Col. Kuldip Singh (S) v. Emaar Mgf Land Ltd. And Another Through Its Branch Manager (S).

due date of possession has already expired and the complaint was filed before the State Commission for getting refund of the amount paid to the OP. The OP raised objection that the complainant was residing in his house in Chandigarh and therefore, complainant was not a consumer. The State Commission after hearing both the parties agreed with the assertion of the OP and has dismissed the complaint on the sole ground that the complainant was not a consumer. Learned counsel referred to the following judgments to emphasize that this commission has allowed refund in similar cases:

1. Emaar MGF Land Ltd. and Anr. Vs. Amit Puri, First Appeal No.250 of 2014 decided on 30.3.2015 by this Commission.

2. Emaar MGF Land Ltd. and Anr. Vs.Dilshad Gill, First Appeal No.345 of 2014 decided on 27.5.2015 by this Commission.

3. Emaar MGF Land Ltd. and Anr. Vs. Dayal Singh, First Appeal No.462 of 2014 decided on 3.7.2015 by this Commission.

4. Emaar MGF Land Ltd. and Anr. Vs. Punita Singh and another, First Appeal No.343 of 2014 decided on 17.5.2015 by this Commission.

5. Learned counsel for the appellant specifically mentioned that in

the case, F.A. No.250 of 2014 in Emaar MGF Land Ltd. and another vs. Amit Puri decided by three Member Bench of this Commission, this Commission has not accepted the contention of the OP and has allowed refund though in that case also an objection was raised by the OP that the complainant was not a consumer as he was an NRI. It was further clarified by the learned counsel that the house in Chandigarh is an old house where the complainant has been living for more than 40 years but due to his old age, he wanted to shift to Mohali due to better environment and health conditions. He is not purchasing this house for any investment purpose or for any re-sale as has been observed by the State Commission without any evidence in this regard. The learned counsel prayed that the appeal may be allowed and the refund of the deposited amount be ordered. Learned counsel for the appellant also mentioned that the OP has alleged that some of the family members have also booked the plots in the same project. In this regard, the learned counsel argued that adult family members are independent and can purchase separate plots and the fact of their purchasing separate plots cannot debar the complainant from being the consumer.

6. On the other hand, learned counsel for the respondent/OP stated that this Commission has taken a consistent view that if the complainant has more than one residential unit or has applied for more than one residential unit, he would not be treated as consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. He stated that he is not arguing on the merits of the case rather he is only arguing on this technical point on which the complaint has been dismissed by the State Commission. To prove his point, the learned counsel relied upon the following judgments of this Commission wherein this Commission has not treated the complainant as consumer if he had booked more than one unit.

1. Chilukuri Adarsh Vs. Ess Ess Vee Constructions, III (2012) CPJ 315 (NC),

2. Jag Mohan Chhabra and another vs. DLF Universal Ltd., IV(2007) CPJ 199 (NC)

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3. Madhu Saigal and anther Vs. Omaxe Buildhome Pvt. LTd., 2014 SCC OnLine NCDRC 134

4. Travel India Bureau Pvt. Ltd. vs. HUA and others, II (2008) CPJ 329 (NC)

5. Sunil Gupta vs. Today Homes, CC No.5of 2014 decided on 3.2.2014 by National Commission,

7. The learned counsel further stated that as these judgments have been given by Benches consisting of two Members, the Bench consisting of single member is bound by the law laid down by these Benches. To support his arguments, he referred to the judgment of Hon'ble Supreme Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (Civil Appeal Nos.10941-10942 of 2013) decided on 4th December, 2015.

8. Further, the learned counsel for the respondent stated that the complainant had suppressed the information of his house at Chandigarh and any decree on the basis of fraud is a nullity. To support his assertion, the learned counsel referred to the case S.P. Chengalvaraya Naidu (dead) by LRs vs. Jagannath (dead) by LRs and others, (1994) 1 SCC 1.

9. I have given a thoughtful consideration to the arguments of both the parties and have thoroughly examined the record. All the five judgments referred by the learned counsel for the respondents wherein this Commission has taken a view that if the complainant has booked two units, it will be presumed to be a commercial purpose and the complainant has not been treated as a consumer as defined under the Consumer Protection Act, 1986. The present case is a peculiar case where the OP has alleged that the complainant is already residing at one unit at Chandigarh and therefore, he cannot book a house at Mohali.

10. The limited point for consideration in the present case is whether the complainant is a consumer if he is residing at one flat and has booked plot with the OP. First of all, the judgments referred to by the learned counsel for the respondents relate to those cases where the complainant had booked more than one unit, whereas in the present case, the facts are totally different and the complainant has booked only one residential plot. Everybody when he or she books a flat may be residing at some place or the other. Just by virtue of residing at one place, the complainant cannot lose his right to file a complaint. I find force in the arguments of the learned counsel for the appellant that appellant wants to settle at Mohali at his old age on environment and health grounds. He may later on dispose of his old flat at Chandigarh. I find that the complainant's case is not covered by the judgments cited by the learned counsel for the respondents as explained above.

11. Moreover, this Commission in a number of recent judgments has taken a view that if the complainant is not involved in trade or business of the house/ flats/plots, he will not be barred from filing complaint. In similar case where the complainant was alleged to have many residential premises and he booked other villa with the same opposite party, this Commission in the case of Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14.09.2016, held as follows:-

"In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. 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

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acquisition of the house is for a commercial purpose".

It was also observed as follows:-

"It would be pertinent to note that there is no evidence of the complainant having purchased and then sold any residential property. Therefore, it would be difficult to say that he was engaged in the business of the buying and selling of the property or that villa in question was booked by him for speculative purposes".

12. In another case, Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd., I(2016) CPJ31(NC), wherein three flats were booked by the complainant, this Commission held the complainant to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and held as follows:-

"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

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the business of selling and purchasing of houses on a regular basis. If, for instance, a person has two-three children in his family and he purchased three houses one for each of them, it would be difficult to say that the said houses were purchased by him for a commercial purpose. His intention in such a case is not to make profit at a future date but is to provide residential accommodation to his children on account of the love and affection he has for his children. To take another example, if a person has a house say in Delhi but he has business in other places as well and therefore, purchases one or more houses at other places where he has to live presently in connection with the business carried by him, it would be difficult to say that such acquisition is for commercial purpose. To give one more example, a person owning a house in a Metropolitan city such as Delhi, or Mumbai, may acquire a house at a hill station or a place, which is less crowded and more peaceful than a Metropolitan city, in my view, it cannot be said that such acquisition would be for commercial purpose. In yet another case, a person may be owning a house but the accommodation may not be sufficient for him and his family, if he acquires one or more additional houses, it cannot be said that he has acquired them for commercial purpose. Many more such examples can be given. Therefore, it cannot be said that merely because of the complainant had agreed to purchase three flats in the same complex the said acquisition was for a commercial purpose".

13. This Commission, in Rajesh Malhotra & Ors. Vs. Acron Developers & 2 Ors., First Appeal No. 1287 of 2014, decided on 05.11.2015 held as follows:-

"12. Therefore, in order to determine whether the goods are purchased for commercial purpose, the basic pre-requisite would be whether the subject goods have been purchased or the services availed of with the prime motive of trading or business activity in them, for the purpose of making profit, which, as held in Laxmi Engineering (supra) is always a question of fact to be decided in the facts and circumstances of each case".

14. On the basis of the above judgments, it is clear that the State Commission has taken an erroneous view of the fact that the complainant had a house in Chandigarh. It is evident that complainant is not involved in trading of flats/plots. Moreover, adult members of his family have also booked the plots in the project of the OP but this will not disentitle the complainant from being a consumer for his own booked plot.

15. Based on the above considerations, I find merit in the appeal and the same is allowed. The order dated 19.8.2015 of the State Commission is set aside. The matter is remanded to the State Commission for deciding the complaint on merits in a time bound manner preferably within a period of six months.

16. Parties to appear before the State Commission on 12.2.2018.

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PREM NARAIN

PRESIDING MEMBER

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