KAVITA KOTHARI vs SAMRIDDHI DEVELOPERS PVT. LTD. 7 3 ORS.

This appeal has been filed under section 19 read with Section 21(a)(ii) of the Consumer Protection Act, 1986, challenging the impugned order, dated 24.07.2015, passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as "the State Commission") in Miscellaneous Application No. 516/2014 and Miscellaneous Application No. 596/2014, filed in Consumer Complaint No. CC/106/2012, filed by the present appellant before them, vide which, it was held that the complainant was not a consumer and hence, the consumer complaint was dismissed.

In her Consumer Complaint No. 106/2012, filed before the State Commission, the complainant Kavita Kothari stated that she was one of the purchasers in respect of two flats for personal residence in the building promoted by the OPs. The OPs 2 to 4 were the owners of their respective adjacent plots and they jointly entered into a Development Agreement with the OP-1 builder Samriddhi Developers Pvt. Ltd. for getting a multi-storey building constructed on the said land. The developer was to construct the building as per the plan sanctioned by the local Municipal Committee and by using its own funds. The building was to be completed within a period of three years, which was subsequently enhanced by another year. The building plan was duly sanctioned by the local municipality on 15.06.2006. The OP-1 and OPs 2 to 4, the owners entered into two agreements for sale with the complainant on 20.11.2007, according to which, the super built-up area of about 2500 sq. ft. together with undivided proportionate share of the land and common area and facilities was to be given to her. The possession of both the flats was to be handed over by the OP-1 by 20.05.2009. The complainant paid a sum of Rs. 10 lakhs till the date of filing the complaint and the balance payment of Rs. 15 lakhs was to be made at the time of registration of the conveyance deed. The complainant alleged that even after expiry of 7 years from the date of receipt of the sanctioned plan, only the structure and the brick work was completed and the finishing work was yet to be done. Subsequently, OPs 2 to 4 had sold their land in favour of the OP-1. The complainant issued a legal notice to the OP-1 on 28.07.2011, demanding delivery of the flats. The OP-1 denied that any agreement had been entered with the complainant. The complainant filed the consumer complaint in question, seeking directions to the OPs to pay Rs. 25 lakhs on account of compensation for mental agony, Rs. 10.76 lakhs on account of accrued compensation for occupational charges, a sum of Rs. 5,30,630/- on account of accrued interest on the investment made and Rs. 1,000/- per day from the date of filing of the complaint, till the delivery of possession.

During proceedings before the State Commission, two Miscellaneous Applications were filed before them - M.A. No. 516/2014 was filed by the OPs, challenging the maintainability of the complaint, while M.A. No. 596/2014 was filed by the complainant, seeking attachment of property of OP-1 for violation of order of injunction dated 09.09.2013.

It was stated in M.A. No. 516/2014 by the OPs that as per rates laid down by the Government, the case was beyond the pecuniary jurisdiction of the State Commission. Further, the complainant had entered into agreement for purchase of two flats and hence, she was not a consumer under the Consumer Protection Act. In support of their arguments before the State Commission, the OPs relied upon the decision of the Hon''ble Apex Court in (2008) 7 SCC 166, K. Sagar, Managing Director, Kiran Chit Fund, Musheerabad vs. A. Bal Reddy & Anr. and the decision of this Commission in Chilukuri Adarsh Vs. Ess Ess Vee Constructions 2012 (3) CPR 10 (NC) , saying that when a consumer booked more than one unit of residential premises, it amounted to booking for investment/commercial purpose. In M.A. No. 596/2014, filed by the complainant, it was stated that the OPs had violated the order of injunction dated 09.09.2013, passed by the State Commission and created third party interest in respect of the property.

The State Commission came to the conclusion that the booking of two flats by the complainant was for commercial purpose and hence, the complainant could not be stated to be a consumer. Consequently, the State Commission ordered the dismissal of the consumer complaint. Being aggrieved against this order, the appellant is before this Commission by way of the present first appeal.

During hearing before me, the learned counsel for the petitioner has drawn attention to the order passed by the Hon''ble Supreme Court in Faqir Chand Gulati vs. Uppal Agencies Pvt. Ltd. (2008)10 SCC 345 , saying that the agreement for construction of a residential building on the land provided by the land owner was not to be treated as joint venture and in such cases, the applicant would be a consumer, although he was to be delivered one apartment or more. The learned counsel for the respondent has, however, drawn attention to the order passed by this Commission in Jag Mohan Chhabra & Anr. vs. DLF Universal Ltd., IV (2007) CPJ 199 NC , in which it was stated that the complainant had purchased a number of apartments on the ground, first and second floors in the properties in question and the transaction was related to a commercial purpose and hence, the complainants were not consumers. A Civil Appeal against this order of the National Commission was dismissed by the Hon''ble Apex Court. Further in Indrajit Dutta vs. Samriddhi Developers Pvt. Ltd. & Ors. in First Appeal No. 1219/2014, decided on 05.02.2015, it was held by this Commission that when a consumer had booked more than one unit for residential purposes, it amounted to booking for commercial purpose. In , it was Chilukuri Adarsh vs. M/s. Ess Ess Vee Constructions (supra) held that since two showrooms were to be purchased, it amounted to a commercial purpose. An appeal filed in the Supreme Court against this order of the National Commission was also dismissed. Further in Sh. Sunil Gupta vs. M/s. Today Homes and Infrastructure (P) Ltd., C. C. No. 5/2014, decided on 03.02.2014, a similar view had been taken by this Commission.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

From the facts brought on record, especially those stated in the consumer complaint, it is clear that the complainant sought to purchase two apartments from the OPs for residential purpose. It has not been explained anywhere as to why the complainant sought to purchase two residential flats. Had the complainant explained in detail that she wanted two flats for her own living, or for living of her close family members, it could have been construed that the purchase was not for a commercial purpose. In the absence of any such explanation, the contention of the complainant cannot be believed that the purchase was not for a commercial purpose.

The complainant has tried to take shelter under the order made by the Hon''ble Apex Court in Faqir Chand Gulati vs. Uppal Agencies Pvt. Ltd. (supra) . However, the facts of that case are entirely different from the facts of the present case. It was held in Faqir Chand Gulati vs. Uppal Agencies Pvt. Ltd. (supra) that if a development agreement is entered between the owners of land and developer, under which the owner of the land is to be given a number of flats for their personal use or otherwise, the said agreement is not to be treated as joint venture and in such case the land owner shall fall under the definition of consumer vis-a-vis a builder. Such a view has been taken in a recent judgment passed by the Hon''ble Apex Court on 22.07.2016 in Bunga Daniel Babu vs. Sri Vasudeva Constructions & Ors. in Civil Appeal No. 944/2016 . It has been stated therein that the land owner, who enters into an agreement with a developer in such cases, shall fall in the category of consumer. However, the view taken in these cases does not cover the facts of the present case. The complainant in this case is a purchaser of the property being developed by the OP-1 builder on the land provided by the land owners, who have been made OPs 2 to 4 in the consumer complaint. It cannot be stated therefore that as purchaser of two flats, the complainant falls under the definition of consumer.

Based on the discussion above, I do not find any illegality, irregularity or jurisdictional error in the orders passed by the State Commission and the same is upheld. The present appeal is ordered to be dismissed with no order as to costs.