Skip to main content

Duty of the complainants to prove that the booking done by them was not for a commercial purpose

In Majestic Properties Vs. Arun Dhandhania, the National Consumer Disputes Redressal Commission has held that It is the duty of the complainants to prove that the booking done by them was not for a commercial purpose and that, they fall within the definition of ‘Consumer’ under the Act.

The facts involved in these cases show that the main person in the whole episode is Arun Dhandhania who booked one residential flat for himself, one for his son and three other flats in the names of various companies, which were operating through him only, as Director. Although booking in three cases has been made in the name of three different companies, it has not been made clear anywhere in the evidence produced by the complainants that the said property was required for residential purpose in any manner. During arguments, it was stated that the residential property was required for the purpose of housing various directors/employees from time to time. It has nowhere been stated, however, that the property was required for the personal use of a particular director. In case, the property was to be used for the general purpose of lodging various directors/employees from time to time, it shall fall under the definition of commercial activity only. On the other hand, the learned counsel for the OP Builder has vehemently argued that the basic objective of the companies involved was to deal in real estate business and the booking of the properties had been made for commercial purpose only.

The matter has been considered by this Commission in a number of judgments passed earlier from time to time. In Kavita Ahuja vs Shipra Estate Ltd. & Anr., CC No. 137 of 2010 decided on 12.02.2015

this Commission stated categorically that the mere booking of more than one flat shall not constitute a commercial purpose, provided evidence had been given that the property being booked was meant for genuine residential purpose of the family members of the complainant and not for the purpose of sale-purchase of property. In the instant case, flats have been booked by Arun Dhandhania, acting on behalf of himself or on behalf of three companies, but it has not been made clear that the booking had been made for residential purpose only and not for the purpose of sale-purchase of the property.

20. From the foregoing discussion, it is clearly brought out that the complainants do not fall within the definition of ‘consumer’ as defined under the Consumer Protection Act, 1986 and hence, the complaints filed by them were not maintainable before the Consumer Fora in any manner. I have no reason to agree with the findings of the State Commission that the commercial purpose for the premises can be inferred only when some commercial activity is carried out by the complainant in the flats, after obtaining the possession of the same. It was the duty of the complainants to prove that the booking done by them was not for a commercial purpose and that, they fall within the definition of ‘Consumer’ under the Act. The appeals filed by the OP Builder, i.e., FA No. 941 to 945/2015 are, therefore, allowed. The appeals filed by the complainants, i.e., FA No. 465 to 469 / 2016 are ordered to be dismissed. As a consequence, the impugned orders passed by the State Commission are set aside and the consumer complaints no. 29 to 33 of 2012 are dismissed. There shall be no order as to costs.

Comments

Most viewed this month

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...

When debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company

In SHITAL FIBERS LTD.  vs  INDIAN ACRYLICS LIMITED, as per the respondent, appellant had made a payment of Rs.61,83,218/­. However, there was an outstanding balance of Rs.8,92,723/­ as on 28.7.2008. Since despite repeated requests, balance amount was not paid, the respondent issued a statutory notice to the appellant. The same was duly responded to. As the payment was not made despite notice being duly served on the appellant, the respondent filed the aforesaid Company Petition seeking winding up of the present appellant for its inability to pay admitted debts. The learned Company Judge vide order dated 28.9.2015 admitted the Company Petition. However, while doing so, the learned Company Judge observed, that since the appellant was an on­going concern, an opportunity should be granted to it to settle the accounts with the respondent by 31.12.2015. Only in case of failure of the settlement, the citation was directed to be published. On appeal, the Division Bench of the High Cou...

Difference Between Sale Of 'Corporate Debtor As A Going Concern' And Sale Of 'Business Of The Corporate Debtor As A Going Concern'

Citation : M.S. Viswanathan, Liquidator of Gemini Communication Limited vs Pixtronic Global Technologies Pvt. Ltd,  IA/1215/CHE/2021 in CP/699/IB/2017 Date of Judgment/Order : 15/2/22 Court/Tribunal : National Company Law Tribunal, Division Bench I, Chennai Corum : R. Sucharitha, Member (Judicial), Sameer Kakar, Member (Technical) Background Application was filed by the Liquidator under Regulation 32(e) of the IBBI (Liquidation Process) Regulations, 2016 seeking approval from the Tribunal for sale of the Corporate Debtor as a going concern. Order Allowing the application, the NCLT went into an elaborate but useful explanation of the entire law behind the term 'Going Concern'. NCLT observed that  the term 'going concern' means all such assets and the liabilities, which constitute an integral business or the Corporate Debtor, that must be transferred together, and the consideration must be for the business or the Corporate Debtor. The buyer of the assets and liabilitie...