ORDER
1. Challenge in this Appeal, by the Complainant, is to the order dated 28.01.2015, passed by the State Consumer Disputes Redressal Commission, Delhi at New Delhi (for short "the State Commission") in Consumer Complaint No. 49/10. By the impugned order, the State Commission has dismissed the Complaint, filed by the Appellant on the ground that he is not a 'Consumer' within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 (for short "the Act"), as he had initially booked three flats, later on changed to two flats, all in his name. The State Commission has come to the conclusion that if a 'consumer' purchases more than one residential unit, he knocks himself out of the ambit of the term 'consumer'.
2. Having heard learned Counsel for the parties, we are of the opinion that the order
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impugned in this Appeal is unsustainable.
3. In the reply filed on behalf of the Opposite Party, a Real Estate Developer, a preliminary objection was raised to the following effect:
"2. That the complainants are not a consumer within the meaning of Consumer Protection Act. The complainant even at presently is residing in their own residence. The complainants with a sole motive to earn some good profits made the investments in the residential project of the O.P. No.1 and after their was slowdown/crash in the real estate market the complainants instead of complying with the terms of the agreement initiated the present litigation. The Complainant is an investor with the commercial motive."
4. The said averment in the Written Version was contested by the Appellant/Complainant in his rejoinder by clearly stating that he did own any residential property and had purchased the flats for his family's own use and for the use of his ailing ex-army father-in-law and mother-in-law. It was also stated that the Developer was aware of the fact that the Complainant had purchased the flats for his own use.
5. In the evidence by way of affidavit, filed on behalf of the Developer, it was stated that the Complainant had made the investments in its residential project with the sole motive to earn some good profit but after the slowdown/crash in the real estate market, instead of complying with the terms of the agreement, he initiated the present litigation. In other words, it was reiterated that the Complainant had purchased both the flats as an investment with the commercial motive.
6. Having heard learned Counsel for the parties and carefully perused the material on record, we find that except for the aforesaid bald assertion, the Developer has failed to adduce even an iota of evidence in support of the aforesaid preliminary objection. Having raised the aforesaid specific plea, undoubtedly, onus to prove that the flats in question had been purchased by the Complainant for the sole purpose of trading in them was on the Developer, which it has failed to discharge.
7. In view of the above and in the light of several decisions by this Bench, including orders dated 21.07.2015 and 05.11.2015 passed in Sai Everest Developers & Anr. V. Harbans Singh Kohli & Ors. (First Appeal No. 530 of 2015) and other connected Appeals and Rajesh Malhotra & Ors. V. Acron Developers Pvt. Ltd. & Ors., II (2016) CPJ 125 (NC), wherein it has been held that unless it is shown by brining on record some cogent material that the 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 more than one flat would not per se be sufficient to hold that the purchase was for commercial purposes, the decision of the Fora below, laying down an abstract proposition that if more than one residential unit is purchased by one person, he ceases to be a 'consumer', cannot be sustained.
8. At this stage, it is submitted by learned Senior Counsel, appearing for the Developer,
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that since there is a divergence of opinion between the Benches of this Commission on the afore-noted issue, the case may be referred to a Larger Bench.
9. Having regard to the pleadings in the case and the fact that lately there appears to be no divergence of opinion on the point, we do not find it to be a fit case for reference to the Larger Bench. Accordingly, the prayer is rejected.
10. Consequently, the Appeal is allowed; the impugned order is set aside; and the Complaint is restored to the board of the State Commission for adjudication on merits. The Appellant shall be entitled to costs, which are quantified at ₹20,000/-.
11. Since the Complaint was filed as far back as in the year 2010, we request the State Commission to take a final decision in the case as expeditiously as practicable and in any case not later than three months from the date of receipt of a copy of this order, more so, when it is pointed out that the case is ripe for final hearing, inasmuch as even the written submissions have also been filed by the parties.
12. The parties/their Counsel are directed to appear before the State Commission on 13.02.2017 for further proceedings.
13. The Appeal stands disposed of in the above terms.
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D.K. JAIN
PRESIDENT
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M. SHREESHA
MEMBER
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