1.      Heard Mr. Dhruv Kumar, Advocate, for the complainant and Mr. Ashish Upadhyay, Advocate, for the opposite party.

2.      Arshad Jamal Ansari and Tabish Jamal Ansari have filed above complaint for directing the opposite party to (a) refund the entire amount deposited by the complainant with interest @18% p.a. from the date of payment till the date of refund; (b) award Rs.2 lacs as litigation cost; and (c) any other order in favour of the complainant as this Commission may deem fit in the facts and circumstances of the case.

3.      The complainants stated that the opposite party is a real estate developer company. In the year 2012-13, the opposite party invited applications for booking of units in a project “Skyline-109” in Sector-109, Gurgaon. The complainant, vide application dated 09.04.2013 applied for allotment of unit No.GF-04, 1004 sq. ft. for a consideration of Rs.11044000/-. The complainant made payment of Rs.12 lacs, vide payment receipt dated 15.04.2013. As the complainant opted for “down payment plan”, under which he was required to pay a sum of Rs.10246734/-. He made balance payment of Rs.9046734/- on 26.04.2013. On 02.05.2013, the opposite party executed a memorandum of understanding. Possession of the unit was to be handed over within a period of 30 months. The opposite party failed to fulfil its obligation to complete the construction and handover the possession. The complainant personally visited the project site many times but after expiry of 28 months even the opposite party has not commenced the construction. The complainant sent notice dated 31.03.2015 to the opposite party demanding corrective actions, which was not replied. Alleging deficiency in service on the part of the opposite party, the complainant filed the instant complaint on 03.09.2015.

4.      The opposite party contested the complaint by filing the written reply on 20.11.2015, wherein booking and allotment of the unit, execution of memorandum of understanding and deposits made by the complainant, have not been denied. The opposite party stated that the complainant had not booked the unit under down payment plan. The payment was to be made under subvention plan. It is denied that possession of the unit was to be made within a period of 30 months. The complainant had never enquired about the progress report of the project. However, the opposite party provided the progress report of the project to the complainant. The development work of the project is in progress and all other buyers except the complainant are satisfied with the progress work. The opposite party is paying monthly assured returns to the complainant but for the last few months he is not presenting the cheques issued by the opposite party for encashment with his banker. As per MOU, any dispute between the parties was to be referred to the arbitration. The complainant is not a consumer as he had invested the amount with the opposite party for commercial purpose. He had booked a commercial unit i.e. showroom for running business. The complainant is already running his business not only in India but in abroad also. Therefore, he is not a consumer under Section 2 (1) (d) of the Consumer Protection Act, 1986. Further, the complaint is pre-mature as the complainant has approached this Commission before expiry of the time stipulated in the MOU. The complaint has no merit and is liable to be dismissed.  

5.      The complainant filed Rejoinder Reply and affidavit of evidence of Alauddin Ansari. The opposite party filed Affidavit of Evidence of Ajay Vyas.

6.      We have considered the arguments of the counsel for the parties and examined the record. Counsel for the opposite party relied on the judgments of this Commission in Priti Arora vs. M/s ARN Infrastructure India Pvt. Ltd. (2017) SCC OnLine NCDRC 118 and Rishi Malhotra vs. M/s Blue Coast Infrastructure Development Pvt. Ltd. & Ors. (2017) SCC OnLine NCDRC 700 and submitted that as the complainant has booked the showroom for the purpose of running a business, he is not a Consumer. The word “consumer” has been defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 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 8 [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 purpose].

[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;]

7.      Scope of the expressions “commercial purpose” and “exclusively for the purposes of earning livelihood by means of self-employment” came up for consideration before Supreme Court in relation to purchase of goods in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, wherein 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. In view of the Explanation the term “large scale” has no significance. As the Explanation excludes the transaction which was done for “exclusively for the purposes of earning livelihood by means of self-employment”, from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such a buyer from the purview of the “consumer” so long as it is used by the buyer or his family members.

8.      The complainants in paragraph-7 of the complaint have stated that they have booked the unit with an objective to set up a showroom for their own business. The opposite party has stated that the complainants are running their business not only in India but in abroad also. But the opposite party has not adduced any evidence to show that the complainants are running their business in abroad. If for own business the complainants wanted to open a showroom then it is still for the purpose of “earning livelihood” and falls within the Explanation of Section 2 (1) (d) of the Consumer Protection Act, 1986. Supreme Court in Sunil Kohli vs. Purearth Infrastructure Ltd. (2020) 12 SCC 235 held that if a person avails a commercial unit for own business for earning livelihood, then also he is a consumer.

9.      As regards maintainability of the complaint on the ground of arbitration clause, Supreme Court in M/s Emaar MGF Land Limited vs. Aftab Singh – I (2019) CPJ 5 (SC), laid down that Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Also, as per Section 3 of the Consumer Protection Act, 1986, it is provided that “the provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force”. Reference also be had to the judgment of the Supreme Court in the case of M/s Fair Air Engineers Pvt. Ltd. Vs N.K. Modi AIR 1997 SC 533.

10.    As far as issue of pre-mature is concerned, as per clause 11 of the terms & conditions of the allotment, possession was to be handed over within 30 months from the date of registration for allotment. Registration for allotment was complete when the opposite party received application form alongwith Rs.12 lakhs and also generated customer ID: SKY0104, vide payment receipt dated 15.04.2013. Thus, the opposite party was liable to handover the possession by 15.10.2015. The complaint was filed on 03.09.2015 i.e. 42 days prior to the date of possession, with the allegation that till filing of the complaint, the opposite party has not started construction. The opposite party has not disclosed about the stage of construction or the expected date of handing over of the possession either in the written statement or in the written arguments filed on 03.10.2022. Under the circumstances, the complaint filed 42 days prior cannot be dismissed as pre-mature today.

11.    Admittedly, the complainant had paid more than one crore rupees to the opposite party in the year 2013 and has been deprived of the possession of the unit. Therefore, he is entitled for refund of his money with interest. Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, held that the buyer cannot be made to wait for possession for an unlimited period.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants with interest @9% per annum from date of respective deposit till the date of refund, within a period of two months from the date of this judgement.