National Consumer Disputes Redressal
Sai Everest Developers & Anr. vs Harbans Singh Kohli & 2 Ors. on 21 July, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 530 OF 2015 (Against the Order dated 03/06/2015 in Complaint No. 168/2014 of the State Commission Maharastra) WITH IA/4170/2015 1. SAI EVEREST DEVELOPERS & ANR. A Registered Partnership Firm,Through its partner Shri. Govind petha Patel Office No.63, Vignahar Complex, Opp. navrang Restaurant, Plot No.F-72,Sector-12, Kharghar, Navi Mumbai-410210, Maharashtra. ...........Appellant(s) Versus 1. HARBANS SINGH KOHLI & 2 ORS. 5,Silver send, Juhu tara road,Juhu, Mumbai-400049. ...........Respondent(s) FIRST APPEAL NO. 531 OF 2015 (Against the Order dated 03/06/2015 in Complaint No. 169/2014 of the State Commission Maharastra) WITH
IA/4170/2015 1. SAI EVEREST DEVELOPERS & ANR. A Registered Partnership Firm,Through its partner Shri. Govind petha Patel Office No.63, Vignahar Complex, Opp. navrang Restaurant, Plot No.F-72,Sector-12, Kharghar, Navi Mumbai-410210, Maharashtra. ...........Appellant(s) Versus 1. HARBANS SINGH KOHLI & 2 ORS. 5,LILVER SEND, JUHU TARA ROAD, JUHU MAHARASTRA MUMBAI ...........Respondent(s) FIRST APPEAL NO. 532 OF 2015 (Against the Order dated 03/06/2015 in Complaint No. 170/2014 of the State Commission Maharastra) WITH IA/4170/2015 1. SAI EVEREST DEVELOPERS & ANR. SHRI GOVING PETHA PATEL OFFICE NO.63.,VIGNAHAR COMPLEX, OPP. NAVRANG RESTAURANT, PLOT NO.F-72, SECTOR-12, KHARGHAR, NAVI MUMBAI-410210 MAHARASHTRA., ...........Appellant(s) Versus 1. HARBANS SINGH KOHLI & 2 ORS. 5,SILVER SEND,JUHU TATA ROAD, JUHU, MUMBAI-400049 ...........Respondent(s) FIRST APPEAL NO. 533 OF 2015 (Against the Order dated 03/06/2015 in Complaint No. 171/2014 of the State Commission Maharastra) WITH IA/4170/2015 1. SAI EVEREST DEVELOPERS & ANR. SHRI. GOVIND PETHA PATLEL OFFICE NO.63,VIGNAHAR COMPLEX, OPP. NAVRANG RESTAURANT, PLOT NO.F-72, SECTOR-12, KHARGHAR, NAVI MUMBAI-410210 MAHARASHTRA ...........Appellant(s) Versus 1. HARBANS SINGH KOHLI & 2 ORS. 5,SILVER, SEND, JUHU TARA ROAD, JUHU,MUMBAI-400049 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MRS. M. SHREESHA, MEMBER For the Appellant : Mr. A.K. Vali, Advocate Mr. Tuhin, Advocate Mr. Bhaskar Vali, Advocate For the Respondent :
Dated : 21 Jul 2015 ORDER These four Appeals, by the Real Estate Developers, call in question the correctness and legality of a common order dated 03.06.2015 passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short "the State Commission") in Consumer Complaints No. CC/14/168 to CC/14/171. By the impugned order, while admitting the Complaints for adjudication, the State Commission has rejected the plea of the Appellants that before admitting the Complaints and calling upon them to file their written versions, the preliminary objection raised by them in their application regarding the maintainability of the Complaints should be decided. In short, the objection of the Appellants is that the Complainant having booked four flats in his own name, and paid the entire sale consideration from his account, it stands established that he had purchased the flats for "commercial purpose" and, therefore, he cannot be considered to be "consumer" within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. The relevant portion of the impugned order reads as follows:
"We would restrain ourselves from making any comments on the plea raised, since they would have been gone into when the Commission hears the complaints on merits. The question as to whether four flats were indeed purchased for being gifted to four daughters of the complainant is a mixed question of facts and then question of law. Judgments in the matter of Mr. Sanjay Bansal or M/s. Savi Gupta do not lay down any blanket proposition that purchase of more than one property would automatically result into conclusion that such purpose is for commercial purpose by way of investment. In any case, this comment may be ignored. At the time of hearing the matters will be heard on merits finally. In our view, we see no difficulty in admitting the complaints. Therefore, complaints are admitted. Notice after admission is waived by the opponents. Adjourn on 03/07/2015 for filing written version by the opponents. Ad-interim relief if any, to continue till then."
Mr. Vali, learned Counsel appearing for the Appellants, has vehemently submitted that it is settled proposition of law that when a question of jurisdiction of the Forum to entertain the Complaint is raised at the threshold, such an objection has to be adjudicated as a preliminary objection. In support, reliance is placed on a decision of the Hon'ble Supreme Court in K. Sagar, Managing Director, Kiran Chit Fund, Musheerabad Versus A. Bal Reddy And Anr., (2008) 7 SCC 166.
Thus, the short question for consideration at this stage is as to whether the State Commission was justified in "admitting" the Complaints by observing that the question of maintainability of the Complaints on the ground that purchase of four flats for being gifted to the four daughters of the Complainant amounts to "commercial purpose", shall be examined at the time of final hearing of the Complaints.
Without expressing final opinion on the afore-stated proposition, we are of the prima facie view that unless it is shown by bringing on record some cogent material that a purchaser is engaged in the purchase and sale of flats/houses on regular basis with a view to make profit by sale of flats/houses, a mere purchase of a more than one flat would not per se be sufficient to hold that the purchase was for "commercial purposes".
In that view of the matter, we do not find any illegality in the impugned order, directing the Appellants herein to file their written versions, which would be necessary for effectual adjudication on the said objection as well. It is manifest from the order that after the pleadings and evidence has been brought on record, the State Commission would decide the question of its jurisdiction to entertain the Complaints, before proceeding to deal with the rival stands on the claims made in the Complaints. The said exercise would be in consonance with the ratio of the decision of the Hon'ble Supreme Court in K. Sagar (supra).
In the result, the Appeals fail and are dismissed in limine but with the above observations.
......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER