CC/102/2015

For the Complainant       : Mr. Dinkar Singh, Advocate

                                            : Mr. Rohit Singh, Advocate

                                            : Mr. Gagan Garg, Advocate

For the Opposite Party   : Mr. Aditya Narain,  Advocate

                                          : Mr. Mishra Raj Shekhar, Advocate

                                          : Mr. Siddharth Dey, Advocate

CC/1075/2016

For the Complainant       : Mr. Dinkar Singh, Advocate

                                          :  Mr. Gagan Garg, Advocate

                                          :  Mr. Rohit Singh, Advocate

For the Opposite Party   : Mr. Krishnan Venugopal, Sr. Advocate

                                          : Mr. Sumit Sharma, Advocate

                                          : Mr. Daksh Pandit, Advocate

                                           : Mr. Tenzen Negi, Advocate and

                                          : Mr. Paras Chaudhary, Advocate 

1.      Heard Mr. Dinkar Singh, Advocate, for the complainant in the complaints and Mr. Aditya Narain, Advocate in CC/102/2015 and Mr. Krishnan Venugopal, Sr. Advocate, assisted by Mr. Sumit Sharma, Advocate, in CC/1075 of 2016, for the opposite party.

2.      Mahesh Malik has filed CC/102/2015 for directing EMAAR MGF LAND LIMITED (i) to handover possession of developed plot bearing No. “Coral-53” (area 500 Sq. yard, corner plot, one side 60 meter wide road and other side 24 meter wide road), in the project Emerald Hills, Villa Plots, Sector-65, Urbana Estate, Gurgaon as per specification of the agreement, within 45 days from the notice to the opposite party, on payment of balance consideration of Rs.1983290/-, (ii) to pay interest @24% per annum from 22.12.2012 till the date of actual delivery of possession, or (iii) to refund entire amount of Rs.39854210/- to the complainant, in case, the opposite party is not in position to hand over possession within 45 days and pay compensatory interest @24% per annum, on the aforesaid amount from the date of each deposit till actual payment, (iv) to pay compensation equivalent to 10% of the aforesaid amount, for resorting unfair trade practice and (v) any other relief which may be deemed fit and proper, in the facts and circumstances of the case. This plot was booked on 10.12.2010. 

3.      The opposite party filed its written reply in the complaint on 08.04.2015 and contested the complaint. The opposite party filed IA/10981/2019, for leave to serve interrogatories upon the complainant and sought direction to the complainant to reply it. Along with IA/10981/2019, two interrogatories i.e. (i) What are the properties owned by the complainant either individually or jointly in India? To give specific details with the dates of its purchase. (ii) Had the complainant purchased or sold any property in last 10 years?  To give specific details with the dates of its purchase and sale. This Commission, vide order dated 15.07.2019, directed the complainant to file an affidavit, disclosing therein all the properties owned or booked by him on or before the date on which the plot in question was booked and particulars of the properties disposed of by him.

4.      In compliance of order dated 15.07.2019, the complainant filed his Affidavit on 30.01.2020 and Revised Affidavit on 01.09.2021, disclosing following properties, within last 10 years:-

(a) The complainant purchased Shop Nos.-3, 5 and 7, in Hi Line Complex, Park Lane, CTC, Banjara Hills Road No.12, Hyderabad, which were sold in the year 2008.

(b) The complainant purchased residential house No.3-6-363/A, near Liberty building, Basheer Bagh, Hyderabad.

(c)  The complainant and his wife purchased Plot no.51, Kamlapuri Colony, Krishna Nagar, Jubillee Hills, Hyderabad vide sale deed dated 20.08.2004.

(d)  The complainant purchased agricultural land at village Chevella, Madeenaguda, Hyderabad, in the year 2006.

(e)  The complainant purchased Shop No.G-20, in City Centre Complex, Banjara Hills Hyderabad, in 2006 and sold in 2010.

(f)   The complainant booked Villa No. B-57, in the project Kingswood Oriental, Noida, promoted by Jaiprakash Associates Limited, in July, 2010, for which, CC/1075/2016 has been filed.

(g)  The complainant booked seven apartments (numbers A/3702, B/704, C-1104, C-1504, C-2603, D/11/701, D/11/702 in IREO VICTORY VALLEY, on 07.07.2010, for the members of his joint family i.e. (i) the parents, (ii) Mr. Prem Chander Malik (father’s brother), his wife, two sons and two daughters, (iii) his younger brother, his wife and two sons and (iv) his youngest brother, his wife, son and daughter. Out of which six units were cancelled in December, 2010. The company itself arranged a buyer namely Mr. Vivek Arora and Mrs. Meenakshi Arora, who purchased Apartment No. B/704.

(h) The complainant booked Floor No. C/1242, in Ansal Esencia Floor, Sector 67, Gurgaon, on 20.07.2010, which was later on cancelled.

5.      In Reply to IA/2111/2021, the complainant has stated that ‘Malik Estate’ is a Partnership Firm of the complainant and his brothers. This Firm owns one immovable property in Hyderabad, purchased in 1996 with joint fund and presently let out on rent.

6.      Mahesh Malik has filed CC/1075/2016 for directing M/s. Jay Prakash Associates Pvt. Ltd. and M/s. Japyee Infratech Ltd. (i) to handover possession of Villa No. B-57 (super area 4700 Sq.ft.), in the project Kingswood Oriental, Jaypee Green, Sector-128, Noida, (ii) to pay interest @24% per annum from 01.04.2014 till the date of actual delivery of possession, (iii) to pay interest to ICICI Bank, which has been paid by the complainant, on the home loan taken from it (iv) to pay compensation of Rs.10/- lacs for mental agony and physical harassment (v) to pay Rs.2.5/- lacs as the cost of the litigation and (vi) any other relief which may be deemed fit and proper, in the facts and circumstances of the case. This villa was booked on 24.07.2010.

7.      M/s. Jay Prakash Associates Pvt. Ltd. and another filed its written reply on 30.09.2016 and contested the complaint. The opposite parties stated that the complainant entered into an agreement to sell dated 12.02.2011, for selling Villa No. B-57, aforementioned to one Rajesh Bhardwaj and took earnest money of Rs.11/- lacs.  Rajesh Bhardwaj filed Civil Suit No.306 of 2011, in the Court of Civil Judge, Noida, Gautum Budh Nagar for permanent injunction against the complainant, on the basis of agreement dated 12.02.2011 and alleged that the complainant was negotiating to sell the villa to a third person namely Amit Gupta, on higher rate. The complainant compromised this suit with Rajesh Bhardwaj by paying Rs.1899999/- on 15.10.2014. The said suit was dismissed as compromised on 18.11.2014. The complainant in paragraph-5 of Rejoinder Reply has not denied the aforesaid facts and stated that in order to buy peace, the complainant entered into compromise with Rajesh Bhardwaj. This compromise shows that the complainant was interested in the aforesaid villa for his own purpose and retained it. M/s. Jay Prakash Associates Pvt. Ltd. and another filed IA/10790/2017, for dismissing the complaint as not maintainable, as the complaint was not a ‘consumer’.

8.      Mahesh Malik has filed CC/2242/2016 for directing DLF Home Developers (i) to refund the entire amount of Rs.36041889/- along with interest @24% p.a. from the date of each deposit till its realization; (ii) to pay Rs.200000/- towards litigation cost; (iii) to pay compensation for restoring to unfair trade practice by awarding interest @10% p.a. on the amount deposited by the complainant and (iv) any other relief which may be deemed fit and proper, in the facts and circumstances of the case.  Subject matter of dispute in this complaint is Plot No.WA-36 (area 450 sq.mt.) in project ALAMEDA at Sector 73, Gurgaon, Haryana.  This plot was booked on 11.12.2010 by the complainant.

9.      The opposite parties raised a preliminary objection that the complainant is indulged in buying and selling the immovable property and is not a ‘consumer’ within the meaning of Section-2(1) (d) (ii) of Consumer Protection Act, 1986 (hereinafter referred to as the Act) as such the complaint is not maintainable. The complainant and his family are residing in Hyderabad, where according to the complainant, he was doing consultancy business. There is neither any need nor purpose to shift entire family to Delhi NCR. It is alleged that the complainant booked 7 apartments in IREO VICTORY VALLEY, on 07.07.2010, for residence of his family but out of which six units were got cancelled in December, 2010 and Apartment No. B/704 was sold to Mr. Vivek Arora and Mrs. Meenakshi Arora, in order to get better return. The complainant entered into an agreement to sell dated 12.02.2011 with one Rajesh Bhardwaj and took earnest money of Rs.11/- lacs, for Villa No. B-57. From plaint allegations in Civil Suit No.306 of 2011, it is proved that the complainant was again negotiating to resell this villa to a third person. All of a sudden, booking large number of flats, plots and villa in NCR and selling them, proves that the complainant is a trader and not a consumer. 

10.    The counsel for the opposite party has relied upon the case laws of this Commission in Jag Mohan Chhabra Vs. DLF Universal Ltd. 2007 (2) C.P.C. 733 [affirmed by Supreme Court in Civil Appeal No.6030-6031 of 2008 Jag Mohan Chhabra Vs. DLF Universal Ltd., (decided on 29.09.2008)], Chilkuri Adarsh Vs. M/s. Ess Ess Vee Constructions, 2012 SCC OnLine NCDRC 301, Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India) Ltd., 2012 SCC OnLine NCDRC 311, Ms. Saavi Gupta Vs. M/s. Omaze Azorim Developers Pvt. Ltd., 2012 SCC OnLine NCDRC 670, Ved Kumari Vs. M/s. Omaxe Buildhome Pvt. Ltd., 2014 SCC OnLine NCDRC 120, Smt. Madhu Saigal Vs. M/s. Omaxe Buildhome Pvt. Ltd., 2014 SCC OnLine NCDRC 134, Sunil Gupta Vs. Today Homes & Infrastructure Pvt. Ltd., 2014 SCC OnLine NCDRC 269, Indrajit Dutta Vs. Samriddhi Developers Pvt. Ltd., 2015 SCC OnLine NCDRC 961, Dr. Pramod Kumar Arora Vs. DLF Homes Panchkula Pvt. Ltd., 2015 SCC OnLine NCDRC 3098, M/s. TDI Infrastructure Pvt. Ltd. Vs. Rajesh Jain, 2015 SCC OnLine NCDRC 4656, Manohar Damecha Vs. Lavasa Corporation Ltd., 2016 SCC OnLine NCDRC 764 and CC/567/2015 Rohit Kapoor Vs. BPTP Ltd. (decided on 07.12.2017). In these cases, more than one unit of residential flat/villa/plot were purchased, this Commission found that the purchases were for commercial purpose and the complainant was not a ‘consumer’.

11.    The counsel for the complainant submitted that the issue as to whether the complainant is ‘consumer’ or not, has to be decided qua the property involved in the complaint. It is now well settled that a person involved in commercial activities can also buy ‘goods’ or avail ‘service’ for his personal use. If a person, doing commercial activities purchases ‘goods’ or avails ‘service’ for his personal use, then he will  be a ‘consumer’ as defined under the Act. The plot/villa subject matter of these complaints were booked for own purpose. Although more than 10 years have expired after booking of the plot/villa but the complainant is bonafide litigating for obtaining its possession, which fully proves that these properties were booked for personal use. The complainant took loan for these properties and continuously paying instalments and heavy interest on it. Malik Estate, in which, the complainant is a partner is not involved in buying and selling the properties. Although, the complaint booked flats for his family members but the complainant came to know about the financial scam of that builder IREO as such got his booking cancelled. So far as the agreement dated 12.02.2011, is concerned, the complainant was in need of money for treatment of his son as such took money from Rajesh Bhardwaj. Later on his money along with interest was returned and the suit was compromised. He relied upon judgment of this Commission in Kavita Ahuja Vs. Shipra Estate Ltd., 2015 SCC OnLine NCDRC 930, in which it has been held that the complainant had purchased of three residential flat for herself and her family members, is not a commercial purpose. In FA/1287/2014, Rajesh Malhotra Vs. Acron Developers (decided on 05.11.2015), in which, the complainant had booked two villas, was held as consumer. FA/783/2015 Col. Kuldeep Singh Vs. EMAAR MGF LTD. (decided on 11.01.2018) in which, the complainant owned one house and booked one flat for the purposes of letting was held as not a commercial purpose. He submitted that Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, has held that the expression “commercial purpose” is a question of fact and has to be decided in the facts of each case.

12.    I have considered the arguments of the counsel for the parties and examined the record. From the facts stated above, it is proved that the complainant jointly owed residential house No. 1-2-8/3/1, Gagan Mahal Road, Near Sunderam Hospital, Hyderabad, where he and his family, his parents, the uncle and his family, two brothers and their families are residing. As a partner in Malik Estate, he owned a commercial building in Hyderabad, which was let out to the tenants. The complainant and his wife purchased Plot no.51, Kamlapuri Colony, Krishna Nagar, Jubillee Hills, Hyderabad vide sale deed dated 20.08.2004. The complainant purchased agricultural land at village Chevella, Madeenaguda, Hyderabad, in the year 2006 and residential house No.3-6-363/A, near Liberty building, Basheer Bagh, Hyderabad. The complainant purchased Shop Nos.-3, 5 and 7, in Hi Line Complex, Park Lane, CTC, Banjara Hills Road No.12, Hyderabad, which were sold in the year 2008. The complainant purchased Shop No.G-20, in City Centre Complex, Banjara Hills Hyderabad, in 2006 and sold in 2010. In National Capital Region, the complainant booked seven apartments (i.e. A/3702, B/704, C-1104, C-1504, C-2603, D/11/701, D/11/702 in IREO VICTORY VALLEY, on 07.07.2010. Out of which six units were got cancelled in December, 2010 and Apartment No. B/704 was sold to Mr. Vivek Arora and Mrs. Meenakshi Arora. The complainant booked Floor No. C/1242, in Ansal Esencia Floor, Sector 67, Gurgaon, on 20.07.2010, which was later on got cancelled. The complainant entered into an agreement to sell dated 12.02.2011 with one Rajesh Bhardwaj and took earnest money of Rs.11/- lacs, for Villa No. B-57. From plaint allegations in Civil Suit No.306 of 2011, it is proved that the complainant was again negotiating to resell this villa to a third person. Thus it is proved that the complaint had been purchasing and selling properties in Hyderabad. All of a sudden, large number of flats, plots and villa in NCR were booked and some of them cancelled/sold.

13.    The word “consumer” has been defined under Section 2 (1) (d) and word “service” has been defined under Section 2 (1) (o) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which are quoted below:-

Section-2 (1) (d).- “consumer” mean any person who,-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such use is made with approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails such services for any commercial purpose;

Explanation.- For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning livelihood by means of self employment.

Section 2(1) (o):- “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

14.    The term “housing construction” has been added by Act No.50 of 1993, under Section-2(1) (o) of the Act. Earlier the Explanation was added by Act No. 50 of 1993 w.e.f. 18.06.1993 under Sction-2(1) (d) (i) of the Act. By Act No. 62 of 2002, w.e.f. 15.03.2003, Section-2(1) (d) (ii) was also amended and the term “but does not include a person who avails such services for any commercial purpose” has been added in it and the Explanation was placed in last. Scope of the Explanation as well as expressions “commercial purpose” and “the purposes of earning livelihood by means of self-employment” came up for consideration before Supreme Court in relation to purchase of goods in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583. In which, it has been held that the Explanation was an exception to an exception. Expression “commercial purpose” has not been defined, as such, its dictionary meaning has to be taken into consideration. “Commerce” means financial transaction, especially buying and selling of merchandise on large scale. As in the Explanation, the purposes of earning livelihood by means of self-employment, has been excluded from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such buyer from the purview of the “consumer” so long as it is used by the buyer or his family members or with the help of one or two other persons. It is question of fact and has to be decided in each case independently. In this case, three generator sets were purchased for the purposes of the factory by the complainant and it was held that it was for commercial purpose.

15.    A four Members Bench of this Commission in Synco Textiles Pvt. Ltd. Vs. Greaves Colton & Company Ltd., 1990 SCC OnLine NCDRC 3, held that the expression “for any commercial purpose” are wide enough to take in all cases, where goods are purchased for being used in any activity directly intended to generate profit. Going to the plain dictionary meaning of the words used in the definition section, the intension of the Parliament must be understood to be to exclude from the scope of the expression ‘consumer’ any person who buys goods for the purposes of their being used in any activity engaged on a large scale for the purposes of making profit. The Parliament wanted to exclude from the scope of the definition not merely persons who obtains goods for resale but also those who purchase goods with a view of using such goods for carrying on any activity on a large scale for the purposes of earning profit. This judgement has been approved in Laxmi Engineering’s case (supra).

16.    Supreme Court in Banga Danial Babu Vs. Sri Basudeva Constructions, (2016) 8 SCC 429, held that it can be unhesitatingly stated that though the controversy in the said case had arisen before the amendment of 2002, the principles laid down therein would apply even after the amendment, if the fact situation comes within the four corners of the aforestated principles.  

17.    In view of the aforesaid discussion, it is held that the complainant is doing business of purchasing and selling immovable properties on large scale. The complainant and his entire family is residing in Hyderabad, in their own house. The complainant has not disclosed any need and purpose for purchasing residential flats/villa/plot, in Delhi NCR. The complainant himself entered into agreement to sell dated 12.02.2011 with one Rajesh Bhardwaj and took earnest money of Rs.11/- lacs, for Villa No. B-57 and sold his flat in IREO VICTORY VALLY. The complainant is not a ‘consumer’ within the meaning of Consumer Protection Act, 1986 and the complaints are not maintainable.

O R D E R

Both the complainants are dismissed as not maintainable with liberty to approach appropriate forum for the required reliefs.