Burden is on Opposite Party to prove that purchase by Consumer was made with an intention to derive Commercial Gain: NCDRC

Burden is on Opposite Party to prove that purchase by Consumer was made with an intention to derive Commercial Gain: NCDRC

National Consumer Disputes Redressal Commission, in a matter disposed on November 1, reiterated that the burden is on the Opposite Party to prove that complainant had an intention of indulging further in sale/purchase of property in question OR entered into the transaction with an intention of deriving a commercial gain. [Aloke Anand v. Ireo Pvt. Ltd., Consumer Case No. 1277 of 2017]

Justice Deepa Sharma, Presiding Member and Subhash Chandra, Member, while allowing the complaint, directed,

"1. The Opposite Party shall refund the entire principal amount of Rs.22391480 to the complainant along with compensation in the form of simple interest at the rate of 10.25 % per annum, which is stated to be the interest rate under RERA, in Haryana, in respect of the cases where refund is made to the flat buyer on account of delay on the part of the developer in offering possession of the house, from the date of each payment till the date of refund.

2. Any compensation paid by the opposite party to the complainant towards delay in completion of the project as per the terms and conditions of the agreement shall be adjusted in the interest amount and the balance interest amount shall be paid to the complainant.

3. The Opposite Party shall pay sum of Rs.25000 as cost of litigation to the complainant."

Complainant had booked an apartment situated at Golf Course Extension Road, Sector 60, Gurugram and made an initial payment of Rs.1500000.

It was submitted that due date of delivery of possession was 42 months with grace period of six months from the date of approval of the building plan, however, the same was not effectuated within the stipulated period.

Hence, a complaint was lodged seeking delivery of possession along with compensation for delay.

The Opposite Party argued that subject flat was purchased not for residential purpose but for commercial purpose and since the complainant was not a consumer as per the definition under Section 2(1)(d) of Consumer Protection Act, the complaint was liable to be dismissed.

"There is no contention in the written version that the complainant is indulging in the business of sale / purchase of the properties. Since the opposite party has failed to discharge this burden, we hold that complainant is consumer within the meaning of Section 2 (1) (d) of the Act," the bench observed.

Reliance was placed on Laxmi Engineering Works v. PSG Industrial Institute, 1995 AIR 1428, Kavita Ahuja v. Shipra Estate, (2016) CPJ 131 (NC) and the decision of NCDRC in Siddharth Vashisht v. M/s Ireo Pvt. Ltd., Consumer Case No. 1062 of 2018 decided on December 6, 2019.