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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

    CIVIL APPEAL NO(S). 10611 OF 2013

SANJAY BANSAL                                 Appellant(s)

                               VERSUS

M/S VIPUL LTD. (FORMERLY KNOWN AS VIPUL  INFRASTRUCTURE DEVELOPERS LTD.) & ANR.  Respondent(s)

JUDGMENT

Dr. Dhananjaya Y. Chandrachud, J.

Admit.

The  appellant  filed  a  consumer  complaint  before  the

National Consumer Disputes Redressal Commission (“NCDRC”). The

appellant alleged that there was a deficiency of service on the

part of the developers in not executing agreements in respect

of four flats which were booked by the appellant in a project

called  “Orchid Petals”  located  at Sector 49, Gurgaon. The

following reliefs were sought in the complaint:

“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

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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  respondents  raised  a  preliminary  objection  to  the

maintainability of the complaint in their counter affidavit on

the ground that since the appellant had booked four flats, the

purpose was resale and commercial gain. Hence, it was pleaded

that the appellant is not a “consumer” within the meaning of

Section 2(1)(d) of the Consumer Protection Act, 1986 (“Act”).

The  averments in that regard in the objection raised by the

second respondent are as follows:-

“1. …The complainant had applied for these flats with a clear intention of resale.   The purpose by applying for four flats i.e. on such a large scale  by  the complainant  was  only  resale for commercial  gain.   The  complainant,  as is apparent  from  his  complaint,  intended  to  make short  term  profits  by  selling  the  four  flats which were tentatively allotted to his; subject to certain conditions.   The complainant had no intention  to  use  the  four  flats  as  a residential / dwelling unit for himself or his family……”

The appellant contested the above objections and stated

that  the  flats  were  not  intended  for commercial resale

but for the members of his family.  The appellant has made the

following averments in response:

“1.   It is  admitted the complainant applied for the allotment of four flats in the ‘Orchid Petals’

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housing project, but  it  is  denied that the complainant applied for the flats  for commercial resale and to  earn  commercial gains there-from. The  complainant  wanted  to  live  near  his   family members  and  therefore,  he  applied  for  the  flats. It is surprising he applied  for the flats.   It is surprising that how and in what manner the defendant no. 2 suo  motto  came to the  conclusion of the intention of the complainant of not using the flats as residential house  for himself or his family mem- bers and also about his financial capacity to pay the installments of the flats.    The complainant belongs to prestigious alumini of India Institute of Management and is a successful entrepreneur having an Income of Rs. 2.18 Crore as per the ITR of As- sessment Year 2005-2006, Rs. 1.52 Crore as per the ITR of Assessment Year 2004-2005, therefore the op- posite Parties allegation that the complainant has no capacity to pay is incorrect.  

The NCDRC rejected the consumer complaint and upheld the

objection. The grounds which weighed with the NCDRC emerge from

the following extract from its decision:

“7. ... The fact that the complainant had booked four flats makes it clear that the aforesaid book- ing obviously was not for the purpose of residence and the hidden purpose behind aforesaid four book- ings was to make profits on re-sale of the proper- ties.   Our aforesaid conclusion is strengthened from  the  fact  that  the  complainant  admittedly booked four flats knowing fully well that the oppo- site 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 ac- ceptable 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 com- plainant  that  he  had  booked  those  flats  for  the

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residence of his family members been correct, he would have obtained the signatures of the respec- tive 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 inten- tion  to  make  commercial  gains  by  re-selling  the flats on completion at higher rate.”

Learned counsel appearing  on behalf of the appellant

submits that the fact that the appellant had booked four flats

cannot be a reason enough to hold that he is not a “consumer”

within the meaning of Section 2(1)(d). Learned counsel urged

that the decision of the NCDRC to hold that the appellant is

not a consumer is based on surmise without any evidence.

On the other hand, learned counsel appearing on behalf of

the second respondent  submitted that the appellant did not

disclose before the NCDRC the names of  the  members of his

family for whose benefit the flats were being purchased, and it

was only during the pendency of the present proceedings that in

the form of an additional affidavit, the lacuna in the pleading

is sought to be covered up.  Learned  counsel supported the

reasoning of the NCDRC that a purchaser of four flats cannot be

recorded as a “consumer”.

We find that the  NCDRC  has  proceeded to  decide the

objections to the maintainability of the complaint on an ipse

dixit.  The fact that an individual has booked four flats may

not by itself be a  circumstance  on  the  basis of which a

conclusive presumption can be drawn that he or she is not a

consumer in the absence of evidence regarding the purpose of

the purchase.  Ultimately, it is a matter to be decided on the

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basis of evidence whether, as the appellant pleads, the flats

were booked not for the purposes of resale, but for the members

of his family.  The appellant has seriously contested the claim

of  the  developer  that  the flats were booked by way of an

investment, for commercial resale.

At this stage before the NCDRC, there was no material on

the basis of which a conclusion could  have  been  drawn one

way or the other. The NCDRC has sought to  buttress its finding

by recording that the appellant had  booked the flats at a

stage when  sanction  and  approval  for  the  project had not

been obtained. This again  may  not strictly  be a relevant

consideration  since  a  prospective   buyer   may  invest  in  a

building project bonafide, placing trust in the reputation of

the builder to deliver possession.  The fact that the appellant

did not specifically mention the names of the members of his

family may be one factor which may be placed in the balance in

the  ultimate  decision.  However,  a finding,  whether  the

appellant is nor is not a consumer should have been arrived at

after  the  pleadings  were  complete and the parties had an

opportunity to adduce evidence in support of their respective

cases. Absent such an exercise, the decision of the NCDRC rests

purely on assumption or surmise.

For the above reasons, we allow the appeal and set aside

the impugned order of the NCDRC dated 5 August 2013. Consumer

Complaint No. 85 of 2006 is accordingly, restored to the file

of the NCDRC.  We  clarify  that we have not expressed any

opinion on the merits of the rival claims and contentions of

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the parties  including  on  the  question whether or not the

appellant is a consumer within the meaning of Section 2(1)(d)

of the Act.  The NCDRC shall decide that issue together with

the complaint after evidence is adduced by the parties.

At this stage, the learned counsel appearing on behalf of

the first respondent has stated that the first respondent was

proceeded against ex-parte. Learned counsel  has  requested

the Court to permit the first respondent to file its written

statement  and   to contest the proceedings. This request has

not fairly  been   opposed  on  behalf  of the appellant.  We

accordingly, permit  the  first respondent to file a written

statement  within  a period of four weeks from today and to

contest the proceedings.

The appeal is, accordingly, disposed of.  No order as to

costs.

Pending application(s), if any, shall also stand disposed

of.

..............................J.       (DR. DHANANJAYA Y. CHANDRACHUD)

..............................J.       (HEMANT GUPTA)

NEW DELHI  APRIL 12, 2019

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ITEM NO.36               COURT NO.11               SECTION XVII

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Civil Appeal  No(s).  10611/2013

SANJAY BANSAL                                      Appellant(s)

                               VERSUS

M/S VIPUL LTD. (FORMERLY KNOWN AS VIPUL  INFRASTRUCTURE DEVELOPERS LTD.) & ANR.   Respondent(s)                                                                     Date : 12-04-2019 This appeal was called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MR. JUSTICE HEMANT GUPTA

For Appellant(s)                     Mr. Shrish Kumar Misra, AOR

Mr. Kumar Manish, Adv. Mr. Ajay Kumar, Adv. Ms. Deepika Mishra, Adv.

                   For Respondent(s)

Sarojanand Jha, Adv. Kirat Randhawa, Adv. Purva Kohli, Adv.

                   Mr. Gautam Talukdar, AOR

Mr. Akshay Girish Ringe, Adv. Mr. Siddharth Joshi, Adv.

                   Mr. Gagan Gupta, AOR                      

         UPON hearing the counsel the Court made the following                              O R D E R

Admit.

The appeal is disposed of in terms of the signed order.

Pending application(s), if any, shall stand disposed of.

(MANISH SETHI)                                  (SAROJ KUMARI GAUR) COURT MASTER (SH)                                  BRANCH OFFICER

(Signed reportable judgment is placed on the file)