Consumers cannot be denied protections based on unsubstantiated claims of commercial purpose in property transactions.

1. The present complaint has been filed by the complainants before this commission alleging deficiency of service and unfair trade practice by the opposite party and has prayed the following:
(a) allowing refund for a sum of Rs. 55,06,046 (Rs. Fifty Five Lakh Six Thousand and Forty Six Only) in favour of the complainants and against the opposite party.
(b) direction the opposite party to pay an interest @ 21% per annum from the date of complaint till the date of judgement.
(c) directing the opposite party to pay the interest @ 21% per annum from the date of decree to the date of payment.
(d) Any other relief or benefit in the interest of justice may also be in favour of the complainants.

2. Brief facts necessary for the adjudication of the present complaint are that on 11.10.2010, the Complainants booked a flat bearing No. T - 4/1202, with the opposite party in the project ˜TUSCAN HEIGHT' situated at Kundli, Sonepat, Haryana. Thereafter, an Apartment Buyer Agreement was executed between the parties on 25.7.2011. As per Clause 30 of an Apartment Buyer Agreement dated 25.7.2011, the Opposite Party had to hand over the possession of the said flat within 30 months from the date of execution of this agreement. However, till date the possession of said flat has not been handed over to the complainants.
The complainants over the time had paid a sum of Rs. 37,81,153 to the Opposite Party as and when demanded by it. The complainants also sent a legal notice dated 4.7.2016 to the Opposite Party asking for refund of the amount along with interest but was of no avail.

3. The Opposite Party has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The Counsel of the Opposite Party submitted that the Complainants are not consumer under the Consumer Protection Act, 1986 as they invested the money to earn profit, which amounts to commercial purpose. The Counsel for the opposite party further submitted that there was default in making payment on the part of Complainants.

4. Both the parties have filed their Evidence by way of Affidavit in order to prove the averments on record.

5. We have perused the material available on record and heard the Counsel for the parties.

6. The fact that the complainants had booked a flat with the Opposite Party is evident from the Apartment Buyer Agreement dated 25.7.2011 (Annexure No. IV (colly). Payment to the extent of Rs. 37,81,153 has been made by the complainants, is admitted by the opposite party in Para 8 of its written statement.
Whether Complainants fall in the Category of ˜Consumer' under the Consumer Protection Act, 1986 ?

7. The Opposite Party contended that the complainants are not Consumer as defined under the Consumer Protection Act, 1986 as they invested the money to earn profit, which amounts to commercial purpose. To resolve this issue, we deem it appropriate to refer to Aashish Oberai v. Emaar MGF Land Limited , reported in (2017) I CPJ 17(NC), wherein it is held as under:
6. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.

8. It is imperative to refer to the dicta of the Hon'ble Nationa