payment of delayed interest. The builder then shared the account of the complainants on 16.03.2019 and informed that their request would be put up before the Committee. The complainants visited the office of the builder on 11.04.2019 and sent email on 12.04.2019, again requesting for issue of fresh demand notice of Unit-1. The builder through email dated 20.04.2019 informed that the allotment of the complainants had already been cancelled on 18.01.2018. It has been submitted that charging 24% per annum interest after March, 2017 although construction was not completed by that time and the cancellation of allotment of Unit-1 was arbitrary, illegal and unjustified. The construction of Unit-2 and Unit-3 was neither completed nor was possession offered within promised period. The builder issued possession letters dated 21.12.2019 for Unit-2 and Unit-3 and asked the complainants to deposit balance amount without obtaining Occupancy Certificate. These letters were not served upon the complainants as they were out of country at that time. Then reminders dated 06.01.2020 were issued. The complainants through email dated 18.01.2020 protested the possession notice on the ground that without obtaining Occupation Certificate, demand for balance amount was made. The builder vide email dated 27.02.2020 admitted that Occupation Certificate has not been issued but stated that the construction had been completed and they had applied for Occupation Certificate on 12.05.2017. On these allegations, this complaint was filed on 03.07.2020.                                   

4.      The builder filed its written reply on 19.10.2020 and contested the complaint. In written statement, they admitted booking of Unit-1, Unit-2 and Unit-3 by the complainants on 30.09.2015 and execution of Agreement-1 on 24.11.2015, Agreement-2 and Agreement-3 on 20.01.2016 and receiving 30% of the sale consideration. It has been stated that complainat-1 was a salaried man and complainant-2 was working from home as interior designer. Complainant-2 had her business profile on internet in the name of “Fifth Dimension Interiors”. They were earning their livelihood. The complainants booked three Units in the commercial Project, for commercial purpose as speculative investors to make profit and gain. Complainant-1, vide email dated 08.04.2017, informed that he had showed Unit-1 to six persons for leasing it and Complainant-2, vide email dated 11.04.2019, informed that she wanted to lease Unit-2 and Unit-3 to Bikanerwala on monthly rental of 7% of monthly revenue of Bikanerwala. From these emails, it is fully proved that these Units were not booked for earing livelihood by way of self-employment rather it were booked for commercial purpose. As such, the complainants are not a ‘consumer’ within the meaning of Consumer Protection Act, 1986 and the complaint is not maintainable. The construction of Unit No. SB/R/GL/06/21 (Unit-1) was completed in December, 2016 and the builder applied for issue of Occupation Certificate on 23.12.2016, which was issued on 23.02.2017. Thereafter notice for possession was sent on 23.03.2017 but the complainants did not turn up for taking possession within one month period as provided in the notice, in spite of service of the notice. As such pre-cancellation notice dated 04.10.2017 was issued. But the complainants did not respond as such having left with no option, allotment of Unit-1 was cancelled and notice of cancellation dated 18.01.2018 was given to them. Cancellation of allotment of Unit-1 was solely attributed to the complainants. Unit No. SB/R/GL/07/11 (Unit-2) and Unit No. SB/R/GL/07/10 (Unit-3) situate in Tower-7. The construction of Tower-7 was completed in May, 2017. The builder applied for issue of Occupation Certificate on 12.05.2017. The Occupation Certificate was granted on 03.07.2020. The Occupation Certificate was delayed due to litigation in High Court i.e. for the reasons beyond the control of the builder. The notices for possession were issued on 21.12.2019 to the complainants for Unit-2 and Unit-3, which were not served. Then reminders dated 06.01.2020 were issued but the complainants did not respond. After issue of Occupation Certificate on 03.07.2020, pre-cancellation notices dated 18.07.2020 were issued. In spite of service of notice, the complainants did not respond. Therefore, allotments of Unit-2 and Unit-3 were cancelled on 02.08.2020 and letter dated 02.08.2020 was issued to the complainants. There was no deficiency in service on behalf the builder. Delay in issue of Occupation Certificate in respect of Tower-7 was caused at the level of statutory authority due to pendency of litigation and was beyond the control of the builder. The complainants have remedy against the impugned cancellation of allotments before the authorities under Real Estate (Regulation and Development) Act, 2016 and this complaint was not maintainable. There is mis-joinder of causes of action inasmuch as there three separate allotment letters in respect of three Units, which were cancelled by three separate letters, one complaint is not maintainable.

5.      The builder also filed an Interim Application (I.A. No. 722 of 2020) on 19.10.2020, for dismissing the complaint as not maintainable and suffered from mis-joinder of causes of action. In this application, the facts relating to the complainants were not consumer, as stated in written reply, were repeated. Copies of internet profile of complainant-2 as “Fifth Dimensions Interior” and emails dated 08.04.2017 and 11.08.2019 were again attached with this application. The complainants filed their reply on 24.02.2021 to I.A. No. 722 of 2020, in which, it has been stated that the complainants had not booked Unit-1, Unit-2 and Unit-3 of the builder, for commercial purposes rather the Units were booked by them for the purposes of setting business of complainant-2 of “Interior Designing” for earning their livelihood by way of self-employment, as a business venture. The fact that the Project was for commercial purpose does not matter as these Units were booked for personal use and not for earing profit and gain. Complainant-2 was working from home as such they desired for a commercial space to carry out her work. It has been denied that complainant-2 had full-fledged office. Complainant-1 is unemployed and not getting any salary. False allegations have been made in this respect.

6.      The complainants filed rejoinder reply to the written reply of the builder on 01.03.2021, in which, they denied material facts contrary to the complaint and reiterated the facts stated in the complaint. It has been stated that the builder had issued possession letter for Unit-1, before completion of the construction and for Unit-2 and Unit-3, before obtaining Occupancy Certificate which was illegal. The builder was not justified for demand of interest at the rate of 24% per annum after 30 days of issuing possession letter. Entire action of the builder raising arbitrary demands and cancellation of the allotments were illegal.  

7.      The complainants filed documentary evidence along with the complaint and an Affidavit of Evidence of Akhilesh Kumar Naithani dated 24.02.2012.The builder filed documentary evidence along with counter reply and Affidavit of Evidence and Affidavit of admission/ denial of documentary evidence of Anisha Mitra dated 01.04.2012.

8.      I have considered the arguments of the parties and examined the record. First of all, I take up the issue relating to maintainability of the complaint. The word “consumer” has been defined under Section 2 (1) (d) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which is quoted below:-

[2. (1) (d).- “consumer” mean 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 and partly promised, or under any system of deferred payment, when such use is made with 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 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 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 livelihood by means of self employment.]

9.      Explanation was added by Act No. 50 of 1993 w.e.f. 18.06.1993 and slightly modified by Act No. 62 of 2002, w.e.f. 15.02.2003. Scope of the Explanation as well as expressions “commercial purpose” and “the purposes of earning livelihood by means of self-employment” came up for consideration before Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583. In which, it has been held that the Explanation was an exception to an exception. Expression “commercial purpose” has not been defined as such its dictionary meaning has to be taken into consideration. “Commerce” means financial transaction, especially buying and selling of merchandise on large scale. As in the Explanation, the purposes of earning livelihood by means of self-employment, has been excluded from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such buyer from the purview of the “consumer” so long as it is used by the buyer or his family members or with the help of one or two other persons. It is question of fact and has to be decided in each case independently. In this case, three generator sets were purchased for the purposes of the factory by the complainant and it was held that it was for commercial purpose. In Rajeev Metal Works Vs. Mineral and Metal Trading Corporation of India, (1996) 9 SCC 422, where raw material was purchased for production of the factory by the complainant, it has been held that it was for “commercial purpose”.

10.    In Cheema Engineering Services Vs. Rajan Singh, (1997) 3 SCC 131, brick manufacturing machine was purchased by the complainant and Consumer Forums have held that it was for “commercial purpose”. Supreme Court found that Consumer Forums have failed to decide as whether it was purchased for earning livelihood by means of self-employment, as such the matter was remanded to District Forum for deciding this issue. In Sunil Kohli Vs. Purearth Infrastructure Ltd., (2020) 12 SCC 235, in which, the complainant, who was non-resident of India, booked commercial space for doing their own business, it was found that as the complainant wanted to dispose of his property and settled and start his business in Delhi, as such he was consumer. In Leelawati Kirtilal Mehta Trust Vs. Unique Shanti Developer, (2020) 2 SCC 265, it has been held that a person engaged in commercial activity can buy the goods for his own purpose. In this case, the flats were purchased by the complainant for the purposes of accommodation of the nurses, employed in the hospital and the complainant was held as consumer.

 11.   From the aforesaid cases, it is clear that a person, who purchases the goods for resale or for any commercial purpose or avails services for commercial purpose is not a consumer under Section 2 (1) (d). But if he proves that the good is purchased or the service is availed for his personal use or exclusively for the purposes of earning livelihood by means of self-employment, then he is not excluded from the definition of the consumer. This issue has to be decided on the basis of the evidence adduced in the case.

12.    In the present case, the complainants stated that Complainant-2 was working from home as an Interior Designer. They were in need of a commercial space to carry out the work of complainant-2 of Interior Designing for earning their livelihood by way of self-employment, as a business venture. For that purpose they booked Unit-1, Unit-2 and Unit-3 of the builder. These Units were booked for personal use and not for earing profit and gain. In the reply to I.A. No. 722 of 2020, it has been stated that Complainant-1 was unemployed. These facts have been specifically denied by the builder. The builder has stated that complainat-1 was a salaried man and complainant-2 was working from home as interior designer. Complainant-2 had her business profile on internet in the name of “Fifth Dimension Interiors”. They were earning their livelihood. The complainants booked three Units in the commercial Project, for commercial purpose as speculative investors to make profit and gain. Complainant-1, vide email dated 08.04.2017, informed that he had showed Unit-1 to six persons for leasing it and Complainant-2, vide email dated 11.04.2019, informed that she wanted to lease Unit-2 and Unit-3 to Bikanerwala on monthly rental of 7% of monthly revenue of Bikanerwala and negotiation between them was going on. Internet Profile of Complaint-2 and emails dated 08.04.2017 and 11.04.2019 have been filed as Annexures-R-3 and R-4. Genuineness of these documents has not been challenged.  From these emails, it is fully proved that the complaints were negotiating for letting out these Units. If they had any intention for using these Units to carry out the work of complainant-2 of Interior Designing, they would not negotiating for lease. Therefore, the complainants are not the consumers. This Commission in M/s. Grand Venezia Buyers Association Vs. M/s. Grand Venezia Commercial Towers Pvt. Ltd., 2017 SCC OnLine NCDRC 1644, has held that purchasing commercial space for the purposes of lease and earning rent is commercial purpose. It has been informed that this judgment has been challenged in Civil Appeal No. 2178 of 2018, M/s. Grand Venezia Buyers Association Vs. M/s. Grand Venezia Commercial Towers Pvt. Ltd., which is pending before Supreme Court but mere filing of the appeal does not take its binding effect and it is still binding upon me. 

O R D E R

In view of aforementioned discussions the complaint is dismissed as not maintainable. The complainants are given liberty to pursue their remedy before appropriate forum.