MRIDULA ROY, MEMBER.
No. 8/29.08.2014.
This order will govern the Miscellaneous Application being No. 155/2014 in CC/46/2013, Miscellaneous Application being No. 156/2014 in CC/47/2013 and Miscellaneous Application being No. 158/2014 in CC/48/2013 filed by the O.Ps of the respective three cases challenging the maintainability of the complaint case on the ground that the Complainant cannot be considered as a consumer since the disputes related to commercial purpose.
The Complainant’s case in the complaint cases being No. CC/46/2013, CC/47/2013 and CC/48/2013 is that, in a nutshell in pursuance to an advertisement by the O.Ps he contacted the O.Ps for purchasing row houses to be constructed in the project launched by the O.Ps and thus made application to the O.Ps for the same. Accordingly, the O.P. No. 1 provisionally allotted a row house for a consideration of Rs.40,01,000/- by a letter dated 27.07.2006. The Complainant claimed to have paid 70% of the consideration amount by instalments, but the O.Ps thereafter demanded some interest on various grounds although the construction work had not been in progress as promised by the O.Ps. However, in spite of several correspondences the O.Ps did not deliver the possession of the row house and thus the Complainant filed the instant case praying for relief as stated in the petition of complaint.
The O.Ps appeared and filed the instant Miscellaneous Application in respect of the complaint cases contending that booking for more than one flat will be within the ambit of commercial purpose and thus the Complainant cannot be considered as a consumer and, therefore, the instant complaint cases are not maintainable under the C. P. Act, 1986.
In course of hearing of the instant miscellaneous applications, Ld. Advocate for the Misc. Applicant has submitted that it will be evident from the record that one Mr. G. Agarwal is the intending purchaser of row houses in three respective cases. Therefore, the purchasing /hiring by the Complainant shall be considered as commercial purpose.
Ld. Advocate for the Complainant while advancing his argument opposing the submission made by the Misc. Applicant has submitted that the said G. Agarwal executed power of attorney in favour of his son. Therefore, his son should be considered as the purchaser of the row house. Ld. Advocate for the Complainant has further submitted that the sole intention of Mr. G. Agarwal was to accommodate his family members within vicinity therefore, the three row houses have been booked. Ld. Advocate for the Complainant specifically submitted that the Applicant for the row houses Mr. G. Agarwal had no intention for resale of the row houses and, therefore, the transaction should not be considered as commercial purpose and, therefore, the case is well maintainable under the Consumer Protection Act. In support of his contention the Ld. Advocate for the Complainant relied on the decision reported in AIR 1995 Supreme Court 1428 – Laxmi Engineering Works – vs. P. S. G. Industrial Institute.
Having heard both sides and on perusal of record it appears that the provisional allotment letter was issued to the purchaser, namely, Gobindaram Agarwal. It also appears from the record that the allotment agreement was also signed by Mr. Gobindram Agarwal. Therefore, it is crystal clear from the document that Mr. Gobindaram Agarwal executed the allotment agreements with the O.Ps for three cases and the provisional allotment letter was also issued to the purchaser i.e. Mr. Gobindaram Agarwal and, thus it is evident from the document that Mr. Gobondaram Agarwal booked three row houses and the said three row houses were allotted to him.
To determine the issue whether booking of more than one flat is a commercial purpose or not we rely on the decision of the Hon’ble National Commission reported in 2013 (4) CPR 24 (NC) – Anil Dutt – vs. – M/s. Business Park Town Planners wherein the Hon’ble National Commission deciding a case related to the booking of 10 plots of land by the Complainant was pleased to hold that booking more than one units of premises amounts to investment for commercial purpose.
In such view of the matter, we are of opinion that the instant complaint cases are not maintainable under the Consumer Protection Act since the Complainant cannot be considered as a consumer as per definition as contemplated in Section 2(1)(d) of the Consumer Protection Act, 1986.
In the result, Miscellaneous Applications succeed in three cases.
Hence, ordered that the Miscellaneous Applications being No. 155/2014, 156/2014 and 158/2014 are allowed on contest without cost. Consequently, the complaint cases being Nos. CC/46/2013, CC/47/2013 and CC/48/2013 are dismissed being not maintainable.
