S.M. Kantikar ORDER
Dr. B.C. Gupta, (Presiding Member)
1. These two first appeals have been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned orders dated 01.04.2016, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in consumer complaints No. 128/2016, filed by Leelavati (appellant in FA/457/2016) and No. 130/2016, filed by Mukul Sharma (appellant in FA/458/2016). Vide these orders dated 01.04.2016, the State Commission dismissed the complaints on the ground that both the complainants had booked the property with the respondent/OP Builders for commercial purpose and hence, the consumer complaints were not maintainable.
2. The facts involved in these cases as stated by the complainant Leelavati in her consumer complaint No. 128/2016 are that she entered into an agreement with the respondent/OP builder/developer M/s. VSR Infratech Private Limited for purchase of land costing 55 lakh and under the agreement, an initial payment of 4,08,160/- was made. The total payment made by her to the OP Builder was 41 lakhs. The OP was supposed to hand over the physical possession under the agreement mentioned as commercial Unit No. SA-4-27 in sector 68 Gurgaon after about three years. It was stated in the complaint that the agreement for the said purchase was entered for the purpose of earning her livelihood. However, on the failure of the OP Builder to handover the property in accordance with the terms of the agreement, the complainant got a legal notice issued to them, but to no avail. The complainant filed the consumer complaint in question, seeking direction to the OP to give physical possession of the said apartment to the complainant within 30 days or to refund the amount deposited of 41 lakhs alongwith interest @24% p.a. and also to pay a compensation of 20 lakh for mental agony etc. and 5 lakhs as cost of litigation.
3. In the second consumer complaint No. 130/2016, the complainant Ms. Mukul Sharma stated that there was an oral agreement between the complainant and the OP on 25.05.2011, as per which an initial payment of 9,80,561/- was made against the total value of the land/plot as 55_lakh. In total, a sum of 25 lakh had been paid under the agreement mentioned for the commercial unit 7A-07 in Sector 114, Gurgaon. However, the OP Builder failed to provide the property in accordance with the terms of the agreement, failing which the consumer complaint was filed, seeking directions to the OP to hand over the physical possession of the said apartment within 30 days, or to give refund of the amount deposited, i.e., 25 lakhs alongwith interest @24% p.a. and a compensation of 25 lakhs for mental agony and a further sum of 5 lakh as litigation charges.
4. The State Commission heard both the complaints but rejected them at the admission stage itself, saying that the property in question had been booked for commercial purpose. In CC No. 128/2016, the State Commission observed as follows:-
"6. A person purchasing unit for Rs. 55,00,000/- cannot be said to be a bonafide user for self employment. The things could have been understood, had the investment been reasonable say Rs. 5,00,000/- to 7,00,000/-.
7. The premises booked for ATM cannot be said to be source of livelihood by self employment. A unit booked for BPO cannot be said to be booked for earning livelihood by self employment as number of employees are likely to be deployed. Area of about 100 sq. ft. can be said to be of personal office but not office with the area of 567 sq. ft."
5. The State Commission further observed as under:-
"13. ...In Para 7 it has been held that complainants were trying to seek shelter of bald plea in the complaint that they had booked commercial spaces in the tower for earning their livelihood by means of self employment. Merely, taking of plea will not entitle the complainants to get the benefit of explanation which carves out except........