STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Miscellaneous applications bearing no.852, 853 and 854 of 2020 in Consumer Complaints bearing No.405, 406 and 407 of 2018
Paramjit Sarao Vs. M/s Manohar Infrastructure & Constructions Pvt. Ltd. & and ors.
Present through video conferencing:
Sh.Ravi Nayak, Advocate for the non-applicants/complainant(s). Sh. I.P. Singh, Advocate for the applicants/opposite parties.
BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.
MRS. PADMA PANDEY, MEMBER.
MR.RAJESH K. ARYA, MEMBER.
JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT
By this order, we propose to dispose of the aforesaid three miscellaneous applications. Since, the issues involved in the above applications, here and there, of fact and law are the same, therefore, we are of the opinion that these applications can be disposed of, by passing a consolidated order. At the time of arguments in these applications, Counsel for the applicants/opposite parties contended with vehemence that the following objections/issues raised in these applications be decided first, irrespective of the fact that the same have also been raised in the main consumer complaints:-
That since complicated questions of fact and law are involved in these cases, the same can only be adjudicated by the civil court.
1.
That since original documents have not been produced on record and as such the photocopies of various documents placed on record cannot be taken into evidence without any proof in that regard and as such, the complainants and other witnesses are required to be examined by the applicants/opposite parties to prove their case.
2.
That the non-applicants/complainants cannot be allowed to place on record fresh power of attorneys at belated stage, once the same were found to be defective at initial stage.
3.
That because the non-applicants/complainants have purchased three properties from the applicants/opposite parties as such the same being commercial transaction, they did not fall within the definition of consumer.
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2.
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Accordingly, we have heard the contesting parties in these applications and have also gone through the entire record thereof, very carefully.
3.
The first question which arises for consideration is, as to whether, complicated questions of fact and law are involved in these cases or not. It may be stated here that perusal of record reveals that these are the simple cases, wherein the complainants have leveled allegations of non allotment of plots and flat nos. in their favour; non-execution of agreements under the provisions of Section 6 of the PAPR Act within the reasonable time; non obtaining of necessary approvals before launching the project in question; and non-delivery of possession of plots and flat to them by the applicants/opposite parties within a reasonable period from the date of bookings, despite the fact that substantial amounts stood received by them. The nature of such transactions is covered by the expression 'service'. Our view is supported by the principle of law laid down by the Hon'ble Supreme Court of India in in Narne Construction P. Ltd., etc. etc. Vs. Union of India and Ors. Etc., (supra) II (2012) CPJ 4 (SC) and Haryana Agricultural Marketing Board Vs. Bishamber Dayal Goyal and Ors., CIVIL APPEAL NO. 3122 of 2006, decided on March 26, 2014. Relevant part of Haryana Agricultural Marketing Board cases (supra) is reproduced hereunder:-
4.
"……….. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K Gupta .. Gupta [4] and duly discussed the wide connotation of the terms "consumer" and "service" under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K Gupta .. Gupta (supra) which is provided hereunder :
"5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para
6):
"…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act…." In this view of the matter, the present cases did not involve any complicated questions of fact and law and as such, this Commission is competent to decide the same and there is no need to relegate these cases to the civil court.
The next question that falls for consideration is, as to whether, the complainants and other witnesses are required to be examined by the applicants/opposite parties, to prove the authenticity of documents placed on record by them. It may be stated here that it is settled law that cross- examination of a witness or a party before Consumer Fora under the Consumer Protection Act is not a rule. It is only an exception. If cross-examination of a person is to be permitted in every case under the Consumer Protection Act, the whole object of this Act would be lost and there would hardly be any difference in proceedings before a Forum under the Act and a Civil Court. Many disputes involving high stakes and huge values are decided in writ jurisdiction by the High Courts and Supreme Court merely on the basis of affidavits. It, therefore does not appeal to reason that when Consumer Protection Act permits evidence to be led by means of affidavits right of cross-examination must be resorted to in every case. It is also a settled law that a Consumer Fora under Consumer Protection Act must exercise extreme caution in permitting cross-examination. Our this view is supported by the observations made in Con Décor vs. Smritikana Ghose and another, 2002 CTJ 692 (CP) (NCDRC), (para 16), wherein the three Member Bench of Hon'ble National Commission, while placing reliance on the Hon'ble Supreme Court's Judgment rendered in State of Jammu and Kashmr Vs. Bakshi Ghulam Mohammad, 1996, Supp. SCR 401 observed as under:-
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"….We would, therefore, hold that cross-examination of a witness or a party before a forum under the Consumer Protection Act is not a rule. It is only an exception. When reputation of a person, like a medical practioner in the case of alleged medical negligence is involved, he will have a right to cross-examine any person alleging professional negligence against him. When it is merely a question as to veracity of the statement of the witness, cross-examination cannot be permitted. In that case to contradict a party can certainly file his own affidavit or of any other witness. If cross-examination of a person is to be permitted in every case under the Consumer Protection Act, the whole object of this Act would be lost and there would hardly be any difference in proceedings before a Forum under the Act and a Civil Court. Many disputes involving high stakes and huge values are decided in writ jurisdiction by the High Courts and Supreme Court merely on the basis of affidavits. It, therefore does not appeal to reason that when Consumer Protection Act permits evidence to be led by means of affidavits right of cross-examination must be resorted to in every case. A forum under Consumer Protection Act must exercise extreme caution in permitting cross- examination. We, therefore, do not find any merit in any of the questions raised by the petitioner. This petition is, therefore, dismissed"
In the present cases, it is significant to mention here that the documents i.e. Expression of interest and payment receipts in respect of the respective plots/flat which have been placed on record by the non- applicants/complainants to prove their case, have actually been issued by the applicants/opposite parties only. Furthermore, the Letter of Intent dated 03.05.2013, Annexure C-6 has been issued by the Punjab Urban Planning and Development Authority, in favour of the applicants/opposite parties, which has not been disputed by them. It is further significant to mention here that the applicants/opposite parties did not dispute issuance of the said expression of interest and payment receipts in favour of the non- applicants/complainants. Thus, it has not been clarified by the applicants/opposite parties, as to why they need to prove the authenticity of the documents which have been issued by them only, especially when issuance thereof has never been disputed by them in favour of the non-applicants/complainants. Not even a single averment has been made by the applicants/opposite parties that the non-applicants/complainants have placed on record forged and fabricated documents. Once, the parties have placed on record the documents supported by the affidavits by way of evidence and the said documents have gone unchallenged by way of placing on record any contrary evidence, as such, we are of the considered view that there is no need to cross examine the complainants or any witnesses, to prove the authenticity of documents placed on record by the non-applicants/complainants. However, if the applicants/opposite parties were so desirous, they could have submitted a questionnaire, in the shape of an affidavit to the non-applicants/complainants or their witness(es), during pendency of the consumer complaints but nothing to this effect has been done by them. Our this view is supported by the principle of law laid down by the Hon'ble Supreme Court of India in Dr. J. J. Merchant And Others vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (para 19) Not only as above, recently a similar question fell for determination before the Hon'ble National Commission in Dr. Swaroop Gopal Vs. Goli Venkateshwar Rao & 4 Ors., First Appeal No. 1741 Of 2018, decided on 04 Jan 2019, wherein it was held as under:-
". …………... The Hon'ble Court however has warned the Commission to exercise these powers in appropriate cases and not routinely. The discretion to exercise such powers by the Commissions certainly depends on the facts and circumstances of that particular case. Learned Counsel has failed to point out that in J.J. Merchant's case (supra), the Hon'ble Supreme Court has restricted the powers of the Commission only to examination in chief or examination of a witness through interrogatories. In the present case, the Complainant has sought cross examination of the party, in order to bring on record the truth. This cross-examination can be done either on oath before the Commission or through Local Commissioner so appointed by the Commission. I find no illegality or infirmity in the impugned order and there is no merit in the Appeal. The Appeal is dismissed with costs of Rs.10,000/-, which shall be deposited by the Appellant in Consumer Legal Aid Account
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within eight weeks from today……." Even otherwise, though none of the documents placed on record, which have been issued by the applicants/opposite parties only, stood challenged by them, on the ground that the same are fabricated and forged one, even then, still if there was any doubt in their mind in that regard, they should have submitted a questionnaire, in the shape of an affidavit to the non-applicants/complainants or their witness(es), during pendency of the consumer complaints seeking clarification on the same but they failed to do so. It appears that the applicants/opposite parties want to delay the proceedings before this Commission, inordinately. As such, plea taken by them in this regard stands rejected.
The next question that falls for consideration is, as to whether, the non-applicants/complainants can be allowed to place on record fresh power of attorneys at belated stage or not. It may be stated here that it is settled law that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. The Consumer Protection Act, is a beneficial legislation, to provide speedy, inexpensive and hassle free redressal to the grievance of the consumers. In this view of the matter, it is held that if the non-applicants/complainants have placed on record the fresh power of attorneys, at later stage, which merely satisfies the objection raised by the applicants/opposite parties, it is sufficient to continue with the consumer complaints, as they have rectified the technical error. Even otherwise, it has not been clarified by the applicants/opposite parties, as to what prejudice has been caused to them, if the non-applicants/complainants have placed on record the fresh power of attorneys, which infact has satisfied their objection. In no way, placing on record fresh power of attorneys could be fatal, to affect the merits of the case. It is settled law that if a complaint is not properly signed or verified or presented, the Court has always got the discretion to allow the rectification of such defect at a later stage even though the period of limitation may have already expired and that if that discretion is exercised by the Court, the curing of the defect would be effective as from the date of the institution of the suit itself, and it would not be open to the defendant to plead the bar of limitation or otherwise. In Inderjit Singh Vs. Raghbir Singh Kalsi and another, CR No.7175 of 2014, the Hon'ble Punjab and Haryana High Court also allowed the petitioner to place on record fresh power of attorney during the pendency of the case, because the earlier one at the time of filing the revision petition was not embossed. It is not that this Commission is going to pass any order in favour of power of attorney of the non- applicants/complainants, thereby causing any loss to the applicants/opposite parties. As such, objection taken in this regard stands rejected.
6.
Counsel for the applicants/opposite parties has vehemently contended that in the power of attorney dated 07.06.2019, it has been mentioned by the non-applicant/complainant Paramjit Sarao that he is personally present in India as on 07.06.2019. If indeed he was in India, then he cannot execute the power of attorney in USA. Similar contention has been raised with regard to power of attorney dated 10.06.2019 of Ms.Harjot Grewal, complainant no.2.
7.
On the other hand, counsel for the non-applicant/complainant Paramjit Sarao refuted this argument, while stating that the complainant-Paramjit Sarao was infact not in India and rather he was in USA at the relevant time. It is a clerical mistake in the power of attorney and if the entire document is read as a whole, it will be abundantly clear that he was in USA. We have considered this contention, while going through the contents of power of attorney dated 07.06.2019, relevant part whereof is reproduced hereunder:-
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"1. WHEREAS I, Sh. Paramjit Sarao, son of Sh. Govinder Sarao, Aged years, Resident of 5772 N Rochester rd., Oakland TWP, Ml, 40306, USA the absolute Owner/ Allotee/ Applicant of property for which the consideration has been paid to M/s Manohar Infrastructure & Constructions Pvt. Ltd. in the project named "Palm Springs" and hereinafter referred to as the" SCHEDULE PROPERTY"
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II. WHEREAS the executant is presently in India and will be unable to visit in India personally to manage litigation against the M/s Manohar Infrastructure & Constructions Pvt. Ltd. and its Managing Director, Directors, Managers or any other person who is involved in the handling of the affairs of the Company or on behalf of the company and against any other Government authority or person, I will be traveling & residing in United States of America and therefore deem it necessary to appoint Attorney to carry out certain acts in connection with the Litigation, Management and disposal of the Schedule Property.
III NOW KNOW ALL MEN BY THESE PRESENTS THAT, l, Sh. Paramjit Sarao, above named do whereby nominate constitute and appoint Sh. Ramesh Lal Atri, Son of Late Sh. S.R.Atri, Aged 54 years, Resident of Flat No. 188, Housefed Complex Cat 1, Sector 79, Mohali, SAS Nagar-140308, Punjab, who is my friend, above named as my true and lawful Attorney on my behalf and on my behalf to do, all or any of the following acts, deeds and things, in regard to the Pending Litigation and future Cases to be filed against the M/s Manohar Infrastructure & Constructions Pvt. Ltd., and the Managing Director, Directors, Managers of the M/s Manohar Infrastructure & Constructions Pvt. Ltd…"
It is well settled law that for construction of a document, the entire document is required to be studied as a whole. In para no.2 of the power of attorney, it appears that, inadvertently, it has been mentioned by non-applicant/complainant Paramjit Sarao that presently he is in India, yet, in the same line it has been mentioned by him that he is unable to visit India personally to manage litigation against M/s Manohar Infrastructure & Constructions Pvt. Ltd. Thus, it seems to be a clerical mistake and will not affect the construction of the document and intention of the principal-Paramjit Sarao. Infact, the principal i.e. the non-applicant/complainant-Paramjit Sarao has ratified and confirmed the said power of attorney through Sh.Ramesh Lal Atri. The said power of attorney has been notarised by the Michigan Notary Public, Macomb, Michigan and has also been certified by The Secretary of the State, Michigan. Similar is the case of Ms.Harjot Grewal, complainant no.2. In power of attorney dated 10.06.2019 also, it appears that, inadvertently, it has been mentioned by her, that presently she is in India, yet, in the same line it has been mentioned by her that she is unable to visit India personally to manage litigation against M/s Manohar Infrastructure & Constructions Pvt. Ltd. Thus, it seems to be a clerical mistake and will not affect the construction of the documents and intention of the principal- Harjot Grewal. Infact, the principal i.e. the non-applicant/complainant-Harjot Grewal has ratified and confirmed the said power of attorney through Sh.Ramesh Lal Atri. The said power of attorney has been notarised by the Ministry of Government and Consumer Services and embossed by the Consulate General of India, Toronota on 12.06.2019. As such, contentions raised by Counsel for the applicants/opposite parties in this regard, being devoid of merit stands rejected.
9.
As far as reliance placed by Counsel for the applicants/opposite parties on Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. Civil Appeal No.6790 of 2003, decided on 06.12.2004 is concerned, it may be stated here that in that case it was held that power of attorney cannot depose in relation to a case where it is to be proved that whether a person was a co-sharer in the property purchased and had the source of income to contribute to its purchase price are matter of personal knowledge of such person. However, in the present case, there is no dispute with regard to making payment by the non- applicants/complainants towards price of their respective plots and flat. Even the documents issued by the company which have been placed on record have also not been proved to be fabricated or forged. As such, reliance placed by Counsel for the applicants/opposite parties on Janki Vashdeo Bhojwani case (supra) is misplaced.
10.
Man Kaur (dead) By Lrs. Vs. Hartar Singh Sangha, Civil Appeal No.147-148 of 2001 decided 11.
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on 05.10.2010, speaks about the position as to who should give evidence in regard to personal knowledge, as per Civil Procedure Code Order 3 Rules 1 and 2. It may be stated here that the provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties. It was also so said by the Hon'ble Supreme Court of India, in the case of V. Kishan Rao Vs, Nikhil Super Speciality Hospital and another, Civil Appeal No.2641 of 2010, (Arising out of SLP(C) No.15084/2009), decided on March 8, 2010. Relevant contents of the said order reads thus:-
"…..The Forum overruled the objection, and in our view rightly, that complaints before consumer are tried summarily and Evidence Act in terms does not apply. This Court held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others reported in (2009)
9 SCC 221 that provisions of Evidence Act are not applicable and the Fora under the Act are to follow principles of natural justice….."
As such, reliance placed by Counsel for the applicants/opposite parties on Man Kaur (dead) case (supra) is misplaced.
In Shiv Kumar Aggarwal and anr. Vs. Ansal Housing and Construction Ltd. and anr., FA No.11 of 1999, decided on 29.05.2006 by the Hon'ble National Commission, refund was sought by the complainant on the ground that the builder has changed the area of the plot and its price. It was under those circumstances that the State Commission dismissed the complaint holding that it was triable by the Civil Court to prove such fact of change of area of the plot and its price. It was under those circumstances held by the Hon'ble National Commission that the State Commission should not relegate the case to civil court and if considers appropriate it can cross-examine orally or through interrogatories. Thus, the facts of the present case being entirely different to those of Shiv Kumar Aggarwal and anr.s case (supra) did not give any support to the applicants/opposite parties.
12.
In Oriental Insurance Co. Ltd. and another Vs. Prem Parkash Mehra, FA No.464 of 1994 decided on 18.08.1998 by the Hon'ble National Commission, insured gold ornaments contained in the suitcase were stolen during railway journey and the compensation awarded by the State Commission was reduced while holding that the witness produced could not be cross examined by insurance company. Thus, the facts of this case are of no help to the applicants/opposite parties.
13.
In Development Credit Bank Ltd. Vs. CCI Chambers Co-op. Housing Society Ltd., Civil Appeal No.2667 of 2005, decided on 09.05.2005 (SC), the complainant gave his consent for conducting cross-examination of the deponents who filed affidavit on his behalf. It was under those circumstances held that the deponents will be subjected to full-fledged cross-examination before the Commission and that the Commission would be at liberty to form an opinion afresh, whether it would like to conduct the trial before itself or refer the parties to civil court.
14.
Raj Kumar Vij Vs. Hem Raj Singla, CR No.6748 of 2001, decided on 25.07.2007 by the Hon'ble Punjab and Haryana High Court relates to a dispute with regard to eviction of tenant on the ground of her personal requirement. It was under those circumstances held that it was not open to the court to accept the plea of the landlady merely on the statement of her attorney and as such no help therefrom can be availed by the applicants/opposite parties.
15.
In Jatinder Singh and anr. Vs. Mehar Singh and others, Civil Appeal No.5781 of 2008, decided on 19.09.2008, it was held by the Hon'ble Supreme Court of India that it is the duty of the court to deal with the application on merits, for acceptance of additional evidence. However, the applicants/opposite parties have failed to justify, as to how this judgment is relevant to the present case, as there has been no denial/refusal on the part of this Commission to deal with any of the applications filed by them, on merits.
16.
The applicants/opposite parties have failed to justify, as to how the facts of Krishan Kumar Sardana Vs. Sita Ram Adlakha, Civil Revision No.728 of 2009 decided by the Hon'ble Punjab and
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Haryana High Court are applicable to the present consumer complaints. Now we will deal with the objection taken by Counsel for the applicants/opposite parties in these applications that because the complainants have purchased three properties from the opposite parties as such the same being commercial transaction, they did not fall within the definition of consumer and they want to cross-examine them on the said issue. It may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the applicants/opposite parties to establish that the non-applicants/ complainants in these complaints have purchased the plots and flat in question to indulge in 'purchase and sale of plots/flats' as was held by the Hon'ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that non-applicants/complainants are consumers as defined under the Act. 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. The mere fact that the complainants have purchased three units, in the project of the opposite parties, for the future of their children or that the complainants in CC No.407 of 2018 being friends have purchased plot therein jointly, is not a ground to shove them out of definition of consumer. In Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-
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"….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 acquisition of the house is for a commercial purpose….."
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Furthermore, the mere fact that the non-applicants/complainants are NRI and residing in USA/Canada, is no ground to snub them out of the purview of 'consumer'. No law debars NRI and any other person sitting abroad, with roots in India, to purchase a residential property in India for his/her personal use. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. Each NRI wants a house in India. The non-applicants/complainants are independent persons and can purchase any house in India, in their own name jointly or otherwise. Similar view was expressed by the Hon'ble National Commission in Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016.
In Sai Everest Developers & Anr. V. Harbans Singh Kohli & Ors., First Appeals No. 530 of 2015, 531 of 2015, 532 of 2015 and 533 of 2015 (decided by the Hon'ble National Commission), four flats were purchased by a consumer with a view to gift the same, to her four daughters. As such, a similar question, as to whether, purchase of four flats by the consumer for his/her daughters amounts to commercial transaction or not. The Hon'ble National Commission in the said appeals opined 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". Relevant part of the said order reads thus:-
"Thus, the short question for consideration at this stage is as to whether the State
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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 Akshay Sood Vs. M/S. Pal Infrastructure & Developers Pvt Ltd. & Anr., First Appeal No. 237 Of 2015, decided on 02 Jan 2017, the consumer had initially booked three flats, later on changed to two flats, all in his name. The State Commission concerned came to the conclusion that if a 'consumer' purchases more than one residential unit, he knocks himself out of the ambit of the term 'consumer'. However, the said plea was rejected by the Hon'ble National Commission by holding 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, mere purchase of more than one flat would not per se be sufficient to hold that the purchase was for commercial purposes. Relevant part of the said order reads thus:-
"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 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
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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, 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."
In Dr. Poonam Aggarwal V. M/S. Gujral Associates & Anr. First Appeal No. 101 Of 2015, decidedo 06.03.2017, under similar circumstances, the Hon'ble National Commission held as under:-
"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." In Dlf Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316, the Hon'ble National Commission while relying upon the principle of law laid down by the Hon'ble Supreme Court of India, held that the mere fact that other family members of the complainant had made applications for allotment of plots in the same project, would not amount to commercial transaction. Relevant part of the said order reads thus:-
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"After giving due consideration to the material on record and the arguments led before us, the preliminary issue that merits our consideration is whether the complainant falls within the definition of "consumer" or not. The OP DLF have raised the contention that five other family members of the complainant had made applications for allotment of plots in the same project and the said bookings were made for commercial purposes; hence, the complainant did not fall under the definition of 'consumer' under section 2(1)(d) of the Consumer Protection Act, 1986. This issue has been examined by this Commission exhaustively in the case of "Kavita Ahuja vs. Shipra Estate Limited & Jai Krishna Estate Developers Pvt. Ltd." [CC/137/2010 decided on 12.02.2015], and the following view was taken:-
" 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." From the facts of the present case, it is clear that the complainant is not 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 properties. It is held, therefore, that the booking of the plot was not for a
commercial purpose and hence the complainant does fall within the definition of 'consumer'
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as defined in the Consumer Protection Act, 1986." In this view of the matter, plea taken by the applicants/opposite parties to the effect that they wanted to cross examine the complainants, in this regard stands rejected.
In our considered opinion, the present applications seem to have been filed only to delay the proceedings of main consumer complaints before this Commission, inordinately. As such, filing of the said applications, at belated stage, have been filed without any object. Had these applications been allowed by this Commission, even then, no fruitful purpose would have been served except to cause harassment and hardship to the non-applicants/complainants or their witness(es) if any.
19.
As such, after going through the material on record, we are of the considered opinion that these applications deserve dismissal and are accordingly dismissed with no order as to cost.
20.
The parties are directed to come present before this Commission on 06.07.2021 for final arguments in the main consumer complaints.
21.
Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case files.
22.
The files be consigned to Record Room, after completion.23. Pronounced.
05.05.2021
Sd/-
[RAJ SHEKHAR ATTRI]
PRESIDENT
Sd/-
(PADMA PANDEY)
MEMBER
Sd/-
(RAJESH K. ARYA)
MEMBER
Rg.
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