Dr. Dhananjaya Y. Chandrachud, J.
Admit.
The appellant filed a consumer complaint before the
National Consumer Disputes Redressal Commission (“NCDRC”). The
appellant alleged that there was a deficiency of service on the
part of the developers in not executing agreements in respect
of four flats which were booked by the appellant in a project
called “Orchid Petals” located at Sector 49, Gurgaon. The
following reliefs were sought in the complaint:
this Hon’ble Commission may kindly be pleased to
a. Execute the buyers agreement/sale deed with
the complainant, qua flat Nos. 1103, 1203, 903
in tower no. 15 and flat no. 1402 tower no. 21
in Orchid Petals Condominium Complex 1 sector
49, Gurgaon, Haryana.
b. Pay Rs five lakhs as compensation for the
harassment, agony and pain suffered by the
complainant.
c. Pay cost of the proceedings; and/or
d. Any other / further compensation as
complainant may be entitled may also be
granted.
The respondents raised a preliminary objection to the
maintainability of the complaint in their counter affidavit on
the ground that since the appellant had booked four flats, the
purpose was resale and commercial gain. Hence, it was pleaded
that the appellant is not a “consumer” within the meaning of
Section 2(1)(d) of the Consumer Protection Act, 1986 (“Act”).
The averments in that regard in the objection raised by the
second respondent are as follows:-
“1. …The complainant had applied for these flats
with a clear intention of resale. The purpose
by applying for four flats i.e. on such a large
scale by the complainant was only resale
for commercial gain. The complainant, as is
apparent from his complaint, intended to make
short term profits by selling the four flats
which were tentatively allotted to his; subject
to certain conditions. The complainant had no
intention to use the four flats as a
residential / dwelling unit for himself or his
family……”
The appellant contested the above objections and stated
that the flats were not intended for commercial resale
but for the members of his family. The appellant has made the
following averments in response:
“1. It is admitted the complainant applied for
the allotment of four flats in the ‘Orchid Petals’
housing project, but it is denied that the
complainant applied for the flats for commercial
resale and to earn commercial gains there-from.
The complainant wanted to live near his family
members and therefore, he applied for the flats.
It is surprising he applied for the flats. It is
surprising that how and in what manner the defendant
no. 2 suo motto came to the conclusion of the
intention of the complainant of not using the flats
as residential house for himself or his family mem-
bers and also about his financial capacity to pay
the installments of the flats. The complainant
belongs to prestigious alumini of India Institute of
Management and is a successful entrepreneur having
an Income of Rs. 2.18 Crore as per the ITR of As-
sessment Year 2005-2006, Rs. 1.52 Crore as per the
ITR of Assessment Year 2004-2005, therefore the op-
posite Parties allegation that the complainant has
no capacity to pay is incorrect.
The NCDRC rejected the consumer complaint and upheld the
objection. The grounds which weighed with the NCDRC emerge from
the following extract from its decision:
“7. ... The fact that the complainant had booked
four flats makes it clear that the aforesaid book-
ing obviously was not for the purpose of residence
and the hidden purpose behind aforesaid four book-
ings was to make profits on re-sale of the proper-
ties. Our aforesaid conclusion is strengthened
from the fact that the complainant admittedly
booked four flats knowing fully well that the oppo-
site parties did not have necessary sanctions and
approvals for the project at the relevant time. The
plea of the complainant that he had booked those
flats for himself and his family members is not ac-
ceptable for the reason that in the complaint the
complainant has not clarified who were the family
members for whose residence he had booked those
flats. The complainant has placed on record the
terms and conditions for registration and allotment
of flats in the aforesaid project. On perusal of
the terms and conditions signed by the complainant
for respective flats it is clear that all these
terms and conditions vis a vis the booked flats are
signed by the complainant at Gurgaon on 4th August
2004 as sole/1st applicant. Though there is a
column for signature of second applicant, it has
not been signed by anyone. Had the plea of the com-
plainant that he had booked those flats for the
residence of his family members been correct, he
would have obtained the signatures of the respec-
tive family members as second applicant for whom
the respective flats were booked. Thus, we have no
hesitation in concluding that the flats in question
have been booked by the complainant with the inten-
tion to make commercial gains by re-selling the
flats on completion at higher rate.”
Learned counsel appearing on behalf of the appellant
submits that the fact that the appellant had booked four flats
cannot be a reason enough to hold that he is not a “consumer”
within the meaning of Section 2(1)(d). Learned counsel urged
that the decision of the NCDRC to hold that the appellant is
not a consumer is based on surmise without any evidence.
On the other hand, learned counsel appearing on behalf of
the second respondent submitted that the appellant did not
disclose before the NCDRC the names of the members of his
family for whose benefit the flats were being purchased, and it
was only during the pendency of the present proceedings that in
the form of an additional affidavit, the lacuna in the pleading
is sought to be covered up. Learned counsel supported the
reasoning of the NCDRC that a purchaser of four flats cannot be
recorded as a “consumer”.
We find that the NCDRC has proceeded to decide the
objections to the maintainability of the complaint on an ipse
dixit. The fact that an individual has booked four flats may
not by itself be a circumstance on the basis of which a
conclusive presumption can be drawn that he or she is not a
consumer in the absence of evidence regarding the purpose of
the purchase. Ultimately, it is a matter to be decided on the
basis of evidence whether, as the appellant pleads, the flats
were booked not for the purposes of resale, but for the members
of his family. The appellant has seriously contested the claim
of the developer that the flats were booked by way of an
investment, for commercial resale.
At this stage before the NCDRC, there was no material on
the basis of which a conclusion could have been drawn one
way or the other. The NCDRC has sought to buttress its finding
by recording that the appellant had booked the flats at a
stage when sanction and approval for the project had not
been obtained. This again may not strictly be a relevant
consideration since a prospective buyer may invest in a
building project bonafide, placing trust in the reputation of
the builder to deliver possession. The fact that the appellant
did not specifically mention the names of the members of his
family may be one factor which may be placed in the balance in
the ultimate decision. However, a finding, whether the
appellant is nor is not a consumer should have been arrived at
after the pleadings were complete and the parties had an
opportunity to adduce evidence in support of their respective
cases. Absent such an exercise, the decision of the NCDRC rests
purely on assumption or surmise.
For the above reasons, we allow the appeal and set aside
the impugned order of the NCDRC dated 5 August 2013. Consumer
Complaint No. 85 of 2006 is accordingly, restored to the file
of the NCDRC. We clarify that we have not expressed any
opinion on the merits of the rival claims and contentions of
the parties including on the question whether or not the
appellant is a consumer within the meaning of Section 2(1)(d)
of the Act. The NCDRC shall decide that issue together with
the complaint after evidence is adduced by the parties.
At this stage, the learned counsel appearing on behalf of
the first respondent has stated that the first respondent was
proceeded against ex-parte. Learned counsel has requested
the Court to permit the first respondent to file its written
statement and to contest the proceedings. This request has
not fairly been opposed on behalf of the appellant. We
accordingly, permit the first respondent to file a written
statement within a period of four weeks from today and to
contest the proceedings.
The appeal is, accordingly, disposed of. No order as to
costs.
Pending application(s), if any, shall also stand disposed
of.
Civil Appeal No(s). 10611/2013
SANJAY BANSAL Appellant(s)
VERSUS
M/S VIPUL LTD. (FORMERLY KNOWN AS VIPUL INFRASTRUCTURE DEVELOPERS LTD.) & ANR. Respondent(s)
Date : 12-04-2019 This appeal was called on for hearing today.
CORAM :
For Appellant(s)
Mr. Shrish Kumar Misra, AOR
Mr. Kumar Manish, Adv.
Mr. Ajay Kumar, Adv.
Ms. Deepika Mishra, Adv.
For Respondent(s)
Sarojanand Jha, Adv.
Kirat Randhawa, Adv.
Purva Kohli, Adv.
Mr. Gautam Talukdar, AOR
Mr. Akshay Girish Ringe, Adv.
Mr. Siddharth Joshi, Adv.
Mr. Gagan Gupta, AOR
UPON hearing the counsel the Court made the following
O R D E R
Admit.
The appeal is disposed of in terms of the signed order.
Pending application(s), if any, shall stand disposed of.
(Signed reportable judgment is placed on the file)