Devesh Wadhwa and Sanjay Kalra have filed the instant joint complaint against M/s MGF Land Ltd., the opposite party developer alleging deficiency in service on the part of the opposite party in respect of the development agreement pertaining to one unit located on 6^th floor of the commercial complex, the Palm Spring Plaza undertaken to be developed by the opposite party.

2.       On consideration of the complaint a pre-admission notice was directed to be issued to the opposite party. The opposite party on appearance raised a preliminary objection that as the services of the opposite party were availed for commercial purpose the complainants are not the consumers as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986 and as such they have no locus standi to maintain the instant consumer complaint.

3.       I have heard learned counsel for the parties on admission as also maintainability of the complaint. Learned Shri Aditya Narain, Advocate for the opposite party has taken me through the complaint as also the relevant builder buyer agreement annexed thereto and submitted that on reading of the above it is clear that the complainants had booked a commercial space in a commercial plaza, therefore, they obviously have availed services for commercial purpose and as such they cannot be termed as complainants in view of the exception carved out in the definition of the term consumer under Section 2 (1) (d) of the Consumer  Protection Act, 1986.

4.       Learned counsel for the complainants on the contrary has argued that complainants are qualified Chartered Accountants and they have been running a chartered accountant firm in partnership in the name and style of M/s KS & WD Associates. It is contended that the complainants had booked the above noted commercial space with a view to set up their office in the said unit in order to earn their livelihood from the said firm. In support of the above contention learned counsel for the complainants has drawn my attention to the respective affidavits of the complainants filed on 30^th September, 2015 pursuant to the directions issued by the Bench on 9.7.2015.

5.       Section 2 (1) (d) of the Consumer Protection Act, 1986 defines “Consumer” 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 '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 purposes;

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”

6.       As the complainants have set up a case of deficiency in service, we are concerned with the definition given in Section 2 (1) (d) (ii) and the explanation of the Act. On bare reading of Section 2 (1) (d) (ii) it is clear that consumer is a person who hires or avails of services for consideration but does not include a person who has hired/availed of service for commercial purpose unless his case falls within the parameters of the explanation to Section 2 (1) (d) of the Act.

7.       It is admitted case of the parties that the complainants had entered into builder buyer agreement with the opposite party for a commercial space in a commercial project undertaken by the opposite party. Therefore, the complainants cannot be deemed as consumers unless they are able to bring their case within the explanation to Section 2 (1) (d) which provides that for the purpose of clause (ii) of Section 2 (1) (d) the commercial purpose does not include the services availed by a person exclusively for the purpose of earning his livelihood by way of self-employment. Thus, the question is whether or not the case of the complainants falls within the four corners of the explanation to Section 2 (1) (d) of the Act?

8.       The complainants are seeking to avail of the benefit of above restricted definition of the commercial purpose by contending that they had booked the above noted commercial space in the commercial plaza undertaken to be developed by opposite party with a view to set up their chartered accountant firm office to earn their livelihood. I do not find merit in the above contention because perusal of the complaint would show that in the entire body of the complaint, the complainants have not mentioned that at the time of booking of the above noted units the complainants intended to use the aforesaid commercial space for setting up their office in order to earn their livelihood. Learned predecessor Bench before hearing the complaint on admission vide proceedings dated 9^th July, 2015 had called upon the complainants to file separate affidavits detailing their present working place and their office address etc. Both the complainants have filed similar affidavits. In respective para 2 of their affidavits the complainants have stated that they have been practicing as chartered accountant since 1999 meaning thereby that since 1999 both the complainants are gainfully employed and earning livelihood from their practice as chartered accountant. The complainants in their respective affidavits have also averred that they are working in partnership under the name and style of M/s KS & WD Associates and their firm has its registered office at house No.32, lower ground floor, Okhla Industrial Estate, Phase-3. In para 4 of the respective affidavits both the complainants have stated that they have been earning and continue to earn from the said Chartered Accountant firm since its incorporation. Neither of the complainants has averred in his affidavit that the subject commercial unit was booked with the object of setting up of their office in the said unit for the purpose of earning livelihood by means of self-employment. Thus, the benefit of the explanation to Section 2 (1) (d) (ii) of the Act is not available to the complainants.

9.       In view of the discussion above, I am of the opinion that the complainants have hired/availed services of the opposite party for commercial purpose. Therefore, they cannot be termed as consumers as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986. The complainants, therefore, have no locus standi to maintain the consumer complaint. Complaint is accordingly dismissed. This, however, will not come in the way of the complainants to avail of their remedy by approaching the appropriate forum.