1.      This First Appeal is filed under Section 19 of the Consumer Protection Act, 1986 (“the Act”) against the Order dated 12.06.2017 passed by the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Nagpur (‘the State Commission’), in CC No. 15 of 2014, wherein the complaint of the Complainant (Respondent) was partly allowed.

2.      For convenience, the parties in the instant appeal are identified as per the complaint before State Commission. Dr. Shama Shivnarayan Singh Tomar is the Complainant (Respondent herein) Mr. Sunil D. Pandey is the Opposite Party (OP) (Appellant herein).

3.      Brief facts of the case, as per the Complainant, are that she entered into a sale agreement with the OP to purchase plots No. 9 to 14 and 24 to 27 in Surabuldi for total consideration of ₹5,32,052/- and paid the entire amount to OP. She entered into another sale agreement with the OP to purchase plots No. 13 to 32 in Kinhala for ₹53,93,300/-. An initial amount of ₹30,50,000/- was paid, followed by additional payments of ₹1,00,000/- and ₹2,00,000/-. OP obtained the necessary permissions for non-agricultural use and town planning for Surabuldi but failed to do so for Kinhala. The OP did not take necessary steps to convert the land in Kinhala for non-agricultural use or obtain the required layout plan sanction. She demanded refund of the amount paid for the Kinhala plots. The OP refunded ₹10,00,000/- but did not return ₹23,50,000/- balance. She issued a legal notice on 06.01.2014, demanding sale deed execution for Surabuldi plots and refund of balance for Kinhala plots. In the absence of any action by OP, she filed a complaint before State Commission for execution of registered sale deed for Surabuldi plots, refund of ₹23,50,000/- for the Kinhala plots with 18% interest from the date of payment, compensation of ₹50,000/- and costs of ₹20,000.

4.      The OP appeared before the State Commission but failed to file a written version within the statutory period. The request for filing delayed reply was rejected by the State Commission on 17.03.2016. This was appealed against in FA No. 373 of 2016 before this Commission, which was also dismissed on 22.11.2016, upholding the original order.

5.      The State Commission, vide order dated 12.06.2017 partly allowed the complaint with the following reasons and findings:-

“14. It is seen from one of the agreement to sale and documents filed on record by the complainant that the O.P. had agreed to sale plot Nos.13 to 32 of village Kinhala for a consideration of Rs.5,32,052/- to the complainant and complainant paid entire consideration of the said plots to the O.P. and therefore complainant is entitled to obtain the sale deed of the same in her favour from the O.P. The complainant also entered in to another agreement to sale with the O.P. for purchasing plot Nos.13 to 32 of village Kinhala from the O.P. for a consideration of Rs.53,93,300/- as seen from the documents filed on record by the complainant. It is also proved by the complainant that she paid total consideration of Rs.32,50,000/- in respect of the said transaction. But as no necessary permission for conversion of that land for non agricultural use was obtained, she got refund of Rs. 10,00,000/- from the O.P. out of Rs.33,50,000/- and therefore she is entitled to balance consideration of Rs.23,00,500/- with interest from the O.P.

15.  Moreover, complainant is also entitled to compensation of Rs.50,000/- for physical and mental harassment and cost of Rs.10,000/-from the O.P.

16. The aforesaid decisions relied on by the learned Advocate of the O.P. are not applicable to the facts and circumstances of the present case since the O.P. has not filed reply to the present complaint and O.P. has not proved that complainant purchased the plots for commercial purpose. Thus complaint deserves to be partly allowed.

ORDER

1. The complaint is partly allowed as under.
2. The opposite party shall execute the sale deed of the plot Nos.9 to 14 and 24 to 27 of village Surabuldi of P.H.No.126, Kh.No.17/2 Taluka Umred, Dist.-Nagpur, in favour of the complainant. The complainant shall bear the expenses for execution and registration of the said sale deed. Opposite party shall also hand over the possession of the said plots on the date of sale deed to the complainant.
3. Opposite party shall refund Rs.23,50,000/- to the complainant with interest @ 15% p.a. from the date of filing of the complaint i.e. from 04/02/2014 till its realization by her.
4. The opposite party shall also pay compensation of Rs.50,000/- to the complainant for physical and mental harassment and cost of Rs. 10,000/- to her.
5. Copy of the order be furnished to both parties free of costs.”

6.      Being aggrieved by the impugned order dated 12.06.2017, the OP/ Appellant filed this present Appeal No. 1615 of 2017 seeking:

“A) To Call the Record of Complaint Case No. CC/14/15 decided by the Learned State Consumer Dispute Redressal Commission, Maharashtra, Circuit Bench, Nagpur (Shama Tomar V/s. Sunil Pandey) and be pleased to set aside the final order/ judgment, passed on Dt. 12/06/2017 by allowing the present Appeal.

B) To grant ad-interim stay to the impugned final order/ Judgment passed by the Learned State Consumer Dispute Redressal Commission, Maharashtra, Circuit Bench, Nagpur (Shama Tomar V/s Sunil Pandey) Dt. 12/06/2017 in the interest of justice.

C) Any other relief deems fit and proper looking to the nature of case and in the interest of justice.

7.      In the Appeal, the Appellant/OP raised the following key issues:-

1.   The impugned order is unsustainable as it violates the settled legal position regarding the definition of "consumer" under the Consumer Protection Act, 1986 as several plots were purchased by the Respondent. This is sufficient evidence to conclude that the plots were purchased for investment or commercial purposes.
2.  The State Commission failed to consider the Agreements of Sale dated 31.01.2011 clearly indicate that she did not purchase the plots for residential purposes but for resale, investment, and profit.
3.   The Commission failed to note that in the complaint she did not claim the plots were for bona fide residential purposes. It was explicitly stated in her complaint that OP had induced her to invest in the plots, reinforcing that they were purchased as an investment.
4. Despite noting precedents such as Rajnish Kumar v. Maxworth Realty India Ltd. [IV(2015)CPJ359(NC)] and Anil Dutt v. Business Park Town Planners Ltd [IV(2013)CPJ349 (NC)], it failed to recognize that she did not qualify as consumer under the Act.
5.   The two Agreements to Sell executed on 31.01.2011 pertained to plot clusters located at considerable distances from each other. It cannot be assumed to be for residential purposes at both locations.

8.      Despite publication of notice in two newspapers on the memo of Appeal, the Complainant failed to appear before this Commission and therefore she was placed ex-parte vide order dated 12.04.2024.

9.      The learned counsel for the Appellant/OP reiterated the facts, grounds of appeal and emphasized on the sole contention that the plots in question were purchased by her for investments and for commercial purpose and thus she is not a consumer under the Act. He sought to allow the Appeal and relied upon the following judgments:

A. Rajnish Kumar v. Maxworth Realty India Ltd, IV(2015)CPJ 359 (NC);

B. Anil Dutt v. Business Park Town Planners Ltd., IV (2013) CPJ 349 (NC).

10.    I have examined the pleadings and associated documents placed on record, including the contentions of the complainant in the complaint, and rendered thoughtful consideration to the arguments advanced by the learned Counsels for the Appellant/OP.

11.    The first issue to be determined is whether the Complainant/ Respondent is a ‘consumer’ under the Act? This said issue has already been dealt in detail by the State Commission vide the impugned order and it is appropriate to reproduce below:

9.  The learned Advocate of the OP submitted that though no defence of the OP can be considered in the absence of written version of OP, still the complaint itself shows that the complainant had invested money by entering in to an agreement to sale about several plots with the OP and therefore she is not a consumer. Thus according to him, as the plots were purchased for commercial purpose, the complainant is not a consumer and complaint is not maintainable before this Commission. He relied on the observations made in the following cases.

a) Rajnish Kumar V/s....Maxworth Realty India Ltd,, IV (2015) CPJ 359 (NC). It is observed by the Hon'ble National Commission in the said case that complainant had booked number of sites which cannot be termed as purchase for personal residence. Hence complainant is not a consumer.

b) Anil Dutt....V/s....Business Park Town Planners Ltd., IV (2013) CPJ 349 (NC). It is observed by Hon'ble National Commission in the said case that plots were purchased for reselling the same and there is no evidence that amount or part of it was paid by any other member of family and therefore the plots were not purchased for personal use and hence complainant is not a consumer.

10. On the other hand the learned Advocate of the complainant submitted that the O.P. has not proved that the plots were purchased for commercial purpose and that because of purchase of number of plots by the complainant, it cannot be presumed that they were purchased for commercial purpose. He relied on decision of the following cases.

a) Bunga Daniel Babu….V/s….Sri Vasudeva Construction and Others, (2016) 8 Supreme Court Cases 429. It is observed that whether transaction involved commercial purpose is required to be assessed on facts and circumstances of each case.

b) Dr.Poonam Aggarwal...V/s....M/s.Gujral Associates and Anr., 2017 (1) CPR 606 (NC). It is observed by the Hon'ble National Commission in the said case that unless there is evidence on record that complainant was engaged in business of selling and purchasing of properties on a regular basis, it would not be proper to classify such acquisition as a commercial activity, merely on the basis of number of units booked by such person and the view taken by State Commission is erroneous that complainant does not fall under definition of 'consumer' merely on account of the fact that she had booked three residential premises.

c) Akshay Sood.....V/s....M/s.Pal Infrastructure and Developers Pvt.Ltd.and Anr., 2017 (1) CPR 204 (NC). It is observed by the Hon'ble National Commission in the said case that mere purchase of more than one flat would not per se be sufficient to hold that purchase was for commercial purposes.

d) M/s.lREO Fiveriver Pvt.Ltd.,......V/s.....Nirmal Panghal and Ors., 2017 (1) CPR 288 (NC). It is observed by Hon'ble National Commission in the said case that plea of commercial purpose must be proved by evidence.

11. The learned advocate of the complainant therefore submitted that as it is not proved that the complainant purchased plots for commercial purpose, complaint is a maintainable and as the complaint went unchallenged due to non-filing of reply to it by the O.P., it may be allowed.

12. We find substance in the aforesaid submission of the learned Advocate of the complainant. There is no evidence to prove that the complainant purchased all plots for commercial purpose. There is no evidence to prove that the complainant is engaged in business of selling and purchasing of the plots on regular basis and therefore aforesaid decisions relied on by the learned Advocate of the complainant are applicable to the facts and circumstances of the present case.

13. We find that since the complaint went unchallenged due to not filing of reply by the O.P. to it and since there is no evidence in support of aforesaid defence taken by the opposite party, complainant is a consumer and complaint is maintainable before this Commission.

12.    In the present Appeal, the OP failed to provide any evidence to prove that she purchased the plots in question for commercial use. This issue has already been addressed by the State Commission. Further, the OP did not submit any Written Version in response to the Complaint before State Commission. As a result, the Complainant qualifies as a consumer under the Act.

13.    In view of the discussion above, I am of the considered view that the Order of the State Commission does not suffer from any illegality or impropriety, except for quantum of compensation awarded.

14.    As regards compensation, in a recent Order of the Hon’ble Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019 dated 07.04.2022 held:-

“We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts.  The Commission in the Order impugned has granted interest from the date of last deposit.  We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.

At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just.”

15.    The Hon’ble Supreme Court in the case of DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, in CA Nos. 4910-4941 of 2019 decided on 10.05.2019 has held that multiple compensations for singular deficiency is not justifiable. Therefore, award of Rs.50,000/- as compensation for physical and mental harassment by the learned State Commission is untenable.

16.    In view of the foregoing, the Order dated 12.06.2017 passed by the learned State Commission in Consumer Complaint No. CC/14/15 is modified as under:

ORDER

1. The Appellant/Opposite party shall execute the sale deed of the plot Nos.9 to 14 and 24 to 27 of village Surabuldi of P.H.No.126, Kh.No.17/2 Taluka Umred, Dist.-Nagpur, in favour of the complainant. The Respondent/complainant shall bear the expenses for execution and registration of the said sale deed. Opposite party shall also hand over the possession of the said plots on the date of sale deed to the complainant.

2. The Appellant/Opposite party shall refund Rs.23,50,000/- to the complainant with interest @ 9% p.a. from the date of filing of the complaint i.e. from 04/02/2014 till its realization by her.

3. The Appellant/opposite party shall pay Rs.10,000/- to the complainant as costs.

4. The compensation of Rs.50,000/- awarded towards physical and mental harassment is set aside.

17.    All pending Applications, if any, stand disposed of.

18.    The Registry is directed to release the Statutory Deposit amount, if any due, in favour of the Appellant, after due compliance of the order of the learned State Commission.