DR. SADHNA SHANKER, MEMBER

1.       This appeal has been filed under section 19 of the Consumer Protection Act, 1986 in challenge to the Order dated 14.10.2016 of the State Commission in complaint no. 38 of 2015, whereby the complaint filed by the complainant was dismissed.

2.       We have heard Mr. Alok Kumar, learned senior counsel assisted by Mr. Amit Kumar Singh, learned counsel for the appellant and the learned counsel for the respondent and perused the record including the State Commission’s impugned Order dated 14.10.2016 and the memorandum of appeal.

3.       The case of the complainant is that the complainant, vide agreement dated 11.04.2011, booked Meri Gold one house / bungalow No. 51 area 1750 sq. fit. in Floral City, Village Duda, P.H.No. No. 118/51, R.N.M. Raipur -1 Tehsil & Distt. Raipur, Chhattisgarh for a total consideration of Rs.46,12,500/- and paid Rs. 10,00,000/- as booking amount in cash. Thereafter, the complainant paid an amount of Rs. 30,00,000/- upto 20.05.2011 and the remaining amount of Rs. 6,12,500/- had to be paid at the time of handing over the possession of the house / bungalow. The registered deed was executed between the complainant and the respondents on 23.05.2011. The complainant paid the remaining amount of Rs. 6,12,500/- along with Rs.35,000/- for electricity connection and Rs.26,780/- for service tax, upon which the possession and keys of house were delivered to the complainant. It is alleged that the possession of the house / bungalow had to be handed over to the complainant on or before December 2011 but the possession was given on 26.07.2014.

4.       The complainant filed a complaint before the State Commission seeking compensation in the shape of interest at the rate of 2% per annum on the deposited amount for delay in delivery of possession of the house / bungalow along with Rs. 7,000/- per month as rent from January 2012 to 26.07.2014 and Rs. 1,75,000/- towards physical and mental harassment.

5.       The State Commission vide impugned Order dated 14.10.2016 dismissed the complaint for want of evidence regarding date of handing over of possession of house / bungalow.

6.       Aggrieved by the said Order of the State Commission, the complainant filed the instant appeal before this Commission.

7.       Learned senior counsel for the appellant – complainant submits that as per Clause 15 of the agreement, the delivery of the house / bungalow had to be handed over to the respondent in December 2011 and the respondents had failed to hand over the possession of the house / bungalow within the prescribed time and the same was handed over on 26.07.2014. Thus, there was delay in delivery of possession of the house / bungalow and as per clause 7 of the agreement dated 11.04.2011, complainant is entitled to interest on the deposited amount at the rate of 2% per annum from 01.12.2015 to 26.07.2014. He further submits that due to delay in handing over possession of the house / bungalow, the complainant stayed in a tenanted accommodation at the rate of Rs.7000/- per month, therefore, he is entitled to the rent of Rs. 7,000/- per month from 01.12.2015 to 26.07.2014. He furthermore submits that the date of handing over the possession of the bungalow i.e. 26.07.2014 as stated by him before the State Commission was not denied by the respondents either in the pleadings, cross examination of appellants and witness as also in the evidence of the respondents, therefore, the date of handing over possession is to be taken as admitted on 26.07.2014.

8.   Learned counsel for the respondents submits that the complaint is not maintainable as the dispute is of a civil nature and the complainant does not come within the definition of ‘consumer’ under section 2(i)(d)(ii) of the Consumer Protection Act, 1986 as the complainant booked the house for investment purpose from the marketing firm and the complaint is liable to be dismissed as not maintainable. He further submits that the complainant himself stopped the construction work 3 to 4 times as he wanted to make some changes in the house, therefore, the delay occurred only because of complainant’s acts and not on the part of the respondents. He furthermore submits that there is no deficiency in service on the part of the respondents and the complaint has no merit and the same is liable to be dismissed.

9.       In so far as the question whether or not the complainant is ‘consumer’ is concerned, we may refer to the Hon’ble Supreme Court’s judgment in the Lilavati Kirtilal Mehta Medical Trust vs. Unique Shanti Developers & Ors. IV (2019) CPJ 65 (SC) case wherein the Hon’ble Court has held as under:

7. To summarize from the above discussion, though a straight- jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial purpose’:

(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose’ is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.

(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity.

(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.

(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self-employment’ need not be looked into.

(emphasis supplied)

10.     In our opinion the construction work of the house / bungalow had no ‘close and direct nexus’ with any profit-generating activity. Therefore, the complainant is a ‘consumer’ within the definition under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.

11.     The main issue in this case is regarding the date of handing over possession of the house / bungalow to the complainant. The complainant is claiming that the possession was handed over on 26.07.2014; however, no documentary evidence of any kind has been placed on record to prove the said date. It is also seen that after the date on which the possession was to be given in December 2011 till the legal notice was sent by the appellant to the respondents on 30.11.2015, no request / application / letter / reminder regarding possession of the house / bungalow was addressed by the appellant to the respondents. The first communication in this regard is the legal notice dated 30.11.2015.

12.     As regards the argument regarding admission of date of delivery of possession of the house / bungalow by the respondents is concerned, a perusal of the documents shows that in para 7 of the written statement / reply before the State Commission, the respondents have clearly stated that ‘para no. 7 is wrong, hence denied’. Throughout the pleadings, the respondents have challenged the assertion of the appellant that they have paid an amount of Rs.6,12,500/- representing the balance due. Further, in the reply to the legal notice dated 05.05.2016, prior to the institution of the complaint before the State Commission, the respondents have clearly challenged the date mentioned stating ‘It is true that my client had handed over the possession of the house a lot of time before 26.07.2014 and your client is making false statement’. Therefore, accepting the admission on behalf of the respondents on the date being averred by the appellant has no basis.

13.     In view of the foregoing, we find that the appellant has not been able to prove the actual date of handing over the possession either before the State Commission or before this Commission, and the finding of the State Commission in this case suffers from no infirmity warranting any interference.

14.     The appeal is therefore dismissed, with no order as to costs. Pending I.A.s, if any, stand disposed of with this Order.