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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. B.C. Gupta, Presiding Member, Dr. S.M. Kantikar, Member
Dr. Poonam Aggarwal —Appellant
versus
M/s. Gujral Associates and Anr. —Respondents
First Appeal No.101 of 2015
(Against the Order dated 14/01/2015 in Complaint No. 9/2012 of the State Commission Uttar Pradesh)
Decided on 6.3.2017
For the Appellant:Mr. Partha Sil and Mr. Tavish B. Prasad, Advocates
For the Respondents:Ms. Charu Ambwani and Ms. Manisha Ambwani, Advocates
IMPORTANT POINT
Commercial purpose cannot be inferred only going by number of flats booked.
Headnote:Consumer Protection Act, 1986—Section 2(1)(d)—Real estate—Booking of three flats—Denial of possession—Unless there is evidence on record that complainant was engaged in business of selling and purchasing of properties on a regular basis, it would not be proper to classify such acquisition as a commercial activity, merely on the basis of number of units booked by such person—View taken by State Commission is erroneous that complainant does not fall under definition of ‘consumer’ merely on account of the fact that she had booked three residential premises—Impugned order passed by State Commission set aside—Complainant held to be a consumer—State Commission shall deal with complaint after obtaining necessary evidence from parties in accordance with the law. (Paras 9 to 13)
Result: Appeal allowed.
Dr. B.C. Gupta, Presiding Member—This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 14.1.2015, passed by the UP State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in Consumer Complaint No. 09/12, filed by the present appellant Dr. Poonam Agarwal, vide which, the said complaint was ordered to be dismissed on the ground that the complainant did not fall under the definition of consumer, as she had made booking for allotment of 3 flats.
2. The facts of the case are that the complainant/appellant Dr. Poonam Aggarwal who is a retired Chief Medical Officer, booked three flats with the opposite parties (OP) builder/developer at a price of Rs.30 lakh for each flat. It has been stated in the grounds of appeal that the flats were booked, one for the complainant herself and two for her daughters. A cheque for Rs.10 lakh dated 12.07.2009 was issued for booking of the first flat, a cheque for Rs.20 lakh dated 25.07.2009 was issued for the second flat and another cheque for Rs.20 lakh dated 18.08.2009 was issued for the third flat. The OP builders assured that the flats will be ready for handing over the possession and executing the sale-deeds by the Deepawali Festival in 2010, or latest by December 2010. The balance price of Rs.40 lakh in total, for the three flats shall be realised by the OP builder at the time of handing over the possession of the flats. It has been alleged that the OP builders failed to keep their promise of handing over the flats by the time stated above. The complainant sent a legal notice to them on 16.11.2011, asking them to handover the possession and execute the sale deed within 10 days. However, on the failure of the OPs to handover the flats, the consumer complaint in question, was filed seeking directions to the OPs to give the possession of the flats and execute the sale-deeds after accepting the balance amount of Rs.40 lakhs from the complainant. A direction was also sought to pay interest @18% p.a. for the period of delay and Rs.5 lakh as compensation for mental agony and cost of litigation also.
3. The complaint was resisted by the OP builders by filing a written statement before the State Commission, in which they stated that the complainant had entered into an agreement with one Tejinder Pal Singh for selling of their residence for a sum of Rs.2,50,00,000/-. The advance money of Rs.50 lakh for booking of the three flats was given by the said Tejinder Pal Singh to the complainant. The OP Builder in turn, advanced loan to Tejinder Pal Singh to execute the sale-deed for the purchase of the residence of the complainant. However, the complainant had failed to get the sale deed affected for the said residence. The OP Builder stated that the said facts indicated that the complainant was not a ‘consumer’ and hence, the consumer complaint should be dismissed.
4. The State Commission vide impugned order observed that there were disputes between the parties as stated in the complaint, for which elaborate evidence would be required, but the State Commission itself was competent to decide the complicated questions of law and it will not be appropriate to ask the consumer to go to the Civil Court. However, the State Commission, relying on the orders passed by this Commission in “Chilkuri Adarsh v. M/s Ess Ess Vee Constructions” [Consumer Complaint No. 111/2012], concluded that since the complainants had booked more than one unit, they did not fall under the definition of ‘consumer’. The State Commission dismissed the consumer complaint accordingly. Being aggrieved against the said order passed by the State Commission, the complainant is before this Commission by way of the present appeal.
5. During arguments before us, the learned counsel for the appellant has drawn attention to a number of orders passed by this Commission on the issue, saying that the mere fact that the c
