The facts of the case as per the Appellant/Complainant are that she is a sole proprietor of M/s. F.F. Handicrafts and is carrying on her business at K-35, Batla House, Jamia Nagar, Okhla, New Delhi. It is stated that in the year 1998, the Appellant came across an advertisement published in a leading newspapers on 28.01.1998 by the Respondent No.1 announcing that it was going to launch/construct a commercial complex known as Ansal’s Fortune Arcade in Sector-18, Noida, U.P. The ‘Shops’ to be constructed in the said shopping arcade were to be allotted on outright sale for Rs.6.5 lacs onwards, with an inaugural discount upto 40,000/-.

2.       The Appellant and other prospective buyers with an intention to own/possess a commercial unit in the newly developed city i.e. Noida, approached the Respondent No.1 for further enquiries regarding the marketability etc. and on enquiry it was informed by the representatives of the Respondent No.1 that the construction of the said project would be completed in all respects within a period of 18 months and the actual and physical possession and ownership of the booked shop fully furnished in all respect would be handed over immediately thereafter. The Appellant being self-employed thought that it was the best opportunity to expand her business and accepted the said offer and accordingly booked Shop No.LG- 022, having 235 Sq. Ft. (Super Area), situated at lower Ground Floor, in the proposed Shopping Complex namely ‘Fortune Arcade’, situated at Sector-18, Noida. The Appellant opted for Plan ‘C’ (Construction Linked) inasmuch as the cost of the said flat was agreed to be Rs.10,16,375/- in all respect. At the time of booking, the Appellant paid a sum of Rs.1,00,000/- vide cheque No.103415 dated 15.01.1998 drawn on the Jammu & Kashmir Bank Ltd, and accordingly, the Appellant was issued the allotment letter by the Respondent No.1 on 19.05.1998, which was duly signed by both the parties.

3.       It has been alleged by the Appellant that she received an intimation from the Respondents shifting her to an air conditioned project requiring her to pay an additional amount of Rs.69,000/- which she paid in four instalments. She was further pressed to pay an additional amount on two occasions, i.e. Rs.26,760/- towards lease and Rs.15,094/- towards electric connection. She paid the amounts.

4.      However, the Respondent failed to complete the construction within the stipulated time and according to the Appellant when she visited the site, she found that the construction had barely commenced with no prospects of its being completed in the near future. The Appellant has further alleged that in the meanwhile without the possession of the shop having been handed over, the Respondents had demanded a sum of Rs.8,66,108/- towards maintenance charges, holding charges, interest on late payment and service tax. This demand according to the Appellant was not legitimate.

5.       Further, since the possession of the shop was not delivered, depriving the Appellant from expanding her business, the purpose for which she had intended to purchase the shop, a claim was preferred before the Respondents to refund among others, the principal amount as also the interest but her requests to this effect evoked no response. Accordingly, the Appellant filed a Consumer Complaint against the Respondents before the State Commission seeking the following reliefs;

“(a)      direct the respondents to withdraw the illegal and unlawful demand of Rs.8,66,108/- and not to raise any demand in future till the actual and physical possession of the shop is delivered to the complainant;

(b)       direct the respondent No.1 to pay interest @  24% per annum on Rs.9,94,750/-, to the complainant;

(c)        direct the respondent to refund to the complainant a sum of Rs.27,098.60 towards Stamp Duty, Rs.5,030/- towards Registration Charges, Rs.69,000/- towards installation of Centrally Air-Conditioning, Rs.27,245/- towards lease rent, together with interest @ 24% per annum from the date of their respective deposits, till its realization along with Rs.50,00,000/-(Rupees Fifty Lacks only) as damages for the mental agony and distress, sustained by the complainant together with cost of the Complaint.”

6.      Notice was sent to the Respondents. The Respondents raised the preliminary objections that the Complaint should be dismissed on the ground of limitation as it has been filed after the expiry of more than seven years from the date when possession was to have been given. It was further stated that the possession was offered vide, letter dated 22.03.2002, subject to the clearance of pending dues as well as charges towards execution and registration of sub lease. The Complainant, however, failed to come forward to take the possession. The Opposite Party further stated that the State Commission has no pecuniary jurisdiction to entertain the Complaint on the inflated claims of the Complainant. Further, the Complaint was liable to be dismissed as the unit was booked in the name M/s. F.F. Handicrafts having its office at E-137, Sector-55, Noida, U.P, however, the Complaint was filed in the name of Mrs. Gowhar Khan, R/o K-35, Batla House, Zamia Nagar, Okhla, New Delhi-110020. It is further alleged that unit booked for commercial purposes and even the original allottee does not fall under the ambit of Section 2(1) (d) of the Consumer Protection Act, 1986. Further, they denied all the allegations raised by the Appellant/Complainant in her Complaint.

7.      The State Commission vide their impugned order dated 13.02.2018, while dismissing the Complaint, observed as under;

         14.    On reading of the above it is clear that in order to avail the benefit of the explanations, the onus lies on the complainant to show that they have availed the services of the OPs exclusively for the purpose of earning their livelihood by means of self-employment. The complainant in para 5 of the complaint avers as under:-

“…..and further the complainant being self-employed thought it best opportunity to expand her business….”

16.    To put it differently, one while purchasing a commercial unit would be a consumer within the meaning of Section 2 (1) (d) only if one is not having already business establishment.  Booking of a shop for the purpose of expansion of business, as is the object in the given case, envisage existence of business establishment already, in which case one would not be covered within the exception clause  of Section 2(1)(d) of the Act  (supra) and if that be the case, availing of service would tantamount to for commercial purpose and in such event complainant would not be a consumer. This view is fortified by the decision of the Hon’ble NCDRC in the matter of Ashish Ahuja vs. M/s. Gold Cause Construction Pvt.Ltd. & four ors–CC 201/2015 –decided on 15.04.2015–reported–2015 SCC online NCDRC 31- holding as under:-

We have carefully considered the submissions made on behalf of the complainant and perused the record. It is undisputed that the complainant alongwith his wife has been running family business of retail fashion accessories.  It is also not disputed that the consumer complaint has been filed in respect of alleged deficiency in service in respect of booking of shop, which is a commercial premises. Therefore, unless the case of the complainant is covered with the Explanation, which provides restricted definition for commercial purpose, the complainant cannot be termed as “consumer” as envisaged under Section 2 (1)(d) of the Act. The complainant has alleged that he is presently running the business under the name of `Fashion & Trends’ in which he is self-employed for earning livelihood and he has booked the commercial space in the project undertaken by the opposite party with a view to expand its business. Therefore, he is squarely covered under the restrictive definition of commercial purpose given in the Explanation to Section 2(1) (d) of the Act.

In view of the discussion above, it is clear from the averments in the complaint that the services of the OP were availed in relation to commercial purpose. As such the complainant cannot be termed as `consumer’ for the purpose of the Act. Since the complainant is not a consumer he cannot maintain the consumer complaint.

Since the complainant is found to be not a consumer we do not wish to consider other submissions made by the parties on the merit of the case.

Consumer complaint is accordingly dismissed. The complainant shall be at liberty to avail the proper remedy by moving appropriate forum, if he so desires.”

8.     Hence, the present Appeal.

9.      We have heard the learned counsel for the Appellant. He contended that Mrs. Gowhar Khan who is the sole proprietor of M/s. F.F. Handicraft had booked the unit for her firm. She is now operating the firm from their residence, i.e. K-35, Batla House, Zamia Nagar, Okhla, New Delhi-110020.

10.    We have gone through the record. As per the Complaint, the complainant is the sole proprietor of M/s. F.F. Handicrafts and is carrying on her business at K-35, Batla House, Jamila Nagar, Okkha, New Delhi. She had booked the unit with the intention to own/possess a commercial unit in the newly developed city, for which she had approached the Respondent No.1. The Appellant being a self–employed thought it was the best opportunity to expand her business by booking a shop with the Respondents in the Shopping Complex namely ‘Fortune Arcade’, situated at Sector-18, Noida. The Complainant has invested the said amount for expanding her business and for earning handsome amount. However, she had not been given physical possession of the shop and hence she has suffered a loss of Rs.5,00,000/- per annum.

11.    It is seen that the allotment letter dated 19.05.1998 of the shop in question is in the name of M/s. F.F. Handicrafts, E-137, Sector-55, Noida (U.P.). This is contrary to the averments of the Complainant that she had booked the shop in her name and that she was operating the said firm from her residence i.e. K-35, Batla House, Zamia Nagar, Okhla, New Delhi-110020.

    “Section 2 (1) (d) in the Consumer Protection Act, 1986

(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 ⁴[but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) ³[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 ³[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 ⁴[but does not include a person who avails of such services for any commercial purpose];

          ⁵[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;]

12.    It is clear after reading the Complaint that the Complainant was already self-employed owning her own business in the name of M/s. F.F. Handicrafts, which she had been operating from shop, E-137, Sector-55, Noida, (U.P.) and not from her residence, i.e. K-35, Batla House, Zamia Nagar, Okhla, New Delhi-110020. It is clearly established from the record that the Appellant had booked the said unit in the name of her business for enhancement/expansion of her existing business. Hence, the Appellant/Complainant cannot be covered under the Explanation given in Section 2(1)(d) of the Consumer Protection Act, 1986, by which the only exception is for a person who has bought goods and used by him and services availed exclusively for the purpose of earning his livelihood by means of self-employment. In the present Complaint, the Appellant /Complainant being the sole proprietor of M/s. F.F. Handicrafts  and operating the said firm from E-137, Sector-55, Noida, (U.P.) had booked the said unit to enhance/expand her business and for better opportunity and prospects.

13.    Hence, in view of the above discussion, we do not find any reason to interfere in the impugned order passed by the State Commission as the State Commission has  rightly came to the conclusion that the Complainant cannot be termed as  ‘Consumer’ for the purpose of the Act and  dismissed the Complaint filed by the Appellant/Complainant. Accordingly, the present Appeal is dismissed being not maintainable.

14.    No order as to cost.