Section 19A in the Consumer Protection Act, 1986

19A. Hearing of appeal.—An appeal filed before the State Commission or the
National Commission shall be heard as expeditiously as possible and an endeavour
shall be made to finally dispose of the appeal within a period of ninety days from
the date of its admission: Provided that no adjournment shall be ordinarily granted
by the State Commission or the National Commission, as the case may be, unless
sufficient cause is shown and the reasons for grant of adjournment have been
recorded in writing by such Commission: Provided further that the State
Commission or the National Commission, as the case may be, shall make such
orders as to the costs occasioned by the adjournment as may be provided in the
regulations made under this Act: Provided also that in the event of an appeal being
disposed of after the period so specified, the State Commission or the National
Commission, as the case may be, shall record in writing the reasons for the same at
the time of disposing of the said appeal.

Radhika Rathore vs M/S. Exact Developers & Promoters

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.73,97,534/- 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/-.

2. 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.
3. 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/-

4. 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.

5. 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.

Conclusion:

From the above case study under section19(a)The complaint is 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.73,97,534/-. The
complainant informed the opposite party that she had already paid around Rs.70
lakhs and the building was almost ready and they expected to give possession by
31.12.2010 and the vide reply dated on 27.11.2015

On 27.3.2014 and 4.11.2015 and she could make the balance payment and take
possession of the unit booked by her.But 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/-but
when 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, the case of the complainant does not fall within the purview of the
explanation below section 2(1)(d) of the Consumer Protection Act.