National Consumer Disputes Redressal
Dr. Poonam Aggarwal vs M/S. Gujral Associates & Anr. on 6 March, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 101 OF 2015 (Against the Order dated 14/01/2015 in Complaint No. 9/2012 of the State Commission Uttar Pradesh) 1. DR. POONAM AGGARWAL WIFE OF DR. O.P. AGARWAL R/O. A-1, RAMPUR GARDEN, BAREILLY-243001 ...........Appellant(s) Versus 1. M/S. GUJRAL ASSOCIATES & ANR. THROUGH ITS PARTNER MR. PARAMJEET SINGH GUJRAL, GUJRAL APARTMENTS OPPOSITE JAIN, TEMPLE, RAMPUR GARDEN, BAREILLY-243001 2. MR. PARAMJEET SINGH GUJRAL, PARTNER M/S. GUJRAL ASSOCIATES, GUJRAL APARTMENTS, MACNAIR ROAD, PREM NAGAR, BAREILLY ...........Respondent(s)
BEFORE: HON'BLE DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Appellant : Mr. Partha Sil, Advocate Mr. Tavish B. Prasad, Advocate For the Respondent : Ms. Charu Ambwani, Advocate Ms. Manisha Ambwani, Advocate Dated : 06 Mar 2017 ORDER PER DR. B.C. GUPTA, 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 ₹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 ₹10 lakh dated 12.07.2009 was issued for booking of the first flat, a cheque for ₹20 lakh dated 25.07.2009 was issued for the second flat and another cheque for ₹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 ₹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 ₹40 lakhs from the complainant. A direction was also sought to pay interest @18% p.a. for the period of delay and ₹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 ₹2,50,00,000/-. The advance money of ₹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 complainant had booked three residential premises with the OP builder, does not lead to the conclusion that the complainants are not consumers under section 2(1)(d) of the Consumer Protection Act, 1986. The learned counsel has drawn attention to an order passed by this Commission in "Kavita Ahuja vs. Shipra Estate Ltd .& ors. and allied matters" [CC No. 137/2010 decided on 12.02.2015], in support of his arguments. The said view had further been confirmed in the orders passed by this Commission on 05.11.2015 in "Rajesh Malhotra & Ors. vs. Acron Developers & Ors. [FA No. 1287/2014 decided on 05.11.2015]". In another order passed by this Commission in "GVSN Murthy vs. M/s. Suchir India Infratech (P) Ltd. & Anr. [FA No. 65/2014 decided on 11.08.2015]" also, a similar view had been taken that if there was no evidence of the property being used for commercial purpose, the applicant did fall under the definition of 'consumer'.
6. Per contra, the respondents submitted written submissions at the time of arguments, saying that there was a transaction between the complainant and Tejinder Pal Singh, according to which, the residence of the complainant was to be sold to Tejinder Pal Singh for a sum of ₹2,50,00,000/-. The initial amount of ₹50 lakh for booking of the 3 flats had been provided by Tejinder Pal Singh to the complainant. In response to the legal notice from the complainant, the OP/respondent as well as Tejinder Pal Singh had replied that they were ready to get the sale-deed executed. The learned counsel has drawn attention to the following orders passed by the Hon'ble Supreme Court and this Commission in support of their arguments that the complainant did not fall under the definition of 'consumer':-
1.
Laxmi Engineering Works vs. PSG Industrial Institute (1995) 3 SCC 583
2. Jag Mohan Chabbra vs. DLF Universal Ltd.
IV (2007) CPJ 199 NC
3. Chilikuri Adarsh vs. M/s Ess Ess Vee Constructions CC No. 111/2012 decided on 2.07.12
4. Shinghal Finstock Pvt. Ltd. vs. Jaypee Infratech Ltd.
CC No. 250/2012 decided on 1.10.12
5. Saavi Gupta vs. M/s Omaxe Azorim Developers Pvt. Ltd.
CC No. 208/2012decided on 1.10.12
6. Sunil Gupta vs. Today Home Infrastructure Pvt. Ltd.
CC No. 5/2014decided on 3.02.14
7. Indrajit Dutta vs. Samriddhi Developers Pvt. Ltd.
FA No. 1219/2014decided on 5.02.15
8. Ashok Thapar vs. Supreme Indosaigon Associates CC No. 31/2008 decided on 19.11.15
7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
8. The main issue that requires consideration in this first appeal is whether the appellant/complainant fall under the definition of consumer as per section 2(1)(d) of the Consumer Protection Act, 1986 in the light of the fact that the complainant has booked three residential flats with the OP Builder. The matter has been thrashed out in detail in recent orders, passed by this Commission in a number of cases. In the case, "Kavita Ahuja vs. Shipra Estate Ltd .& ors. and allied matters" (supra), after quoting the judgment of the Hon'ble Supreme Court in "Laxmi Engineering Works vs P.S.G. Industrial Institute [(1995) 3 SCC 583]", it was stated as under:-
"6. Going by the Dictionary meaning of the expression 'Commerce' as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged. In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services. It would ordinarily include activities such as manufacturing, trading or rendering services. In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).
7. Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.
8. As observed by the Hon'ble Supreme Court in Laxmi Engineering Works (supra) what is a 'commercial purpose' is a question of fact to be decided in the facts of each case and it is not the value of the goods that matters but the purpose for which the goods brought are put to. The same would be equally applicable to for hiring or availing services.
9. In any case, it is 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."
9. The view taken by the National Commission in the above order, has been followed in "Rajesh Malhotra & Ors. vs. Acron Developers & Ors." (supra), in which case also, after considering the order of the Supreme Court in "Laxmi Engineering Works vs P.S.G. Industrial Institute" (supra), it was observed as follows:-
"Having examined the question, formulated above, on the touchstone of the aforesaid broad principles, we are of the opinion that in the absence of any evidence adduced by the Opposite Parties in support of the said preliminary objection, the State Commission fell into an error in arriving at the conclusion that the two Villas in question had been purchased by the Complainants for "commercial purpose"
10. In "GVSN Murthy vs. M/s. Suchir India Infratech (P) Ltd. & Anr." (supra), as well it was stated as follows:-
"Recently, vide order dated 12.02.2015 in Consumer Complaint No. 137 of 2010 and other connected matters, a Coordinate Bench of this Commission has elaborately dealt with the said question. It has been held that unless there is evidence on record to show that the Complainant had bought more than one flat for the purpose of trading in the same, a bald assertion by the party that these had been bought for the purpose of making profits is not sufficient to hold that the same were for "commercial purpose". We are in complete agreement with the said principle."
11. The OP builders have drawn attention to an order passed by this Commission in "Ashok Thapar vs. Supreme Indosaigon Associates & Anr." (supra), wherein three office premises had been booked with the builder by the complainants. This Commission concluded that the booking was for a commercial purpose and hence, the complainant did not fall under the definition of 'consumer'. However, this contention of the OP Builder is not tenable because the facts in the present case are quite different from the facts in "Ashok Thapar vs. Supreme Indosaigon Associates & Anr." (supra). It was found in the said case that the complainant was already having sufficient income at the time commercial flats in question were booked by him. It was concluded that the commercial flats had not been booked exclusively for the purpose of earning his livelihood and he was seeking to carry out a different activity in the flats booked which was different from the activity, from which he was having substantial income already. In the present case, residential flats have been booked for the complainant and her daughters. Hence, the conclusion in "Ashok Thapar vs. Supreme Indosaigon Associates & Anr." (supra), is not applicable to the present case.
12. It is amply made clear from a perusal of the judgments/orders quoted above, that unless there is evidence on record that the complainant was engaged in the 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 the number of units booked by such person. In the present case, the complainant who is a retired Chief Medical Officer booked three residential premises, stating that the said premises are booked for herself and for her two daughters. There is not an iota of evidence to hold that such booking has been made for the purpose of earning profit by buying or selling said properties. Relying upon the principles laid down in the judgments passed by this Commission quoted above, it is held that the view taken by the State Commission is erroneous that the complainant does not fall under the definition of 'consumer' merely on account of the fact that she had booked three residential premises.
13. As a result of the foregoing discussion, this first appeal is allowed and the impugned order passed by the State Commission is set aside. The complainant is held to be a consumer under the facts and circumstances of the case. In so far as the merits of the case are concerned, the State Commission shall deal with the complaint after obtaining the necessary evidence from the parties in accordance with the law. The first appeal is allowed. The case is accordingly remitted to the State Commission for further proceedings. The parties have been directed to appear before the State Commission on 20.04.2017. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER