IMPORTANT POINTS
1) Not appropriate to classify such acquisition as a commercial activity merely on the basis of the number of houses purchased by a person, unless it is shown that he was engaged in the business of selling and purchasing of houses on a regular basis.
2) Burden is squarely upon the Opp. Party to prove the fact that complainant is indulging in the business of sale and purchase of flats.

ORDER

Deepa Sharma, Presiding Member.—The brief facts of the case are that complainant had booked an apartment bearing unit no. SY-B-32-03 in the project ‘SKYON’ of the opposite party situated at Golf Course Extension Road, Sector 60, Gurugram and made initial payment of Rs.15,00,000/- and an allotment letter dated 14.01.2011 was issued in his favour. A Builder Buyer Agreement was executed on 14.02.2012 and the total consideration amount of the subject flat was Rs. 2,39,89,784/-. Complainant had paid total sum of Rs.2,23,91,480/- on several dates. Certain additional charges were also raised from the complainant. It is submitted that due date of delivery of possession was 42 months with grace period of six months from the date of approval of the building plan. The delivery of the subject flat was not made within the stipulated period. Aggrieved, the complainant has filed the present complaint and has prayed that opposite party be directed to hand over the subject property alongwith delayed compensation containing all the facilities as promised under the Builder Buyer Agreement. In case the opposite party fails to deliver the possession, the direction to refund the principal amount of Rs.2,23,91,480/- be ordered alongwith interest @ 18% p.a. Several other reliefs were also sought in the complaint.

2. Complaint is contested by the opposite party. Several contentions have been raised. It is, however, not disputed that subject flat was allotted to the complainant and that the complainant had paid sum of Rs.2,23,91,480/-. It is contended that complainant is not a consumer since he already has two residential addresses (i) D-10, Kirti Nagar, Delhi and (2) Jawahar Nagar, Jaipur (Rajasthan). It is further contended that he is only investor in the subject property and he has also invested in another project of the opposite party in Victory Valley wherein he was allotted apartment no. B-2801. It is contended that he has invested for commercial gains i.e. either by way of income of rent and / or re-sell at an appreciated value. The reasons for delay in the completion of the construction are mentioned in details in the complaint.

3. In the rejoinder, complainant has submitted that he is not the owner of the properties mentioned by the opposite party in their written statement. Rather those properties are owned by the other members of his extended family and it is submitted that he is a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986 ( in short, the Act).

4. The parties led their evidences and have furnished their written synopsises.

5. We have heard the arguments and have perused the relevant record. One of the contention of the complainant is that it is a covered case covered by the order of this Commission dated 06.12.2019 in Consumer Case No. 1062 of 2018 titled Siddharth Vasisht Vs. M/s Ireo Pvt. Ltd. & Ors. It is submitted that appeal filed against the said order was dismissed by the Hon’ble Supreme vide order dated 11.12.2020 in Civil Appeal Diary No (s) 21634 of 2020 and, therefore, order of this Commission has attained finality and it is prayed that similar order shall be passed.

6. It is argued by the opposite party that complainant is not a consumer. It is submitted that complainant has given his two residential addresses in the complaint. Besides the subject flat, he had also booked a flat in Victory Valley, another project of the opposite party and he had taken possession of said flat no.B-2801 and conveyance deed has also been registered in his favour. It is argued that subject flat has been purchased not for residential purposes but for commercial purpose. It is submitted that since the complainant is not a consumer, complaint is liable to be dismissed.

7. The admitted facts are that the complainant had booked the subject property with the opposite party and the opposite party had failed to deliver the possession of the subject flat within the stipulated period and on account of this defi