This appeal has been filed by the appellant challenging the order dated 18.05.2016 of the Delhi State Consumer Disputes Redressal Commission, Delhi (‘the State Commission’) in CC no. 413 of 2016.

2.     Brief facts of the case are that the appellant no.1/ complainant no.1 paid money to the respondent to start a small shop for her earning. The total cost of the shop was Rs.78,84,584/-. The complainant booked a commercial space in Gurugram and paid Rs.6,73,980/- on 31.01.2014. On 16.04.2014 and 31.07.2014, the complainant paid Rs.10,10,970/- and 4,15,896/- respectively.  The total amount paid by the complainant was Rs.21,00,846/-. On receiving the part payment from the complainant, the respondent started playing all kinds of pressure techniques upon the complainants and even made illegal demands for money and has also doubled the PLC charges from 5% to 10% and kept on changing the size and location of the shop, just to harass the complainant. Due to undue pressure and coercion of the respondent, the complainant agreed for the allotment of a different shop. Agreement to sale was signed on 01.08.2014. In the month of March 2015, the respondent raised a demand of Rs.10,00,000/- to be paid in cash. As the financial position of the complainant was not good to pay such huge amount in cash, the complainant expressed her inability to pay the same. The respondent threatened to cancel the allotment and not to refund a single penny. Ultimately, under undue pressure the complainant agreed to take back whatever money the respondent was offering to the appellant. The compalinant wrote a letter regarding the same but the respondent did not pay a single penny to the complainant. Hence, a consumer complaint was filed before the State Commission. The consumer complaint was dismissed by the State Commission vide its order dated 18^th May 2016.

3.     Heard the learned counsel for both the parties and perused the record. The learned counsel for the appellant stated that the State Commission has dismissed the complaint on frivolous grounds. The State Commission has observed that the complainants are not ‘consumer’ as the shop is located in a Commercial Complex and therefore, the same was booked for commercial purpose. There is no averment in the complaint that the shop was purchased for earning livelihood by means of self-employment. The second point on which the complaint has been dismissed is that the State Commission observed that it was not possible for the complainant to come from Delhi to Gurugram and to operate the shop on a daily basis. The third point on which State Commission has not accepted the complaint is that the complainants have not shown the source of income for purchasing the shop. The learned counsel for the appellant argued that first of all, the observation of the State Commission that the complainants would not be able to come from Delhi to operate the shop at Gurugram on a daily basis is totally irrelevant as there was no such condition for the allotment of shop that only persons living in Gurugram had to apply for the same. Moreover, it is quite possible to operate the shop after coming from Delhi even on a daily basis. This depends on the complainants as to how they manage to operate the shop. Coming to the question of funds, learned counsel stated that the complainant no.1 has taken the funds from her husband who is complainant no.2 and there is no illegality in this transaction. On the question of complainants being consumers, it was stated by the learned counsel for the appellants that the shop was purchased for earning livelihood for complainant no.1 by means of self-employment and therefore, the complainants satisfied the criteria under the Consumer Protection Act, 1986 for being consumers. The State Commission has also found the complaint as premature as the same was filed before the due date of possession. In this regard, the learned counsel stated that this observation could have been valid, had the complainants been planning to take the possession of the said shop. As the complaint has been filed for refund of the paid amount, this request can be made at any time after depositing the amount and there is no need to wait for the date of due possession for filing the complaint.

4.     On the other hand, the learned counsel for the respondent opposite party stated that the State Commission has already considered all the issues and has found that the complainant are not consumers within the ambit of the Consumer Protection Act, 1986. The learned counsel stated that in the application form, the complainant no.1 has described herself as proprietor of Sona International Company and therefore, she is already earning her livelihood. In this condition, it cannot be believed that she had booked the shop for earning her livelihood by means of self-employment.

5.     I agree with the learned counsel for the appellant that the observation of the State Commission that it will not be possible for the complainants to come from Delhi and operate the shop at Gurugram on a daily basis is not relevant to decide the present complaint.

6.     It is true that the complaint has been filed before the date of due possession and from this aspect, the complaint would be treated as premature. Similarly, I also do not find any substance in the observation of the State Commission that the complainant no.1 has used the funds of her husband complainant no.2 for making payment to the opposite party and therefore, it was a commercial transaction. It is also not relevant for deciding the current complaint.

7.     In my view, the moot question in the present case is whether the complainant’s are ‘consumers’ under the ambit of the Consumer Protection Act, 1986. The form filled by the complainant no.1 clearly shows her as proprietor of the company Sona International. In the written statement, the opposite party had stated so and had also given some details of the company Sona International. However, no clear reply has been given by the complainants in their rejoinder to the written statement. In such a situation when one party is alleging something against the other party and the other party is not responding to the allegation made the obvious inference to be drawn is that allegation is not without any basis. In the present case, the shop was booked in a commercial space and no claim was made in the complaint that the shop was booked for earning livelihood by means of self-employment though in the rejoinder this claim has been made. In the rejoinder, this claim has been made because the opposite party had alleged in its written statement that complainant no.1 is the proprietor of a company Sona International and the telephone number given in the application form matches with the telephone number given in the website of the Sona International Company. Even at this stage, the complainants have not denied that they did not have any connection with Sona International Company. This company is manufacturing jeans and other garments and therefore, even if it is considered that the shop was booked for expanding the business of the complainants, the same cannot be considered as earning livelihood by means of self-employment. Both the complainants are already employed and therefore, there can be no question of purchasing a new shop for earning livelihood by means of self-employment. Thus, the complainants do not satisfy the explanation attached to Section 2 (1) (d) of the Consumer Protection Act, 1986, therefore, they cannot be considered as ‘consumers’. Thus, the complaint filed by the complainants is not maintainable under the provisions of the Consumer Protection Act, 1986.

8.     Once it has been established that the complainants are not consumers under the provisions of the Consumer Protection Act, 1986, there is no need to discuss other points raised in the appeal.

9.     Based on the above discussion, the appeal filed by the appellants/ complainants fails and consequently the First Appeal no. 866 of 2016 stands dismissed. However, liberty is granted to the complainants/ appellants to approach the Civil Court if they are so advised.