RADHIKA RATHORE vs M/S. EXACT DEVELOPERS & PROMOTERS PVT. LTD.

The complainant, who is based in New York, booked a commercial/retail unit with the opposite party on 2.2.2007, paying a booking amount of Rs.11 lakhs. She was provisionally allotted Unit No.708 in Block-B of the project, namely, ''The ACE'', which the OP was to develop in Manesar in Gurgaon. The complainant claims to have paid a sum of Rs.7397534/- to the opposite party. Vide letter dated 20.10.2010, the OP informed the complainant that the building was almost ready and they expected to give possession by 31.12.2010. The complainant was requested to make the pending payment. The complainant informed the opposite party that she had already paid around Rs.70 lakhs to them and she was also losing by way of rental income. The learned counsel for the complainant states that in fact the exact amount paid by that time was Rs.7397534/-.

Vide reply dated 9.12.2014, the OP informed the complainant that the Completion Certificate and other statutory approvals had already been obtained and she could take possession after completing commercial formalities and making the balance payment. There was further exchange of correspondence between the parties and vide reply dated 27.11.2015, the opposite party informed the complainant that they had received the Occupancy Certificate dated 27.3.2014 and 4.11.2015 and she could make the balance payment and take possession of the unit booked by her.

The grievance of the complainant, as expressed by her counsel, is that in fact the construction of the building is still not complete. This is also his submission that the balance payment should not be demanded by the opposite party in advance and possession should be handed over simultaneously on receipt of the balance payment. The complainant is, therefore, before this Commission seeking the following relief:-

Rs.73,97,534/- which was paid towards unit booked with the respondents for unit 708 in "THE ACE" in Manesar, Gurgaon, Haryana; AND

Interest on the amount paid by the complainant to the opposite party @ 18% interest per annum for 6 years and 3 months from 25 March 2010 till 25 June 2016 which amounts to Rs.83,22,225/-; AND

Interest at the rate of 18% till the final realization of amount; and

Damages for mental agony of Rs.6,00,000/-; AND

Damages due to deficiency in service Rs.100,000/- AND

Costs of Rs.50,000/-; AND

Total Rs.1,64,69,760/-

Section 2 (1)(d) of the Consumer Protection Act, to the extent it is relevant, provides that the term consumer does not include a person who buys goods or hires or avails services for a commercial purpose. The explanation below section 2(1)(d) of the Act, provides that for the purpose of the said 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.

Admittedly the unit booked by the complainant with the opposite party is a commercial unit. A commercial unit can be used only for a commercial purpose. There is no allegation in the complaint that the aforesaid unit was booked by the complainant for the purpose of earning her livelihood by way of self-employment in the said premises. In the absence of such an averment in the complaint, the case of the complainant does not fall within the purview of the explanation below section 2(1)(d) of the Consumer Protection Act. Since the unit in question was a commercial unit, it is obvious that the complainant hired or availed the services of the opposite party for a commercial purpose. Therefore, this Commission does not have the jurisdiction to entertain a complaint. Learned counsel for the complainant refers to the decision in (2015) 12 SCC 709, (2012) 2 SCC 506 and (2009) 9 SCC-79. However, in the absence of averments attracting applicability of the explanation below section 2 (1) (d), the aforesaid judgments would not apply to the case of the complainant. The complaint is accordingly dismissed. It is, however, made clear that dismissal of the complaint does not come in the way of the complainant approaching a forum other than a consumer forum for the redressal of her grievances.