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TMI Blog2024 (8) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... S. VERSUS DAIMLER CHRYSLER INDIA PRIVATE LIMITED AND ORS. [ 2016 (7) TMI 1700 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI] , the services availed for the personal use of the director of the company were not held to be for commercial purposes. In the case at hand, the complainant specifically mentions that the flat was being purchased for the purpose of residence of one of its Directors and his family and that the company is a family owned company. The mere fact that the respondent-company is a real estate company, it does not mean that the flat was purchased by it for commercial purpose or for resale so as to earn profits. It is the appellant who is contending that the respondent is not a consumer and as such the complaint is not maintainable, therefore, the burden lies heavily upon it to lead evidence to prove that the respondent in purchasing the flat in question is indulging in real estate business. There is no evidence on record to show that the flat so purchased by the respondent was in any way connected with the real estate business rather than for personal use of its Director and his family. There are no error or illegality in the finding of the NCDRC that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the appeal is to the judgment and order dated 23.12.2022 passed by the National Consumer Disputes Redressal Commission in short NCDRC in Consumer Complaint No.141 of 2020. NCDRC by the said judgment and order has partly allowed the complaint of the respondent and directed the appellant to refund within 2 months an amount of Rs.7,16,41,493/- (Rupees Seven Crore Sixteen Lakh Forty One Thousand Four Hundred and Ninety Three only) along with delay compensation @ 6% per annum from the respective dates of deposits till its payment, failing which the rate of interest payable would stand increased to 9% per annum. 3. The respondent is a private limited company in the business of real estate development. It booked a flat for residential use of one of its directors and his family members with the appellant on 22.09.2015 in its project Omkar 1973 Worli on payment of booking amount of Rs.51,00,000/- (Rupees Fifty One Lakh only). Subsequently, respondent paid part consideration i.e. a total of Rs.6,79,97,071/- (Rupees Six Crore Seventy Nine Lakh Ninety Seven Thousand and Seventy One only) to appellant. 4. Thereafter, the respondent was issued an Allotment Letter dated 29.06.2016 with adden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not maintainable. The allotment of the respondent was rightly cancelled as despite demand it failed to pay the balance sale consideration. The appellant had the right to advance the date of delivery of possession and that there was no stipulation that the possession would be offered to the respondent only on the receipt of full occupancy certificate. 10. Basically, two points arose before the NCDRC for adjudication. First, whether the complaint, as filed by the respondent, was maintainable inasmuch as respondent was alleged not be a consumer within the meaning of Section 2(7) of the Act. Secondly, whether there was any deficiency in service on part of the appellant or whether the appellant was justified in terminating the allotment of the respondent and forfeiting the deposits. 11. The NCDRC allowed the complaint holding the respondent to be a consumer under Section 2 (7) of the Act, relying upon the decisions of this Court in Lilavati Kirtilal Mehta Medical Trust vs. Unique Shanti Developers and Others (2020) 2 SCC 265 and Crompton Greaves Limited and Others vs. Daimler Chrysler India Private Limited 2016 SCC OnLine NCDRC 2121 . In context with the deficiency and unfair trade p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson (which would include a legal entity like a company) were for commercial purpose or not within the meaning of the Act would depend upon the facts and circumstances of each case. However, ordinarily commercial purpose is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities. The purchase of the goods should have a close and direct nexus with a profit generating activity. If it is found that the dominant purpose behind purchasing the goods was for the personal use and consumption of the purchaser and/or the beneficiary, or was otherwise not linked with other commercial activities, the question whether such a purchase was for the purpose of generating livelihood by means of selfemployment need not be looked into. In short, the dominant intention or the dominant purpose of the transaction is to be looked into to find out if it had any nexus with some kind of profit generation as part of the commercial activities. 16. In the case at hand, the complainant specifically mentions that the flat was being purchased for the purpose of residence of one of its Directors and his family and that the company is a family owned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant could not have insisted for transferring possession of the flat and could not have terminated the allotment of the respondents vide its letter dated 31.08.2017 i.e. prior to the resolution dated 17.03.2018. At the same time, the appellant instead of refunding the amount deposited by the respondents, forfeited the same vide letter dated 18.11.2017. Since the very cancellation/ termination of the allotment of the respondents in the facts and circumstances of the case is not justified, consequently the forfeiture is also bad in law. The NCDRC upon consideration of the above facts and circumstances, irrespective of the fact that the appellant may have the power to advance the date of delivery of possession of the flat allotted or offer possession on the basis of part occupancy certificate, rightly held that the appellant was guilty of adopting unfair trade practice and since there was double allotment of the flat, there was deficiency in service. 20. In the light of the above discussion, we agree with the NCDRC that the complaint of the respondents was maintainable and that since the services rendered by the appellant were held to be deficient. It has thus rightly issued direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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