Ashwani Gautam vs M/s ATS Infrastructure Ltd

This appeal has been filed under section 19 of the Act 1986 in challenge to the Order dated 21.12.2018 of the State Commission in complaint no. 307 of 2018.

Heard the learned counsel for the appellant (the ‘complainant’) and the learned counsel for the respondent (the ‘builder co.’). Perused the record including inter alia the impugned Order dated 21.12.2018 and the memorandum of appeal.

Briefly, the complainant is a subsequent allottee of the subject flat, having purchased the same from the original allottee. He filed the complaint inter alia asking for the occupancy certificate, execution of the conveyance deed and the maintenance agreement and allotment of covered / basement car parking space along with pecuniary compensation. The pleadings had been completed and the evidence had been taken. The State Commission vide its impugned Order passed on miscellaneous applications preferred by the builder co. dismissed the complaint on the preliminary issue that the complainant was not ‘consumer’ within the meaning of Section 2(1)(d)(ii) of the Act 1986 since he had acquired the subject flat for ‘commercial purpose’.

The facts on which the State Commission based its findings were that the complainant had earlier taken another flat of the same builder co. as a subsequent allottee and had thereafter sold the same and now he has again taken the subject flat as a subsequent allottee and also that he is involved in the business of sale and purchase of property i.e. he is a real estate broker.

The complainant in person submits that he is a real estate consultant and also works as a broker.  He admits that he had earlier taken a flat of the same builder co. as a subsequent allottee and submits that he had stayed in it only for some time and thereafter disposed it off since he did not find it suitable for his self-habitation needs. He has now taken the subject flat and is staying in the same from March 2015 onwards. His prayer is essentially for providing the occupancy certificate and executing the conveyance deed and the maintenance agreement and allotting car parking space. He wishes to continue to reside in the subject flat further still. Refund of the deposited amount etc. has not been asked for. Submission is that his profession per se should not be a relevant consideration to be read to his detriment when on the face of it itself it is quite clear that he has taken the subject flat for his self-occupation and is residing there and his prayer is for aspects related to possession and self-occupation.

Learned counsel for the builder co. submits that there is no infirmity in the appraisal of the facts by the State Commission. Submission is that the complainant is a real estate broker and is indulging in sale and purchase of property and the subject acquisition too was for ‘commercial purpose’.

We may first observe that whether or not the transaction in consideration is for ‘commercial purpose’ is a question of fact, to be determined in the facts and circumstances of each case.

In the instant case, irrespective of the fact that the complainant is a real estate consultant or broker and is engaged in sale and purchase of property, the material fact remains that he has been residing in the subject flat from March 2015 onwards till date and his prayer is essentially to provide occupancy certificate and execute the conveyance deed and the maintenance agreement and allot car parking space which are aspects related to possession and self-occupation. As such, in so far as the present transaction apropos the subject flat is concerned, from the material at hand it cannot be construed that this particular transaction is for ‘commercial purpose’. Therefore the complainant can be excluded from the definition of ‘consumer’ in respect of the present transaction relating to the subject flat which is in his self-occupation and in respect of which he submits that he wishes to continue to reside further.

In the facts and circumstances of the present case we find that the transaction in question is not for ‘commercial purpose’ and the State Commission has erred in dismissing the appeal on this ground.

It is also seen that the evidence in this case has been taken and the case was at the stage of final arguments on merits on the substance of the dispute.

Sequel to the discussion above we set aside the impugned Order dated 21.12.2018 of the State Commission and remand the case back to the State Commission with the observation that in the facts and circumstances of the present case (alone) the complainant shall be treated as ‘consumer’ within the meaning of definition of Section 2(1)(d)(ii) of the Act 1986. The State Commission is requested to decide the complaint on merit as per the law. The parties are directed to appear before the State Commission on 29.12.2022.

The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel. The Registry is also requested to forthwith communicate this Order to the State Commission by the fastest mode available. The stenographer is requested to upload this Order on the website of this Commission immediately.