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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Mrs. M. Shreesha, Presiding Member
Pranav Mittal and Ors. —Appellants
versus
M/s. Dynamic Infra Developers (P) Ltd.
and Ors. —Respondents
First Appeal No.115, 187, 188 of 2017
Decided on 27.2.2017
Counsel for the Parties:
For the Appellants: Mr. Himanshu Gupta
IMPORTANT POINT
Complainant cannot club three independent sale deeds to attract pecuniary jurisdiction of State Commission.
Headnote:Consumer Protection Act, 1986—Sections 2(1)(d) and 24A—Real estate—Purchase of flats—Shortcomings in construction—There is specific prayer for delivery of possession—There is continuing cause of action and complaint cannot be said to be barred by limitation—Merely because Complainant has booked three flats, it cannot be said that it is for commercial purpose and that Complainant falls within definition of Consumer within Section 2(1)(d) of Act—Purchase can be said to be for a commercial purpose only when it is shown that purchaser is engaged in business of purchasing and selling houses/plots on a regular basis solely with view to make profit by sale of such houses—Unless it is shown by bringing on record, some cogent material that a purchaser is engaged in purchase and sale of flats/ houses on regular basis with a view to make profit by such sale, mere purchase of more than one flat would not per se be sufficient to hold that purchase was for commercial purpose—However, no any illegality in last finding of State Commission that Complainant ought to have filed three separate Complaint, as three independent sale deeds were executed where value of goods and services and compensation claimed in each Complaint does not attract jurisdiction vested with State Commission—It would be open to Complainants to file Complaints before appropriate Forum. (Paras 12 to 15)
Result: Appeals disposed of.
Mrs. M. Shreesha, Presiding Member—For reasons cited in the applications seeking condonation of delay, the delay of 60 days in FA/115/2017, 110 days in FA/187/2017 and FA/188/2017 is hereby condoned.
2. Aggrieved by the orders in Complaint Nos. 827 of 2016, 828 of 2016 and 829 of 2016 passed by the State Consumer Disputes Redressal Commission, Delhi (in short the State Commission), the Complainants preferred these Appeals under Section 19 of the Consumer Protection Act,1986 (in short the Act). Since all the Appeals deal with common facts, they are being disposed of by this common order.
3. For the sake of convenience, First Appeal No. 115 of 2017 is being taken as the lead case.
4. The brief facts stated in the Complaint are that the Complainants have purchased three apartments from the Opposite Parties namely, G-230/B. S-230/B AND S-227/B at Blosk-B, “Tulsi Residency” at Parimma Marg, Goverdhan, Tehsil-Gorba, District Mathura vide three individual sale deeds, each dated 27.05.2014, after payment of the full consideration amount of Rs.16,05,000/- (Rs. 5,35,000/- each). It was averred that prior to the purchase of the subject property by the Complainant, a meeting was held between the parties in April 2014, wherein the Opposite Parties had informed the Complainant that certain works namely, flooring, kitchen furnishing, toilets, woodwork, wall paint, doors etc., remain incomplete and he was assured that the aforesaid incomplete works along with the internal infrastructure namely, lighting, sewerage, electric connection etc., would be completed within a period of 12 to 14 months. The same was acknowledged by the Opposite Parties vide letter dated 05.05.2014 inter alia on the basis of the assurance given by the Opposite Parties regarding completion of work. It is pleaded that the Complainant purchased the subject property on 27.05.2014, subsequently, when the Complainant visited the said property in July, 2014, he was surprised to observe that the balance work remained incomplete, and the same was brought to the notice of the Opposite Parties vide letter dated 28.07.2015, for which there was no response between July, 2015 and December, 2015. Several requests and reminders were made by the Complainant to the Opposite Parties, but there was no response. Thereafter a legal notice dated 28.02.2016 demanding completion of works and handing over of possession of the subject property was issued. Despite receipt of legal notice, it was pleaded that the Opposite Parties failed to complete the works.
5. Hence the Complainants approached the State commission seeking the following reliefs:—
“i) The Opposite Parties jointly and severally be directed to pay Rs. 24,67,848/-(interest added for the period between May 2014 to May 2016) to the Complainant alongwith interest @ 24% per annum until payment to the Complainant;
ii) In the alternative, the Opposite Parties jointly and severally be directed to pay to the Complainant interest @ 24% per annum on the total consideration amount of Rs.16,05,000/- from 01 June 2014 until completion of all balance works including internal infrastructure work such as roads, drainage system ,etc.(such that the subject property is ready to move in);
iii) Award Rs. 2 lacs as the cost of litigation in favour of the Complainant as against the Opposite Parties.”
6. The State Commission vide order dated 7.9.2016 dismissed the Complainant in limine observing as follows:—
“Once Sale deed is executed and possession is taken over person booking the same does not remain consumer. This is so as per the decision of National Commission in Smita Roy Vs. Excel Construction and another II (2012) CPT 204. The remedy of the complainant may lie in civil court for breach of agreement.
2. The second hurdle in the way of complainant is that he booked three flats. Apparently the purpose can ne to sell them later on when the prices increased. Thus it was with a view to earn the profit in which event booking would become for comm
