COMMAN JUDGMENT/ORDER
(DELIVERED ON 22/11/2024)
01. These are appeals preferred by appellant/original complainant namely Kalawati Jugalkishor Assaiyya against the order passed on 31/07/2017 by the learned Additional District Consumer Disputes Redressal Forum, Nagpur (for short as “learned Additional District Forum”) in Consumer Complaint Nos.CC/15/224, CC/15/225 and CC/15/227, vide Section 15 of the Consumer Protection Act 1986.
(Parties of these appeals are referred to in their original nomenclature of the original COnsuemr Complaint Nos.CC/15/224, CC/15/225 and CC/15/227)
02. The facts emerge from the present appeals arising out of three consumer complaints (CC/15/224, CC/15/225 and CC/15/227) are as under;
On 26/03/2011, the complainant entered into an agreement with the opposite party to purchase Plot No. 94-B in a proposed layout opposite Grihalakshmi Construction, Mouja Bothali, Taluka Umred, District Nagpur, within Patwari Halka Nos. 13-14. The plot measured 1573.65 square feet, and the agreed price was Rs. 40 per square foot, totaling Rs. 62,946. The complainant claims to have paid the full amount of Rs. 62,946 on the date of the agreement. However, despite this payment, the opposite party allegedly did not register the sale deed within the agreed period and failed to hand over possession or provide essential documents related to the plot despite multiple requests. The complainant seeks an order from the learned Additional District Forum in CC/15/224 directing the opposite party to register the sale deed for the plot. If the opposite party is unable to do so, the complainant requests a refund at the current market rate for non-agricultural land, in addition to Rs. 1,00,000/- as compensation for mental and physical distress and Rs. 20,000/- for litigation costs.
On 28/02/2011, the complainant agreed to purchase Plot No. 36 in the layout at Mouja Bothli, Taluka Umred, District Nagpur, Patwari Halka No. 13, Shet Survey No. 73. The plot area was 1894.46 square feet, priced at Rs. 40 per square foot, totaling Rs. 75,778. The complainant alleges that the entire payment of Rs. 75,778 was made on the date of the agreement. Despite receiving payment, the opposite party failed to register the sale deed, hand over possession, or provide necessary documents. Numerous requests to fulfill these obligations reportedly went unanswered. The complainant prayed the learned Additional District Forum in CC/15/225 to direct the opposite party to register the sale deed or, alternatively, provide a refund at the current market rate. The complainant also seeks Rs. 1,00,000/- as compensation for mental distress and Rs. 20,000/- in litigation costs.
On 31/07/2012, the complainant signed an agreement with the opposite party to purchase Plot No. 28 in the same layout. The plot area was 1614 square feet, priced at Rs. 35 per square foot, totaling Rs. 56,490. The complainant claims to have paid the entire amount of Rs. 56,490 on the agreement date. However, despite the payment, the opposite party allegedly failed to register the sale deed or deliver possession and related documents, even after repeated requests. The complainant prayed a directive from the learned Additional District Forum in CC/15/227 for the opposite party to complete the sale deed registration. Alternatively, if the registration is not possible, the complainant seeks a refund at the prevailing market rate for non-agricultural land, along with Rs. 1,00,000/- for mental distress and Rs. 20,000/- for litigation expenses.
In each of these consumer complaint cases, the complainant collectively alleged that the opposite party has since closed its original office and now operates under a different name, ‘Nagpur Builders and Developers’. The complainant claims that the opposite party’s inaction represents deficient service and an unfair trade practice.
03. The opposite party submitted a unified defense, denying any sale agreements with the complainants. They contend that the plots in question are agricultural and not yet approved for residential use or sale. The opposite party claims that an agent, who had access to office stamps, fabricated the documents without their knowledge, producing fraudulent agreements. They deny receiving any payments from the complainants and assert that the complaints are time-barred under the Consumer Protection Act. The opposite party contends that the complainants falsified the payment records and used signatures that may have been manipulated. Although they suspect the agent’s actions, the opposite party has not filed a police complaint citing concerns about adverse publicity. The opposite party seeks dismissal of the complaints labeling them as unfounded, fabricated and filed beyond the legal timeframe.
04. After given consideration to the evidence of the parties and their documents filed in support thereof, learned Additional District Forum by order dated 31/07/2017 dismissed the Consumer Complaint Nos.CC/15/224, CC/15/225 and CC/15/227. Being aggrieved by impugned orders of the learned Additional District Forum, these appeals preferred by complainants vide Section 15 of the Consumer Protection Act 1986.
05. We have heard the arguments of learned Advocate Mrs. Anuradha Deshpande of the appellant. We have also considered the written notes of arguments filed by the learned Advocates of the appellant.
06. We have perused the record and proceeding of the present appeal also carefully gone through the material pointed out by the appellant in support of their arguments.
07. On the rival contention of the parties, following points arise for our determination and we have recorded our findings against each of them as follows;
Sr.No. | Points | Findings |
1. | Whether the impugned orders dated 31/07/2017 passed by the learned Additional District Consumer Disputes Redressal Forum, Nagpur in Consumer Complaint Nos.CC/15/224, CC/15/225 and CC/15/227 suffers from any infirmity or illegality and needs any interference? | … In the Negative. |
2. | What Order? | … As per final order. |
REASONS
AS TO POINT NO.1 AND 2:
8. In the present appeals, the complainant contended that she intended to purchase three distinct plots, specifically Plot Nos.28, 36, and 94-B, admeasuring 1614 sq. ft., 1894.46 sq. ft., and 1573.65 sq. ft., respectively. Plot Nos. 28 and 36 are situated in Survey No. 73, while Plot No 94-B is located in Survey No.14. The complainant's primary assertion is that these plots were acquired with the intention of building a personal residence. However, in Ground No. C of the appeal memorandum, the complainant contends that her actual intention was to acquire a larger area for a more substantial residential purpose. She highlights that the combined area of 5082.11 sq. ft. was intended for constructing a spacious house that would include ample space for gardening and other residential uses. The complainant maintains that the failure of the opposite party to execute the sale deeds and hand over possession constitutes a deficiency in service and an unfair trade practice, and she seeks redress for the inconvenience and distress caused by this alleged non-compliance.
9. Under Section 2(1)(d) of the Consumer Protection Act, 1986, a ‘consumer’ is defined as any person who purchases goods for consideration, including any person who uses such goods with the consent of the buyer. However, this definition excludes those who acquire goods for resale or any commercial purpose. The legislative intent behind this provision is to ensure that the property’s use is for personal consumption and not for any commercial enterprise.
10. In the present case, the appellant/original complainant has claimed that her purpose in purchasing the three plots of land was solely for her residence. Nevertheless, certain inconsistencies have emerged regarding her intentions. During the proceedings, the learned Advocate for the appellant argued that the complainant’s real intent was to acquire a larger residence, as stated in Ground No.C of the appeal memo references a combined area of 5082.11 sq. ft. which, according to the appellant, was intended for the construction of a spacious house with ample provision for gardening and related residential amenities.
11. In advancing her argument, the learned Advocate has placed significant reliance on several judicial precedents, including Ashish Oberai vs. Emaar MGF Land Limited, I (2017) CPJ 17 (NC), Omkar Realtors and Developers Pvt.Ltd. vs. Kushalraj Land Developers Pvt.Ltd. & Anr. (2023 INSC 629) and Shriram Chits (India) Pvt.Ltd. vs. Raghachand Associates (2024 INSC 403). These judgments support the assertion that the acquisition of multiple properties does not, by itself, render a transaction commercial in nature. The appellant contends that the separate plots were intended for individual use by family members, emphasizing that her intent in purchasing the three plots was to meet her family’s residential needs. Thus, it is argued that labeling the acquisition as a commercial transaction would be inaccurate and inconsistent with the purpose underlying the Consumer Protection Act.
12. We have thoroughly examined the judgments cited by the appellant. In Omkar Realtors and Developers Pvt. Ltd. (supra), the Hon’ble Apex Court held that a flat purchased by a company for a Director’s residence does not imply commercial use merely because the company is in real estate; the burden is on the appellant to provide concrete proof if claiming the respondent is not a consumer. Similarly, in Shriram Chits (India) Pvt. Ltd. (supra), the Court clarified that the service provider must prove a service was obtained for a commercial purpose based on a ‘preponderance of probabilities.’ Only if this burden is met does the onus shift to the complainant to show the service was for livelihood under Explanation (a) to Section 2(7). In Ashish Oberai (supra), the Hon’ble National Consumer Disputes Redressal Commission held that a builder’s failure to deliver possession within the stipulated time, unsupported by a valid force majeure defense, established the complainant’s status as a consumer. It further clarified that ownership of multiple properties does not make a transaction commercial unless there is evidence of intent to profit. Thus, residential purchases are generally deemed personal, supporting the consumer’s claim for the builder's contractual non-compliance.
13. Examining the record of these appeals, we find substantial inconsistencies regarding the complainant's intent. Initially, she claimed that she was purchasing three distinct plots solely for her residence. However, upon a closer look at the appeal memo, specifically Ground No.C, it seen that her objective was not limited to a simple residence. She indicated a desire for a larger residence encompassing a spacious home with ample room for gardening covering a cumulative area of 5082.11 sq. ft. The assertion of this total land requirement was absent from the original complaints bearing Consumer Complaint Nos.CC/15/224, CC/15/225 and CC/15/227 raising significant questions about the credibility of her consumer status claim. Furthermore, the complainant’s expanded vision of a larger residence articulated for the first time in her appeals creates a deviation from her initial representation of the purchase.
14. A perusal of layout filed on record of these appeals reveals that three plots under complaints bearing Consumer Complaint Nos.CC/15/224, CC/15/225 and CC/15/227 bearing Plot Nos.28, 36 and 94-B admeasuring area 1614 sq.ft., 1894.46 sq.ft. and 1573.65 sq.ft. respectively, two in Survey No.73 and one in Survey No.14 are not physically connected nor arranged in a manner suitable for unified one. As such, the three plots in question are not contiguous as indicated by the layout filed on record. The geographical separation of these plots challenges the notion that they were acquired for a single residential purpose. If the intention had been purely residential, one might expect the plots to be physically connected or at least arranged in a manner suitable for unified use. Instead, the physical separation of these three plots undermines the argument that they were obtained to establish one cohesive family residence. In situations where a consumer seeks property for personal use, a coherent plan is generally apparent. Here, however, the dispersed nature of the plots suggests a lack of unified residential intent and potentially commercial undertones.
15. Adding to the doubt surrounding the complainant's assertions, there was also a shift in her explanation regarding the intended use of the plots. Initially, she argued that she was purchasing them solely for herself. Later, she indicated the purchase was intended to accommodate both her and her daughters. This modification in her claim notably absent from her original filing introduces ambiguity, casting doubt on whether her intentions genuinely align with the personal use criterion outlined in the Consumer Protection Act. The inconsistency in her statements raises concerns over whether her transaction can be classified under the Act’s definition of ‘consumer.
16. Given these factors, the precedents cited by the appellant do not appear fully applicable to the present case. In Omkar Realtors (supra), the Hon’ble Supreme Court dealt with the purchase of a single property by a real estate company for a director, which did not constitute commercial intent solely due to the company’s nature of business. However, here, we are faced with a situation involving multiple plots with physical separation and varied statements regarding their intended use, which creates a different factual matrix. Similarly, the Hon’ble Supreme Court in Shriram Chits (supra) and the Hon’ble NCDRC in Ashish Oberai (supra) stress the need for clear, convincing evidence to deny consumer status but also require that the service provider or seller provide proof when alleging commercial intent. In these appeals arising out of three complaints bearing Consumer Complaint Nos.CC/15/224, CC/15/225 and CC/15/227, however, seems that it is the complainant’s evolving explanations that create doubt over her claim of personal use and suggest contrary to it giving rise potentially commercial undertones. We have, therefore, no hesitation to find that the complainant’s arguments do not convincingly establish her status as a ‘consumer’ in these matters. The absence of a cohesive plan and the discrepancies in her stated purpose weigh heavily against her.
17. In light of the facts and material, the complainant’s own assertions and actions cast substantial doubt on her claim of being a ‘consumer’ under the Consumer Protection Act 1986. The complainant initially claimed that the plots were purchased for personal residential use. However, the details presented such as the acquisition of multiple, physically separated plots and the evolving explanations regarding their intended use indicate a potential commercial purpose rather than a strictly residential intent. This inconsistency is critical as it challenges the credibility of her consumer status. It is ruled that the onus to prove commercial intent lies with the service provider or seller. However, as per the Hon’ble Supreme Court in Shriram Chits (supra) and the Hon’ble NCDRC in Ashish Oberai (supra), only a preponderance of probabilities is required to meet this onus to shift. In these appeals arising out of three complaints bearing Consumer Complaint Nos.CC/15/224, CC/15/225 and CC/15/227, the complainant’s shifting statements and lack of a cohesive plan effectively provide enough basis to infer that the purchases may not be for purely residential purposes. The factual matrix differs from case of Omkar Realtors (supra), where a single property purchase by a real estate company did not imply commercial intent. Instead, the acquisition of multiple plots each with potentially distinct purposes strongly suggests commercial undertones. Thus, given the lack of consistent evidence to substantiate her claim of residential use, the balance of probabilities favors the conclusion that these purchases were intended for commercial activities. The complainant's own contradictions are sufficient to meet the burden of proof negating her claim of consumer status in these matters. Therefore, we find no hesitation in concluding that the complainant does not qualify as a ‘consumer’ under the CP Act as the evidence does not convincingly support her claim of personal residential use.
18. We have carefully gone the impugned orders passed in Consumer Complaint Nos.CC/15/224, CC/15/225 and CC/15/227 and found that the learned Additional District Forum, upon evaluating these discrepancies, rightly concluded that the complainant failed to demonstrate a definitive residential purpose necessary to sustain her consumer status under the CP Act. The learned Additional District Forum’s refusal to accept her assertions aligns with the aim and object of the Consumer Protection Act to shield genuine consumers from unfair practices while safeguarding against the potential misuse of its protections by parties not genuinely fitting the definition of consumer under this Act. These appeals reflect the importance of adhering to statutory definitions and ensuring that the CP Act is not exploited by those who cannot unequivocally demonstrate consumer intent. The learned Additional District Forum has conducted a logical, meticulous assessment of the facts and basing its conclusions on a sound interpretation of the available material. The learned Additional District Forum's decision to reject the complainant's claim as a consumer is therefore well-founded and grounded in a clear reading of the CP Act.
19. Consequently, we hold that the learned Additional District Forum’s conclusions are reasonable and justified based on the evidence presented. No apparent legal error or misinterpretation of statutory provisions exists that would warrant appellate intervention. The finding of the learned Additional District Forum has not suffered from any infirmity or illegality that needs any interference of this Commission. The learned Additional District Forum’s determinations align closely with both the legislative intent behind the Consumer Protection Act 1986 that uphold the importance of demonstrating clear personal intent when claiming consumer status. The insistence on adhering to the consumer definition in the CP Act ensures the Act’s integrity and prevents its misuse.
20. In light of the above, the appellant’s appeal lacks merit. The learned Additional District Forum's findings accurately reflect the facts on record and are supported by a sound analysis consistent with the CP Act. We uphold the learned Additional District Forum's decision, and the appeal stands dismissed. The case exemplifies the significance of evidence-based adjudication in consumer law, ensuring that genuine consumers are protected while preventing attempts to misuse consumer protections by those who do not meet the criteria outlined in the CP Act. The decision affirms the Consumer Protection Act's purpose and effectively upholds the rights of bona fide consumers.
Thus, we found no reason to interfere therein in the light of the discussion above, we are unable to accept the contentions advanced by the learned advocate for the appellants against the impugned order challenged under this appeal. Thus, we proceed to pass the following order.
ORDER
i. These appeals are hereby dismissed.
ii. Both the parties to bear their own cost, in the peculiar facts of the case.
iii. Copy of the order be furnished to both the parties free of cost.