JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

Mrs. Priti Arora, the complainant herein has filed instant consumer complaint against opposite party Developer alleging deficiency in service on the part of the opposite party developer and sought the following reliefs:

“a. direct the Respondent/Opposite Party to refund the amount of Rs.1,14,30,048/- paid by the complainant towards the booking of her  unit with interest @ 18% per annum from the date of payment, till date of realization;

OR IN THE ALTERNATIVE

a   direct the respondent/Opposite Party to hand over vacant and peaceful possession of the site, complete in all respects to the Complainant;

b.  direct the Respondent/Opposite Party to pay a sum of Rs.33,50,400/- to the complainant, being the monthly committed return due to the complainant w.e.f. April 2011 till April 2013 with pendent lite and future interest @ 18% per annum from the date of accrual till date of realization;

c.  Direct the respondent/opposite party to pay a sum of Rs.1,00,00,000/- to the complainant as compensation on account of  harassment, mental tension, agony suffered by the complainant;

d.  Direct the respondent/opposite party to pay a sum of Rs.1,39,600/- each month to the complainant as the monthly committed return w.e.f. May 2013 pendente lite till date of handing over of possession of the unit complete and operational in all respects/ date of refund along with interest @ 18% per annum;

e.  award costs of the present complaint in favour of the complainant and against the respondent/opposite party;

f.   pass such other or future orders, as this Hon’ble Forum may deem fit and proper in the facts and circumstances of the case and in the interest of justice.”

2.         The opposite party on being served with notice has filed written statement denying the allegations on merit on various counts.  The opposite party has taken a preliminary objection that the instant complaint is not maintainable because the complainant is not consumer as defined under section 2 (1) (d) of the Consumer Protection Act, 1986 (in short, the Act ) as she had purchased multiple units in the project for commercial purpose.

3.         As the above noted preliminary objection goes to the root of the case, we have heard arguments on maintainability of complaint.

4.         Learned counsel for the opposite party has taken us through the complaint and submitted that admittedly the complainant had entered into multiple builder-buyer agreements with the opposite party for booking of the commercial space.  Therefore, it is clear that services of the opposite party were availed by the complainant for commercial purpose.  As such, in view of exception carved out in the definition of consumer, the complainant cannot be termed as ‘consumer’ as envisaged under section 2 (1) (d) of the Act.  It is argued that as the complainant is not a consumer, he has no locus standi to raise the consumer dispute.

5.         Learned counsel for the complainant on the contrary has taken us through the definition of ‘consumer’ under section 2 (1) (d) of the Act particularly the Explanation and submitted that Explanation to Section 2 (1) (d) gives a restricted meaning to the term ‘commercial purpose’.  Expanding on the argument, learned counsel for the complainant has drawn our attention to the affidavit evidence of the complainant and submitted that from the aforesaid affidavit,