SANJAY BANSAL vs Vipul Ltd. And Anr.

BY this order, we propose to decide the preliminary issue of maintainability of the present consumer complaint. The whole controversy revolves around the question "whether the complainant is the consumer as envisaged by the definition under Section (1)(d) of the Consumer Protection Act, 1986"? Sanjay Bansal has filed this complaint under Section 21 of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the opposite parties - builders in respect of four flats booked by him in the proposed project of the opposite parties known as "Orchid Petals" located in Sector 49, Gurgaon, Haryana. The prayer clause in the complaint is reproduced thus: It is therefore, most respectfully prayed that this Hon''ble Commission may kindly be pleased to direct the opposite parties to:

(a) Execute the buyers agreement/sale deed with the complainant qua flat Nos. 1103, 1203, 903 in tower No. 15 and flat No. 1402 tower No. 21 in Orchid Petals Condominium Complex 1 Sector 49, Gurgaon, Haryana

(b) Pay Rs. five lakhs as compensation for the harassment, agony and pain suffered by the complainant.

(c) Pay cost of the proceedings; and/or

(d) Any other/further compensation as complainant may be entitled may also be granted.

THE opposite party No. 2 in its response to the complaint besides denying the allegations of the complainant on merits have raised preliminary objection against the maintainability of the present complaint on the ground that the complainant is not covered by the definition of the "Consumer" as envisaged in Section 2(1)(d) of the Consumer Protection Act, 1986. We have heard respective Counsel for the parties on the issue of maintainability of the complaint and perused the record.

LEARNED Counsel for opposite party No. 2 has taken us through the complaint filed by the complainant - Sanjay Bansal and submitted that admittedly the complainant had booked four flats in the project of the opposite party being flat Nos. 1103, 1203 and 903 in tower No. 15 as also flat No. 1402 in tower No. 21 in the Orchid Petals Condominium Complex 1 Sector 49, Gurgaon, Haryana. Learned Counsel argued that the fact that the complainant has booked four flats in the project on the same day is a clear indication that the flats were not booked for residence and the real purpose behind booking of the flats was to make commercial gains by later on selling the flats on premium. Learned Counsel argued that since the flats were booked for making profit on re -sale, obviously the services of the opposite parties were hired/availed in relation to the commercial purpose. As such complainant cannot maintain the consumer complaint under the Act. Learned Counsel for opposite party No. 2 in support of his contention has referred to the judgments of Co -ordinate Benches of this Commission in the matters of M/s. Saavi Gupta and Others v. M/s. Omaxe Azorim Developers Pvt. Ltd. & Ors., IV : (2012) CPJ 327(NC),in compliant No. 208/2012 decided on 1.10.2012 and judgment of the National Commission in the matter of Jag Mohan Chhabra and Anr. v. DLF Universal Ltd., IV : (2007) CPJ 199 (NC).

LEARNED Counsel for the complainant on the contrary has contended that the complainant is not an investor and he actually booked four flats for himself and his family members. There is no intention on the part of the complainant to make profits in respect of the aforesaid bookings by resale of the flats in question. In support of his contention, learned Counsel has drawn our attention to Para 2 of the complaint wherein the complainant has alleged that he applied for allotment of aforesaid four flats for himself and his family members. Learned Counsel argued that similar issue came up before the National Commission in the matter of Vasant Shankar Toraskar & Ors. v. Shreeji Builders, II : (2012) CPJ 473 (NC), wherein the National Commission rejected similar plea of maintainability raised by the opposite party in that case. We have heard the rival contentions and perused the record. Admittedly the complainant had booked four flats in the Orchid Petals project of the opposite parties on 4.8.2004. The fact that the complainant had booked four flats makes it clear that the aforesaid booking obviously was not for the purpose of residence and the hidden purpose behind aforesaid four bookings was to make profits on re -sale of the properties. Our aforesaid conclusion is strengthened from the fact that the complainant admittedly booked four flats knowing fully well that the opposite parties did not have necessary sanctions and approvals for the project at the relevant time. The plea of the complainant that he had booked those flats for himself and his family members is not acceptable for the reason that in the complaint the complainant has not clarified who were the family members for whose residence he had booked those flats. The complainant has placed on record the terms and conditions for registration and allotment of flats in the aforesaid project. On perusal of the terms and conditions signed by the complainant for respective flats it is clear that all these terms and conditions vis -a -vis the booked flats are signed by the complainant at Gurgaon on 4th August, 2004 as sole/1st applicant. Though there is a column for signature of second applicant, it has not been signed by anyone. Had the plea of the complainant that he had booked those flats for the residence of his family members been correct, he would have obtained the signatures of the respective family members as second applicant for whom the respective flats were booked. Thus, we have no hesitation in concluding that the flats in question have been booked by the complainant with the intention to make commercial gains by re -selling the flats on completion at higher rate.

SECTION 2(1)(d) of the Consumer Protection Act, 1986 defines the term consumer. Relevant portion of the aforesaid provision is reproduced thus: [hires or avails of] any services for a consideration which has been paid or promised or partly paid and part by promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 3 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, [but does not include a person who avails of such services for any commercial purpose];

[Explanation - -For the purposes of sub -clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self -employment;]

ON reading of the above provision it is clear that the person who hires or avails of any service for any commercial purpose is excluded from the definition of the consumer. Thus, in view of our conclusion that the complainant had booked four flats as an investment to make profit by re -sale, the complainant does not fall within the definition of the "consumer". As such he cannot maintain the consumer complaint under the Act. The judgment in the matter of Vasant Shankar Toraskar & Ors. (supra), relied upon by the complainant, is of no avail to him for the reason that the aforesaid judgment basically deals with the interpretation of joint venture agreement arrived at between the parties in that case. In view of the discussion above, the complaint is dismissed as not maintainable. The complainant however shall have liberty to approach the Civil Court or appropriate Fora to seek relief. No order as to cost.