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Judgment
Deepa Sharma, Presiding Member
These Appeals have been filed by the Complainant against the order dated 15.09.2016 by which the State Commission has decided his two Complaints No.365 of 2011 and 366 of 2011 and dismissed the same on the ground that the Complainant was not a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986.
The brief facts as made out by the Complainant in his Complaints were that he had booked two flats No.003, Alexandra C., Sector 93-B, NOIDA and 803, Regent B Tower, 8th Floor, Sector 93-B, , NOIDA in the same project. In November 2008, the Opposite Party had cancelled the bookings of his two flats and aggrieved by the cancellation, the Complainant had filed the Complaints before the State Commission.
Upon receiving the notice, Opposite Party took the preliminary objection that the flats were booked for commercial purposes to earn profit by resale of those flats.
The State Commission decided this issue in favour of the Opposite Party and non-suited the Complainant.
It is argued by the learned Counsel for the Appellant/Complainant that no doubt, the Complainant had purchased two flats but he had booked the flats for his own purpose and he never had any intention to earn any profit by resale of it. It is argued that in his Complaints, he has clearly mentioned that he had been residing in a rented accommodation and wanted to shift to his own house and since he had a son and also planned to settle his son separately, he had booked a smaller flat for his son. It is argued that the State Commission has failed to take into account the fact that the Complainant had clearly pleaded that he had been living in a rented accommodation and booked the houses for his own purpose and that there was no contradictory evidence on record. Both the Complaints were dismissed solely on the ground that he had booked two flats.
Learned Counsel for the Respondent has argued that there is no illegality or infirmity in the impugned order and the order is very well based on the judgments. It is submitted that the Appeal deserves to be dismissed.
I have heard the arguments and perused the relevant record.
The expression “consumer” has been defined in Section 2(1) (d) of the Act which any says such person who hires services for Consideration, falls within the definition of Section 2(1)(d) of the Act, such a person is presumed to be consumer unless it is shown that service has been availed for commercial purposes. The Complainant has clearly pleaded and has led oral evidence that he had been living in a rented accommodation and that he needed a house to live in. This fact has been overlooked by the State Commission and the State Commission seems to have dismissed both the Complaints assuming that the Complainant had been indulged in commercial activities of sale and purchase of the properties as he had booked two flats. This order of the State Commission is contrary to the findings of this Commission in “Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd.,2015 SCC Online NCDRC 2747”, wherein this Commission has held that the Complainant is a consumer even if he has three flats. It is a settled proposition of law that once the Complainant pleads and contends and states that he had purchased the flats for his own purposes, the burden shifts upon the Opposite Party to prove that the flats had been purchased for commercial purposes or that the Complainant was indulging in the business of sale and purchase of the properties and therefore, the property had been purchased for commercial purpose.
The impugned order is based on conjectures and surmises. The impugned order is hereby set aside. Since vide impugned order, the Complaints were dismissed on preliminary issue, while allowing both the Appeals, the Complaints are restored to their original number and the State Commission to directed to decide the Complaints on merits.
Both the parties are directed to appear before the State Commission on 18.01.2023.
It is expected that the State Commission will try and dispose of the Complaints at the earliest.
Parties are also at liberty to lead additional evidence, if needed with the permission of State Commission.