NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION |
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NEW DELHI |
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CONSUMER CASE NO. 976 OF 2017 |
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...........Complainant(s) |
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Versus |
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...........Opp.Party(s) |
15. So far as the question of Complainant being or not being
a consumer is concerned, this Commission has already taken a view in a number
of cases that if the complainant is not in the business of purchase/sale of the
plots/flats, he will be treated as a consumer. This Commission in Aashish
Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided
on 14.09.2016, has held as follows:-
“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”.
It was also observed that:-
“It would be pertinent to note that there is no evidence of
the complainant having purchased and then sold any residential property.
Therefore, it would be difficult to say that he was engaged in the business of
the buying and selling of the property or that villa in question was booked by
him for speculative purposes”.
16. In another case, Kavit Ahuja Vs. Shipra Estate Ltd. &
Jai Krishna Estate Developers Pvt. Ltd., I(2016) CPJ31(NC), wherein three
flats were booked by the complainant, this Commission held the complainant to
be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection
Act, 1986 and held as follows:-
“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.
8. As observed by the Hon’ble Supreme Court in Laxmi
Engineering Works (supra) what is a ‘commercial purpose’ is a question of fact
to be decided in the facts of each case and it is not the value of the goods
that matters but the purpose for which the goods brought are put to. The same
would be equally applicable to for hiring or availing services.
9. In any case, it is not
appropriate to classify such acquisition as a commercial activity merely on the
basis of the number of houses purchased by a person, unless it is shown that he
was engaged in the business of selling and purchasing of houses on a regular
basis. If, for instance, a person has two-three children in his family and he
purchased three houses one for each of them, it would be difficult to say that
the said houses were purchased by him for a commercial purpose. His intention
in such a case is not to make profit at a future date but is to provide
residential accommodation to his children on account of the love and affection
he has for his children. To take another example, if a person has a house say
in Delhi but he has business in other places as well and therefore, purchases
one or more houses at other places where he has to live presently in connection
with the business carried by him, it would be difficult to say that such
acquisition is for commercial purpose. To give one more example, a person
owning a house in a Metropolitan city such as Delhi, or Mumbai, may acquire a house
at a hill station or a place, which is less crowded and more peaceful than a
Metropolitan city, in my view, it cannot be said that such acquisition would be
for commercial purpose. In yet another case, a person may be owning a
house but the accommodation may not be sufficient for him and his family, if he
acquires one or more additional houses, it cannot be said that he has acquired
them for commercial purpose. Many more such examples can be given.
Therefore, it cannot be said that merely because of the complainant had agreed
to purchase three flats in the same complex the said acquisition was for a
commercial purpose”.
17. This Commission, in Rajesh Malhotra & Ors. Vs.
Acron Developers & 2 Ors., First Appeal No. 1287 of 2014, decided on
05.11.2015 has held as follows:-
“12. Therefore, in order to determine
whether the goods are purchased for commercial purpose, the basic pre-requisite
would be whether the subject goods have been purchased or the services availed
of with the prime motive of trading or business activity in them, for the
purpose of making profit, which, as held in Laxmi Engineering (supra) is always
a question of fact to be decided in the facts and circumstances of each case”.
18. On the basis of the above authoritative judgements of
this commission, there seems to be no iota of doubt that the Complainant in the
present complaint is a consumer. The judgment relied upon by the Opposite
Party in Consumer Complaint No.159/2012 Anil Dutt vs. M/s Business Park Town
Planners Ltd. (BPTP) (Supra) relates to a case where 10 units were booked by
one consumer and clearly this Commission has observed that a person booking 10
plots cannot be treated as consumer as the plots were booked for commercial
purpose. In Laxmi Engineering Works Vs. P.S.G Industrial Institute (1995)
3 SCC583, Hon’ble Supreme Court has observed that the finding on issue of
commercial purpose will depend on facts and circumstances in each case.
In the present case, only two flats were booked by the Complainant and therefore,
facts of the two cases are different. Thus, the judgment of this
Commission in Consumer Complaint No.159/2012 Anil Dutt vs. M/s Business Park
Town Planners Ltd. (BPTP) (Supra) cannot be applied in the present case.
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