This appeal has been filed by the appellant Sanjay Sharma, against the order dated 07.08.2019 of the State Consumer Disputes Redressal Commission, Delhi, (in short ‘the State Commission’) passed in CC No.672 of 2019.  The consumer complaint has been dismissed vide order dated 7.8.2019 passed by the State Commission on the ground that the complainant is not a consumer as he has entered into an agreement with the opposite parties, where the opposite parties are obliged to give assured return to the complainant.

2.      Learned counsel for the appellant stated that the complaint was dismissed in limine without giving notice to the opposite parties.  Learned counsel stated that the State Commission has relied on two judgments of this Commission:-

1. CC No.246 of 2013, Mrs. Priti Arora Vs. M/s ARN Infrastructure India Pvt. Ltd., dated 06.4.2017 (NC).

2. CC No. 369 of 2015, Rishi Malhotra Vs. M/s. Blue Coast Infrastructure Development Pvt. Ltd. & Ors., decided on 08.02.2017 (NC).

3.      Learned counsel stated that both judgments relate to commercial spaces and the case of the appellant relates to residential flat.   Thus, the cases relied upon by the State Commission are not applicable in the present case.  The complainant has booked residential flat with the opposite parties and as per the schedule of payment, the complainant is entitled to get 12% p.a. return on the amount paid, if the amount more than 50% is paid to the opposite parties.  This provision does not imply that the flat has been purchased for commercial purpose.  It was requested that the complaint be decided on merits rather than on any technical ground.

4.      I have carefully considered the arguments advanced by the learned counsel for the appellant.  In respect of the assured return, the following is mentioned in the agreement:-

“That Annexure A annexed to the said Flat Buyer’s Agreement pertains inter-alia to ‘assured return’; and it is as under:

         Note:  RETURN WILL START ONCE 50% PAYMENT IS  RECEIVED

5.       From the above, it is clear that this seems to be an incentive to allottee for early payment to the opposite parties for completing the construction in time.  The State Commission has relied on two judgments of this Commission in CC No.246 of 2013, Mrs. Priti Arora (supra) and CC No. 369 of 2015, Rishi Malhotra (supra), but it is seen that both these judgements are in respect of commercial spaces and the units were to be given on lease for three years to some other party and then assured return was to be given to the complainant. In these two cases, the matter related to commercial spaces and then the question to be decided was whether the complainant had booked these commercial spaces for earning livelihood by means of self-employment.  When the complainant in those cases, agreed to give on rent these spaces on lease for three years, this clearly meant that the complainants were not interested in using these commercial spaces by employing themselves, rather they agreed to give the units to somebody else on lease.  Thus, this Commission found that the complainants in those two cases had not booked the commercial spaces for earning livelihood by means of self-employment, therefore, they were not treated as consumers.  In the present case, apart from the fact that the matter relates to residential flat, there is no MOU for lease agreement signed by the complainant and therefore, the facts of those cases are different than facts in the present case.  Even the assured return is different in these two cases i.e. CC No.246 of 2013, Mrs. Priti Arora (supra) and CC No. 369 of 2015, Rishi Malhotra (supra).  Thus, the judgments relied by the State Commission in CC No.246 of 2013, Mrs. Priti Arora (supra) and CC No. 369 of 2015, Rishi Malhotra (supra) do not seem to be applicable in the present case.  The case of the complainant relates to booking and allotment of a residential unit for which builder-buyer agreement has been signed. Assured return seems a mechanism to attract earlier payments from the allottees without making commercial use of the residential flat.  The assured return is to be given till the possession of the flat only and therefore, it cannot be said that the flat has been booked for any commercial use.

6.      Based on the above discussion, the first appeal No.1940 of 2019 is allowed and the order dated 7.8.2019 passed by the State Commission is set aside.  The matter is remanded to the State Commission for restoring the complaint to its original number and to decide the same as per the provisions of law.  Complainant is directed to appear before the State Commission on 13.5.2020.