IMPORTANT POINT
Merely booking four flats by itself is not a circumstance to hold that the person is not a consumer.

JUDGMENT :

DHANANJAYA Y. CHANDRACHUD, J.

1. Admit.

2. The appellant filed a consumer complaint before the National Consumer Disputes Redressal Commission (“NCDRC”). The appellant alleged that there was a deficiency of service on the part of the developers in not executing agreements in respect of four flats which were booked by the appellant in a project called “Orchid Petals” located at Sector 49, Gurgaon. The following reliefs were sought in the complaint:

“It is therefore, most respectfully prayed that this Hon’ble Commission may kindly be pleased to direct the opposite parties to:

a. Execute the buyers agreement/sale deed with the complainant, qua flat Nos. 1103, 1203, 903 in tower no. 15 and flat no. 1402 tower no. 21 in Orchid Petals Condominium Complex 1 sector 49, Gurgaon, Haryana.

b. Pay Rs five lakhs as compensation for the harassment, agony and pain suffered by the complainant.

c. Pay cost of the proceedings; and/or

d. Any other/further compensation as complainant may be entitled may also be granted.

3. The respondents raised a preliminary objection to the maintainability of the complaint in their counter affidavit on the ground that since the appellant had booked four flats, the purpose was resale and commercial gain. Hence, it was pleaded that the appellant is not a “consumer” within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 (“Act”). The averments in that regard in the objection raised by the second respondent are as follows:-

“1. …The complainant had applied for these flats with a clear intention of resale. The purpose by applying for four flats i.e. on such a large scale by the complainant was only resale for commercial gain. The complainant, as is apparent from his complaint, intended to make short term profits by selling the four flats which were tentatively allotted to his; subject to certain conditions. The complainant had no intention to use the four flats as a residential/dwelling unit for himself or his family……”

4. The appellant contested the above objections and stated that the flats were not intended for commercial resale but for the members of his family. The appellant has made the following averments in response:

“1. It is admitted the complainant applied for the allotment of four flats in the ‘Orchid Petals’ housing project, but it is denied that the complainant applied for the flats for commercial resale and to earn commercial gains there-from. The complainant wanted to live near his family members and therefore, he applied for the flats. It is surprising he applied for the flats. It is surprising that how and in what manner the defendant no. 2 suo motto came to the conclusion of the intention of the complainant of not using the flats as residential house for himself or his family members and also about his financial capacity to pay the installments of the flats. The complainant belongs to prestigious alumini of India Institute of Management and is a successful entrepreneur having an Income of Rs. 2.18 Crore as per the ITR of Assessment Year 2005-2006, Rs. 1.52 Crore as per the ITR of Assessment Year 2004-2005, therefore the opposite Parties allegation that the complainant has no capacity to pay is incorrect.

5. The NCDRC rejected the consumer complaint and upheld the objection. The grounds which weighed with the NCDRC emerge from the following extract from its decision:

“7. ... The fact that the complainant had booked four flats makes it clear that the aforesaid booking obviously was not for the purpose of residence and the hidden purpose behind aforesaid four bookings was to make profits on re-sale of the properties. Our aforesaid conclusion is strengthened from the fact that the complainant admittedly booked four flats knowing fully well that the opposite parties did not have necessary sanctions and approvals for the project at the relevant time. The plea of the complainant that he had booked those flats for himself and his family members is not acceptable for the reason that in the