A.P. Sahi, President

1. These two appeals arise out of two separate orders passed by the SCDRC, Haryana in two separate complaints being CC/10/2020 and CC/11/2020. Both the Complaints relate to allegations of deficiency in service and Unfair trade practice alleged on the part of the respondents in having failed to handover possession of the units booked by the complainants in the project named "Celebration Bazaar" floated by the respondents. Booking amounts were paid and according to the complainants on the failure of the opposite parties to have delivered possession, the complaints were instituted for the reliefs prayed for. Both the complaints have been partly allowed by the State Commission directing the opposite parties to handover actual physical possession of the allotted units to the complainants within a period of two months after receiving the balance outstanding amount and other charges referred to in the order.

2. The complainants are aggrieved on account of the denial of compensatory claims by the State Commission on account of the delay in handing over possession.

3. We are not repeating or detailing the facts with regard to the bookings made, the payments advanced and the facts relating to the terms & conditions of fulfilment as they are set out in detail in the impugned orders. It is admitted that the letters of allotment were issued and the complainant were awaiting possession.

4. We may point out that in CC/10/2020 (Sanjeev Kumar Gupta) the booking was for two commercial shops/spaces numbered as GF-24 & GF-25. The complainant cancelled the booking of the said shops and requested the opposite parties for a fresh allotment of shop No.AGF-23 in the Food Court Zone and to transfer the entire booking amount deposited earlier against the two shops that were booked towards the fresh allotment. The respondent/builder in a goodwill gesture accepted the said request of the complainant and allotted a commercial space in the Food Court for the basic price of Rs.58,43,534/-.

5. The complaint has been partly allowed in respect of the same premises.

6. In CC/11/2010 (Gaurav Bansal) the complainant had booked one shop namely GF-05 and in a similar fashion had requested to cancel the same and allot him shop No.AGF-05 in the Kids Zone which was yet another commercial space. The builder accordingly accepted the said request and made a fresh allotment of the said commercial space for a basic price of Rs.30,67,225/-. The complaint has therefore been allowed in respect of the said premises.

7. As noted above, both the complainants have filed these appeals with a delay of 82 days as reported by the office in both the appeals. IA/4113/2026 has been moved in FA/225/2026 praying for condoning the delay and a similar application being IA/4115/2026 has been filed in FA/226/2026 for the same purpose. The averments made in both the applications are almost similar but are general in nature alleging that the certified copies were despatched but i could not be obtained immediately for "bonafide reasons" and circumstances beyond the control or medical reasons." We have been unable to find any such bonafide reason or even a medical reason supported by any material to justify the said request. The allegations made in paragraph-2 of the delay condonation application in both the applications are therefore not convincing and appear to be excuses as held by the Apex Court in the case of Sheo Rai Singh & Ors. Vs. Union of India & Ann, (2023) 10 SCC 531.

8. However without delving into the same any further even otherwise we do not find any valid reason for entertaining the appeals on more substantial grounds.

9. When the matter had been taken up on 27th April, 2026 the following order had been passed: -

                          In order to ascertain as to whether the nature of the purchase of commercial spaces as pleaded were not intended for any commercial nature of transaction or otherwise, Ms. Subhi Pastor, learned counsel for the appellant prays for a week's time to assist the Bench.

                          List for admission hearing 05.05.2026.

                          Again on 5th May, 2026 the learned counsel for the appellants was called upon to assist the Bench keeping in view the legal position as indicated.

                          The order dated 5th May, 2026 is extracted herein under: -

                          "Having heard the learned Counsel for the Appellant we further find from the perusal of the repiy filed before the State Commission by the Respondents which is contained in Paragraph No. 2 and 3 of the Reply at Page No. 107 of the Paper book we prima facie do not find any finding recorded on the said allegations nor there is any document in the t shape of a pleading denying the said allegations. Apart from this the issue as to whether the nature of the transaction will amount to a transaction of commercial purpose or not has also to be explained in the tight of the latest decision of the Apex Court in the case of Poly Medlcure Limited versus BriHio Technologies Private Limited (2026) 3 SCC 201 on the next date.

                          List on 12.05.2026."

10. Today, learned counsel for the appellants has advanced her submissions contending that the ratio of the said decision and the previous decisions on the subject as to the dominant purpose of a transaction, has been categorically explained to mean that the nature of the transaction should be linked with close proximity to the generation of profits with some business so as to treat it as a business to business transaction. It is only then that a complaint can be excluded from being entertained under the Consumer Protection Act or else the complaint would be maintainable.

11. She urges that both the complainants had booked shops for earning their livelihood and their professions and the same was not a commercial purpose at all. She invited the attention of the Bench to the recital contained in the complaint in paragraph-6 of CC/10/2020 and to the contents of a similar paragraph-6 in CC/11/2020. In both these paragraphs the complainants have stated that they wanted an office for earning their livelihood. It is therefore contended that this issue was not disputed nor was it a ground that was assessed by the State Commission where the complaints have been partly allowed.

12. She therefore submits that in these appeals it would not be open for this Commission to assess such a plea when the complainants have come up for only enhancement of their claims for delay compensation and there is no appeal filed by the respondents. The submission is that this could have been a plea raised by the respondents and only then this Commission could have entered upon any such issue but in the appeals filed by the complainants this issue cannot be taken up for consideration so as to decline the entertaining of these appeals as this was neither an issue raised nor decided by the State Commission.

13. She then urged that the respondents had failed to lead any evidence to dislodge the averments contained in paragraph-6 of the complaints and therefore the same cannot be an issue for any consideration to deny the admission of these appeals for the reliefs prayed for. In essence it is urged that had the respondents questioned the maintainability of the complaint on the ground that the transactions were of commercial nature and therefore excluded under the Consumer Protection Act, then such a question could have been gone into but not otherwise.

14. We have considered the submissions raised and have also perused the decision relied on by the learned counsel in the case of K. Laxmanan vs. Thekkayil Padmini & Ors. (2009) 1 SCC 354 and also the ratio in the case of Poly Medicure Ltd. vs. Brillio Technologies Pvt. Ltd. (2026) 3 SCC 201.

15. The contention raised by the learned counsel for the appellants is interesting but this Commission cannot ignore a legal position to entertain an appeal which is a continuation of a complaint. This Commission has the authority to decide the jurisdiction of entertaining a complaint by the Commission only if such a complaint is maintainable under the provisions of the 2019 Act.

16. We have referred to paragraph-6 of both the complaints but we may point out the reply given by the respondents in paragraphs-2 & 3 of the reply filed by the respondents raising the issue of maintainability of the complaint itself. Paragraphs-2 & 3 of the reply in CC/10/2020 is extracted herein under:-

                          2. That the complainant is not a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986. The complainant is a businessman and running a steel business. However, besides this, complainant is engaged in several other commercial activities, including the business of property dealer/broker in the name and style M/s Mangla Estate. Initially in the project 'The Celebration Bazaar' of OP No.1 at Khanna (Punjab) the complainant booked two commercial spaces/shops GF-24 and GF-25 in his business name M/s Mangla Estate for commercial speculative gains to earn profit by selling the same at premium.

                          3. That subsequently, realizing that a big shop at another location i.e. Atrium Ground floor, under the Food Court Zone can earn more profit, the complainant cancelled the booking of shops GF-24 & GF-25 and made request to allot Commercial Space/Shop No. AGF-23 in Food Court Zone and transfer the entire amount deposited against the earlier booked two shops in the booking of Commercial Space/Shop No.AGF-

                          23. In view of Clause 4 (a) of the General Terms and Conditions duly agreed and signed by the complainant 25% of the Basic Sale Price was required to be forfeited on withdrawal of the application for allotment.

                          The said clause reads as under:-

                          4. WITHDRAWAL OF APPLICATION:

                          a) The allottee(s) of shop(s) may request AIPL for withdrawal of their application within 45 days of filing the application. The management shall refund the amount after deduction of 7.5% of Basic Sale Price as administrative charges within 60 days from the acceptance of withdrawal application and in case the withdrawal is after 45 days of application, the management shall refund the amount after deducting 20% of Basic sale Price as administrative charges However, as a goodwill gesture, on the request of the complainant, the booking of Commercial Space/Shops GF-24 & GF-25 was cancelled and the entire booking amount was transferred against booking of Commercial Space/Shop No.AGF-23. In this regard, a fresh allotment letter was issued to the complainant on 03.03.2015. It is admitted that the total price of Commercial Space/Shop No. AGF-23 was fixed at Rs.58,43,534/- (excluding Tax and Sinking fund) for the super built up area of 1731.55 sq.ft."

17. The reply which is similar in nature with a minor difference in words in paragraphs 2 & 3 in CC/11/2020 is extracted herein under: -

                          2. That the complainant is not a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986. The complainant is a businessman and running a steel business. However, besides this, complainant is engaged in several other commercial activities, including the business of sale purchase of properties.

                          Initially in the project 'The Celebration Bazaar1 of OP No. 1 at Khanna (Punjab) the complainant booked commercial space/shop GF-5 for commercial speculative gains to earn profit by selling the same at premium.

                          3. That subsequently, realizing that a shop at another location i.e. Atrium Ground floor, under the Food Court Zone can earn more profit, the complainant cancelled the booking of shop GF-5 and made request to allot Commercial Space/Shop No. AGF-5 in Kids Zone and transfer the entire amount deposited against the earlier booked shop in the booking of Commercial Space/Shop No.AGF-5. In view of Clause 4 (a) of the General Terms and Conditions duly agreed and signed by the complainant 25% of the Basic Sale Price was required to be forfeited on withdrawal of the application for allotment. The said clause reads as under:-

                          I I WITHDRAWAL OF APPLICATION

                          (a) The allottee(s) of shop(s) may request AIPL for withdrawal of their application within 45 days of filing the application, The management shall refund the amount after deduction of 7.5% of Basic Sale Price as administrative charges within 60 days from the acceptance of withdrawal application and in case the withdrawal is after 45 days of application, the management shall refund the amount after deducting 20% of Basic sale Price as administrative charges.

                          However, as a goodwill gesture, on the request of the complainant, the booking of Commercial Space/Shop GF-5 was cancelled and the entire booking amount was transferred against booking of Commercial Space/Shop No.AGF-5. In this regard, a fresh allotment letter was issued to the complainant on 20.12.2023.

18. In both these replies the respondents/opposite parties have categorically averred that the complainants were engaged in the enterprise of running a steel business and several other commercial activities "including the business of property dealer/broker in the name and style of M/s Mangla Estate" and "in the business of steel and in the sale and purchase of property." This reply of the respondents has nowhere been controverted by any rejoinder nor any evidence to rebut the same or establish that the units were not being acquired by the complainants for commercial purpose. Not only this, the initial payments of the shops booked by the complainants were got cancelled with a request to give a fresh booking for commercial space. A perusal of paragraph-3 of the reply of the respondents in CC/10/2020 and CC/11/2020 would indicate that the complainant had made a fresh booking in order to earn more profit. The bookings in the other complaint clearly were for a commercial space in the Kids Zone of the project. The categorical allegations are of entering into speculative ventures and gains to earn profits by reselling the properties on premium. These allegations remain uncontroverted with no proof or any material to demonstrate that the bookings were to earn livelihood through self-employment. Even otherwise the bookings were for commercial space for augmenting profits. The complaints therefore even though have been entertained and partly allowed, do not confer a right oh the appellants to further get an enhanced relief through an appeal in respect of the properties which have been acquired for generating profits.

19. Apart from this the delay has also been unconvincingly explained and consequently for all the reasons above both the appeals are accordingly dismissed. However, dismissal of these appeals should not be construed as interference with the impugned orders in any manner whatsoever at the instance of the appellants as we have only explained the legal position to avoid any misunderstanding of law.