DR. ASOK CHERIYAN vs KERALA TRADE CENTRE & ORS.

The complainant who is a Non-Resident Indian, booked an apartment in a building namely Kerala Trade Centre which the OP No. 2 namely Kerala Chamber of Commerce & Industry was to develop on the land owned by OP No. 3 Cherupushpam Films Private Limited. The sale consideration for the aforesaid flat was agreed at Rs.59,76,000/- and the possession was agreed to be delivered by December 2009, subject to the complainant fulfilling all his obligations in terms of the agreement executed between the parties on 28.07.2009. The complainant has already paid a total sum of Rs.59,76,000/- to OP No.2. Vide letter dated 24.01.2014, OP No. 2 informed the complainant that the project had been completed and was ready for occupation. He was further informed that they had started handing over of the apartments on one to one basis in order to enable the owners to proceed with the interior work. The interior work was accordingly carried out by him. The case of the complainant is that the possession of the said flat has not been handed over to him and the entire building has been attached by South Indian Bank, Banker of the builder. Though the flat allotted to the complainant was released at a later date, the common areas etc. according to the complainant still remain attached. The complainant is therefore, before this Commission seeking the following reliefs: a) Direct the OPs to deliver the possession of the flat to the complainant and execute necessary documents for registration of the apartment no. 1 in the 12 th Floor of the Kerala Trade Centre in the name of the complainant as per the agreement between the parties;

b) In the alternative direct the OPs to refund the entire principal amount of the flat and the amount spent for furnishing the flat by the complainant and in addition to the same pay damages in consonance to the prevailing market rate of the flats in the neighbouring area at the time of passing judgment in this complaint;

c) Grant interest @ 18% per annum to the complainant qua his principal amount to the tune amounting to Rs.1,05,57,180/- (till 31.07.2014);

d) Grant an amount of Rs.9,86,800/- to the complainant spent by him towards furnishing the apartment;

e) Grant 20,00,000/- (Twenty lacs) to the complainant towards mental torture, harassment and gross deficiency in service rendered by the OP and compensation for loss of his professional engagements on several occasions from the year 2009 to 2014;

f) A direction to deposit an amount of Rs.5,00,000/- in the National Commission to be utilized for the welfare schemes meant for bona-fide consumers;

g) Grant cost of Rs.1,00,000/- (One lac) towards litigation expenses incurred by the complainant.

The complaint has been resisted by OP No. 2 on several grounds including that the flat in question having been purchased for a commercial purpose, the complainant is not a consumer as defined in the Consumer Protection Act.

Section 2(1)(d) of the Consumer Protection Act which defines the term "Consumer", excludes from the said term, a person who purchases goods or hires or avails service for a commercial purpose. Para 2 of the preliminary objections taken in the written version reads as under: This consumer complaint is prima facie not maintainable against opposite parties 1 and 2 since complainant has booked the apartment no.12-1 in the Kerala Trade Centre for commercial purpose. The complainant is having an Apartment No.8C, Pine Wood, Skyline City Park, Jawahar Nagar, Kadavanthra, Kochi-20 and 3 residential houses in Cochin City alone, in the posh housing colony, Panampilly Nagar complainant is having two residential houses and in Jawahar Nagar complainant is having another residential house. In addition to the above complainant is having residential house at Tharakantangu, Kizhekkanada, Chengannur, the address shown in the cause title of this consumer complaint. Hence this consumer complaint is not maintainable either in law or on facts of the case. Complainant is only an investor and not a consumer who has purchased apartment no.12 - 1 for his residence. Complainant is maintaining apartment no.12A as luxurious sea facing apartment and renting it out to his selected NRI Clients on huge rent.

The corresponding paragraph of the rejoinder filed by the complainant reads as under:

The averments in para no.2 of the preliminary objections of the version are wrong and denied by the complainant. The complainant has purchased Apartment No.12 A in Kerala Trade Centre to be used for his own residential purpose for a seaside stay. The allegations that he is rendering it out to his selected NRI clients in huge rents are baseless as the complainant himself though has completely furnished the flat could not stay there even for a single day. Complainant having a residential house does not disqualify him from owing a sea-facing Apartment for his own stay. So holding more than one houses in his name cannot be stated that the complainant has purchased the flat for commercial purpose. Further the flat was booked for residential purpose in the area of the Kerala Trace Centre which has been provided only for residential purpose. The complainant is not aware whether the opposite party is allowing its residential flats to be utilized for commercial purpose. The complainant was conveyed at the time of sale that the residential area/flats would be strictly used for residential purpose only. Hence the present complaint filed by the complainant is maintainable being that he is a consumer mas defined under the Consumer Protection Act, 1986.

It would be seen on a perusal of the aforesaid extracts from the pleadings of the parties that the complainant did not deny the allegation of the OP that he is having apartment no. 8C, Pinewood Skyline City Park, Jawahar Nagar, Kadavanthra, in Kochi, and owns three residential houses in Cochin city alone. Out of them, two residential houses are in a housing colony namely Panampilly Nagar whereas one house is in Jawahar Nagar. In addition to the aforesaid three houses in Cochin, the complainant has a residential house at Tharakantangu, address of which has been given in the complaint itself. Thus, there is an admission contained in the pleadings of the parties that at the time of booking this flat, the complainant was already having one house in Tharakantangu and three residential houses in Cochin city. As noted earlier, the complainant is a Non-Resident Indian. The booking of the flat was made by him in the year 2009 and he still continues to be a Non-Resident Indian. No explanation was given by the complainant as to why he booked the flat in question with OP No. 2 despite having one house in Tharakantangu and three houses in Cochin city alone. No explanation in this regard is found either in the rejoinder or in the affidavit filed by the complainant by way of his evidence.

When this matter was heard on 22.12.2016 and the preliminary objection was emphasised by the learned counsel for the OP, the learned counsel for the complainant sought time to take instructions. Today he seeks to file additional written submissions in order to give an explanation for his booking the flat in question despite his owning one house in Tharakantangu and three houses in Cochin city. The learned counsel further submits that in the rejoinder, the complainant had emphatically denied the allegations of the OP that the flat in question had been booked for commercial purpose and had reiterated that the flat was booked solely for residential purpose. In my view, the explanation sought to be given by the complainant by way of written submissions cannot be taken on record at this stage. If he had any explanation to offer, he ought to have given the same while filing his rejoinder. At best, he could have given this explanation while filing his affidavit by way of evidence. Any explanation sought to be given at this stage, after the matter have been partly heard is nothing but an after - thought and therefore, cannot be considered.

Thus, the factual position is that the complainant owned a residential house in Tharakantangu besides three residential houses in Cochin at the time the flat in question was booked. In the absence of any explanation for booking the flat in question despite owning the aforesaid houses coupled with the fact that the complainant is a Non-Resident Indian, it would be reasonable to infer that the flat in question was booked by him for commercial purpose by making profit by selling it at a later date. It is true that merely booking a residential flat despite owning another residential house does not necessarily lead to an inference that the second house was sought to be purchased for a residential purpose, but, when a person despite owning a number of residential houses, agrees to purchase yet another house and he fails to offer any explanation for agreeing to purchase a new house despite owning as many as four houses, the presumption that he had entered into the transaction for a commercial purpose would be justified. This would be more so in a case when the complainant happens to be an NRI.

For the reasons stated hereinabove, I am satisfied that the complainant having booked the flat in question for a commercial purpose, is not a consumer as defined in Section 2(1)(d) of the Consumer Protection Act. The complaint is therefore, dismissed. It is however, made clear that dismissal of the complaint shall not come in the way of the complainant/petitioner approaching a Civil Court for the redressal of his grievances against the respondent. In the event of the complainant/petitioner approaching a Civil Court, he shall also be entitled to seek benefit of the provisions contained in Section 14 of the Limitation Act, if such a benefit is otherwise admissible to him in law.