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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.

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