RAJ KUMAR GUPTA vs Sushma Construction and Ors.

BY this application the complainant is seeking dismissal of the complaint at the preliminary stage. Learned Counsel for the opposite parties Mr. Sanjoy Kumar Ghosh has contended that complainant had booked three floors in the same building which clearly indicates that the floors have been booked for commercial purpose by the complainant. As such the complaint is not maintainable under the consumer complaint. In support of this contention, learned Counsel for the opposite parties has relied upon the judgment of the Coordinate Bench in Consumer Case No. 143 of 2013 titled Ved Kumari & Anr. v. M/s. Omaxe Buildhome Pvt. Ltd. & Anr., decided on 5.3.2014 as also the judgment in Consumer Case No. 111 of 2012 titled as Chidukuri Adarsh v. M/s. Essess Vee Constructions, decided on 2.7.2012.

WE do not find merit in the above contention. The judgments relied upon by the opposite parties are based upon their own peculiar facts. It is not that in every case where a person books more than one residential flat, it has to be held that the person has booked those flats for commercial purpose. The intention of said person is to be gathered from the accompanying facts. In the instant case, the complainant has categorically alleged in the complaint that he had booked subject floors for himself and his extended family who have also made financial contributions to make payment against the consideration amount. The question whether the floors booked by the petitioner were for residence or commercial purpose is a mixed question of law and fact which cannot be determined without calling upon the parties to lead the evidence. Therefore, we do not find any reason to dismiss the complaint as not maintainable at the initial stage. Learned Counsel for the opposite parties also contended that complaint is liable to be dismissed at the initial stage because it has been filed on basis of forged and fabricated documents. We do not agree with learned Counsel for the opposite parties because the issue raised by him is a mixed question of law and fact which cannot be determined at this stage without calling upon the parties to lead evidence.

In view of the discussion above, we do not find merit in the application. Application is accordingly dismissed with cost of Rs. 2000 to be deposited by the opposite parties with ''Consumer Legal Aid Fund -NCDRC.