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Akshay Sood vs M/S. Pal Infrastructure & ...

on 2 January, 2017

National Consumer Disputes Redressal


Akshay Sood vs M/S. Pal Infrastructure & ... on 2 January, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.

BEFORE: HON'BLE MR. JUSTICE D.K. JAIN,PRESIDENT HON'BLE MRS. M.


SHREESHA,MEMBER For the Appellant : Mr. S.S. Ahluwalia, Advocate Mr. Jatin Teotia, Advocate
For the Respondent : Mr. Sudhir K. Makkar, Sr. Advocate Ms. Saumya Gupta, Advocate Mr. Manav
Chandra, Director of R-1, in person Dated : 02 Jan 2017 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 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.

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Akshay Sood vs M/S. Pal Infrastructure & ... on 2 January, 2017

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.

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.

......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER

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