Vol. VII OMKAR REALTORS & DEVELOPERS PVT. LTD. v.

KUSHALRAJ LAND DEVELOPERS 193

Magistrate; secondly, respondent belatedly filed balance sale consideration — Cancellation of

an appeal before the Appellate Court which was allotment — Amount forfeited — Deficiency
dismissed and thirdly, when that appeal was in service — Unfair trade practice — Since
dismissed on the ground of delay, he did not the very cancellation/termination of
choose to assail the said order before a higher allotment of respondents in the facts and
forum. circumstances of the case is not justified,
19. In the circumstances, the orders of the consequently forfeiture is also bad in law —
High Court as well as the first Appellate Court NCDRC upon consideration of facts and
are set aside and the application filed by the circumstances, irrespective of the fact that
respondent is dismissed. However, liberty is appellant may have the power to advance
reserved to the respondent herein to file a fresh date of delivery of possession of flat allotted
application under Section 25 of the Act, if so or offer possession on the basis of part
advised. If such an application is filed by the occupancy certificate, rightly held that
respondent, the same shall be considered by the appellant was guilty of adopting unfair trade
learned Magistrate having regard to the practice and since there was double
observations made above and on its own merits, allotment of the flat, there was deficiency in
which can be relatable to the period subsequent service — It has rightly issued directions to
to the date of making the earlier order dated refund forfeited amount of Rs. 7,16,41,493/-
23.02.2015 in the instant case. Any revocation of along with delay compensation @6% per
the order dated 23.02.2015 could be with effect annum — Directions issued. [Paras 19, 20]

from the date of the application, if any, to be (ii) Consumer Protection Act, 2019 —
made by the respondent herein or as ordered by Sections 2(7), 67 — Consumer — Cancellation
the learned Magistrate. of allotment — Amount forfeited —
20. This appeal is allowed and disposed of Commercial purpose alleged — Complainant
in the aforesaid terms. specifically mentions that flat was being
purchased for purpose of residence of one of
Pending application(s), if any, shall stand its Directors and his family and that the
disposed of. company is a family owned company —Mere
Appeal allowed — High Court fact that the respondent-company is a real
judgment reversed. estate company, it does not mean that flat was
purchased by it for commercial purpose or for
resale so as to earn profits —There is no
VII (2024) SLT 193
evidence on record to show that flat so
SUPREME COURT OF INDIA purchased by respondent was in any way
Pamidighantam Sri Narasimha, J. & Pankaj connected with real estate business rather
Mithal, J. than for personal use of its Director and his
family — Complainant is consumer.
OMKAR REALTORS AND DEVELOPERS [Paras 16, 17]
PVT. LTD. —Appellants
Result: Appeal dismissed.
versus
Cases referred:
KUSHALRAJ LAND DEVELOPERS PVT.
1. Lilavati Kirtilal Mehta Medical Trust v. Unique
LTD. & ANR. —Respondents Shanti Developers and Others, IV (2019) CPJ 65
Civil Appeal No. 858 of 2023—Decided on 23.8.2024 (SC)=I (2020) SLT 102. (Relied) [Para 11]
2. Crompton Greaves Limited and Others v. Daimler
(i) Consumer Protection Act, 2019 —
Chrysler India Private Limited, IV (2016) CPJ 469
Section 67 — Housing — Booking of (NC). (Relied) [Para 11]
residential flat — Default in payment of 3. Daimler Chrysler India Pvt. Ltd. v. M/s Controls &

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194 SUPREME LAWS TODAY (Oct.) 2024

Switchgear Company Ltd. & Anr., III (2024) CPJ 33 quarter of 2017. On the basis of the part occupancy
(SC)=V (2024) SLT 485. (Relied) [Para 15]
certificate received by appellant on 07.03.2017
4. National Insurance Company Ltd. v. Harsolia from Slum Rehabilitation Authority, the
Motors and Ors., II (2023) CPJ 33 (SC)=III (2023) SLT
respondent was asked to take possession of the
536. (Relied) [Para 15]
allotted flat immediately and was directed to pay
JUDGMENT the balance amount of Rs. 28,87,80,526/- (Rupees
Pankaj Mithal, J.—This is a statutory appeal Twenty Eight Crores Eighty Seven Lakhs Eighty
under Section 67 of the Consumer Protection Thousand Five Hundred Twenty Six only) within
Act, 2019 [hereinafter referred to as 'the Act']. 30 days.
2. The challenge in the appeal is to the 6. The respondent tried to arrange necessary
judgment and order dated 23.12.2022 passed by finance for the purpose through financial
the National Consumer Disputes Redressal institutions but failed. The respondent, through
Commission [in short 'NCDRC'] in Consumer the correspondence with the financial institutions,
Complaint No. 141 of 2020. NCDRC by the said came to know that the flat allotted to him, is
judgment and order has partly allowed the already reserved/allotted to one Mr. Nakul Arya.
complaint of the respondent and directed the The respondent on 18.03.2017, probably for want
appellant to refund within 2 months an amount of arrangement of necessary funds, part
of Rs. 7,16,41,493/- (Rupees Seven Crore Sixteen occupancy certificate and due to the allotment of
Lakh Forty One Thousand Four Hundred and the said flat to one another person, declined to
Ninety Three only) along with delay take possession and to pay the balance amount as
compensation @ 6% per annum from the required by the appellant. The appellant, thus,
respective dates of deposits till its payment, failing cancelled the booking/allotment of the
which the rate of interest payable would stand respondent vide Termination Letter dated
increased to 9% per annum. 31.08.2017.
3. The respondent is a private limited 7. The respondent, thus, issued a letter dated
company in the business of real estate 22.09.2017 seeking refund of the entire amount of
development. It booked a flat for residential use Rs. 7,16,41,493/- (Rupees Seven Crore Sixteen
of one of its directors and his family members Lakh Forty One Thousand Four Hundred and
with the appellant on 22.09.2015 in its project Ninety Three only) along with interest. The
'Omkar 1973 Worli' on payment of booking appellant, instead of refunding the amount, vide
amount of Rs. 51,00,000/- (Rupees Fifty One letter dated 18.11.2017 forfeited the amount
Lakh only). Subsequently, respondent paid part deposited by the respondent.
consideration i.e. a total of Rs. 6,79,97,071/- 8. In the above background, the respondent
(Rupees Six Crore Seventy Nine Lakh Ninety approached the NCDRC complaining about the
Seven Thousand and Seventy One only) to deficiency in services and of adopting unfair
appellant. trade practices with the prayer to refund the
4. Thereafter, the respondent was issued an entire amount deposited by it with 18% interest
Allotment Letter dated 29.06.2016 with addenda along with litigation expenses and compensation
dated 30.06.2016 whereby Flat No. 5001, 50th for mental harassment and torture.
Floor, Tower-B of the said project was allotted to 9. The appellant contested the complaint by
it on a total sale consideration of Rs. 34,50,00,000/ filing its written reply alleging that the respondent
- (Rupees Thirty Four Crore Fifty Lakh only). The is not a consumer within the purview of Section
date of possession was mentioned as latest by 2 (7) of the Act. It alleged that since respondent is
31.12.2018 in the letter of allotment. a real estate development company and that it
5. The appellant on 08.03.2017 advanced had purchased the flat for commercial purpose,
the date of possession from 31.12.2018 to the first therefore, the complaint is not maintainable. The
allotment of the respondent was rightly cancelled
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Vol. VII OMKAR REALTORS & DEVELOPERS PVT. LTD. v. KUSHALRAJ LAND DEVELOPERS 195

as despite demand it failed to pay the balance other relevant documents relied upon by the
sale consideration. The appellant had the right to parties.
advance the date of delivery of possession and 13. The first issue regarding the
that there was no stipulation that the possession maintainability of the complaint of the
would be offered to the respondent only on the respondent-claimant on the plea that it is not a
receipt of full occupancy certificate. consumer, is no longer res integra. It is more or
10. Basically, two points arose before the less covered by the two decisions which have
NCDRC for adjudication. First, whether the been relied upon by the NCDRC. In Lilavati case
complaint, as filed by the respondent, was (supra), the Medical Trust that had purchased
maintainable inasmuch as respondent was houses for the nurses was held to be a 'consumer'
alleged not be a 'consumer' within the meaning under the Act and its action in purchasing the
of Section 2(7) of the Act. Secondly, whether houses was not held to be a commercial activity.
there was any deficiency in service on part of the In Crompton Greaves case (supra), the services
appellant or whether the appellant was justified availed for the personal use of the director of the
in terminating the allotment of the respondent company were not held to be for commercial
and forfeiting the deposits. purposes.
11. The NCDRC allowed the complaint 14. Section 2 (7) of the Act defines
holding the respondent to be a 'consumer' under "consumer" to mean any person who buys any
Section 2 (7) of the Act, relying upon the decisions goods for a consideration but does not include a
of this Court in Lilavati Kirtilal Mehta Medical person who obtains such goods for resale or for
Trust v. Unique Shanti Developers & Ors., IV any commercial purpose. Therefore, purchase
(2019) CPJ 65 (SC)=I (2020) SLT 102=(2020) 2 SCC and sale of goods for resale or for commercial
265 and Crompton Greaves Limited & Ors. v. purpose is excluded from the purview of the
Daimler Chrysler India Pvt. Ltd., IV (2016) CPJ definition of "consumer".
469 (NC)=2016 SCC OnLine NCDRC 2121. In 15. In a very recent decision of this Court in
context with the deficiency and unfair trade M/s. Daimler Chrysler India Pvt. Ltd. v. M/s.
practice, if any, adopted by the appellant, NCDRC Controls & Switchgear Company Ltd. & Anr., III
opined that the appellant had created confusion (2024) CPJ 33 (SC)=V (2024) SLT 485=Civil Appeal
by double allotment of the flat in question. It was No. 353 of 2008 decided on 09.07.2024 wherein
first allotted to one Nakul Arya on 10.04.2013 one of us (Hon'ble P. Mithal, J.) was a member,
and then to the respondent on 29/30.06.2016. this Court after considering all earlier decisions
The controversy with regard to the aforesaid on the subject including Lilavati Kirtilal Mehta
double allotment was resolved by the rectification Medical Trust (supra) and National Insurance
deed executed on 17.03.2018. Therefore, the Company Ltd. v. Harsolia Motors & Ors., II
NCDRC held that the appellant was not justified (2023) CPJ 33 (SC)=III (2023) SLT 536=(2023) 8
in cancelling the booking/allotment of the SCC 362, ruled that in sum and substance to
respondent and forfeiting the amount deposited determine whether the goods purchased by a
by respondent before resolving the controversy person (which would include a legal entity like a
of double allotment. Thus, it was held that there company) were for commercial purpose or not
was deficiency in service on the part of appellant. within the meaning of the Act would depend
12. We have heard Shri Vinay Navare, upon the facts and circumstances of each case.
learned Senior Counsel for the appellant and However, ordinarily "commercial purpose" is
Smt. Malvika Kapila, learned Counsel for the understood to include manufacturing/industrial
respondent and have perused the impugned activity or business-to-business transactions
judgment and order of the NCDRC as well as the between commercial entities. The purchase of
the goods should have a close and direct nexus

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196 SUPREME LAWS TODAY (Oct.) 2024

with a profit generating activity. If it is found that 19. Undisputedly, the flat in question was
the dominant purpose behind purchasing the allotted in favour of the respondent vide letter
goods was for the personal use and consumption dated 29.06.2016 with an addendum dated
of the purchaser and/or the beneficiary, or was 30.06.2016. The delivery of possession was
otherwise not linked with other commercial notified by the appellant as latest by 31.12.2018
activities, the question whether such a purchase but was advanced to the first quarter of 2017.
was for the purpose of "generating livelihood by Thus, in order to make finance arrangements,
means of selfemployment" need not be looked respondent entered into negotiation with the
into. In short, the dominant intention or the finance company whereupon it was revealed
dominant purpose of the transaction is to be that the said flat stood already reserved/allotted
looked into to find out if it had any nexus with in favour of one Mr. Nakul Arya. The aforesaid
some kind of profit generation as part of the fact of reservation/allotment of the flat in favour
commercial activities. of Mr. Nakul Arya is not in dispute. The
16. In the case at hand, the complainant explanation is that the flat allotted to the
specifically mentions that the flat was being respondent and Mr. Nakul Arya were different
purchased for the purpose of residence of one of but there was confusion with regard to the
its Directors and his family and that the company number of the flat allotted to each one of them.
is a family owned company. The mere fact that This confusion with regard to double allotment
the respondent-company is a real estate company, of the flat persisted till it was resolved by the
it does not mean that the flat was purchased by it appellant as per the deed of rectification dated
for commercial purpose or for resale so as to earn 17.03.2018. It means that the confusion of double
profits. It is the appellant who is contending that allotment of the flat notwithstanding some
the respondent is not a consumer and as such the litigation in Court prevailed and was finally
complaint is not maintainable, therefore, the resolved on 17.03.2018. In this view of the matter,
burden lies heavily upon it to lead evidence to the appellant could not have insisted for
prove that the respondent in purchasing the flat transferring possession of the flat and could not
in question is indulging in real estate business. have terminated the allotment of the respondents
There is no evidence on record to show that the vide its letter dated 31.08.2017 i.e. prior to the
flat so purchased by the respondent was in any resolution dated 17.03.2018. At the same time,
way connected with the real estate business rather the appellant instead of refunding the amount
than for personal use of its Director and his deposited by the respondents, forfeited the same
family. vide letter dated 18.11.2017. Since the very
cancellation/ termination of the allotment of the
17. In view of the aforesaid facts and respondents in the facts and circumstances of the
circumstances of the case and the law as has been case is not justified, consequently the forfeiture is
culled out above, we do not find any error or also bad in law. The NCDRC upon consideration
illegality in the finding of the NCDRC that the of the above facts and circumstances, irrespective
purchase of the aforesaid flat was for personal of the fact that the appellant may have the power
use and not as part of the commercial activity to advance the date of delivery of possession of
and as such the complaint filed by the respondent the flat allotted or offer possession on the basis of
was maintainable. part occupancy certificate, rightly held that the
18. The second issue is regarding deficiency appellant was guilty of adopting unfair trade
in service or unfair trade practice on part of the practice and since there was double allotment of
appellant in the matter of allotment of the flat in the flat, there was deficiency in service.
question in favour of the respondent and in its 20. In the light of the above discussion, we
cancellation resulting in the forfeiture of the agree with the NCDRC that the complaint of the
amount deposited. respondents was maintainable and that since the

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Vol. VII SHOOR SINGH & ANR. v. STATE OF UTTARAKHAND 197

services rendered by the appellant were held to resulting in their daughter’s unnatural death
be deficient. It has thus rightly issued directions — No independent witness of vicinity was
to refund the forfeited amount of Rs. 7,16,41,493/ examined — Presence of accused in the
- along with the delay compensation @ 6% per house at the time of occurrence is not proved
annum from the date of deposit till refund within — Once all the necessary ingredients of
two months, failing which the interest would be dowry death have not been proved beyond
payable @ 9% per annum. reasonable doubt, presumption under
21. The appellant is directed to refund a Section 113-B of Evidence Act would not be
sum of Rs. 3,00,00,000/- (Rupees Three Crore available to prosecution — Appellants are
only) out of the total amount, as directed to be entitled to be acquitted of the charge of
refunded, within a period of two weeks from offences punishable under Section 304-B and
today and the balance be refunded on or before 498-A IPC. [Paras 15 to 19]

31st December, 2024 either in lump sum or in (ii) Distinction — Admissibility and
piecemeal, failing which it will be open for the Acceptability/reliability of Evidence —
Collector concerned to recover the entire amount Merely because a piece of evidence is
as arrears of land revenue. admissible does not mean that it must be
22. The present appeal thus lacks merit and accepted — Before accepting the evidence to
is dismissed with no order as to costs. hold that the fact in issue stands proved
beyond reasonable doubt, Court must
Appeal dismissed. evaluate the same against the weight of
surrounding circumstances and other facts
VII (2024) SLT 197 proven on record. [Para 16]
Result: Appeal allowed — High Court judgment
SUPREME COURT OF INDIA
reversed.
J.B. Pardiwala, J. & Manoj Misra, J.
JUDGMENT
SHOOR SINGH & ANR. —Appellants
versus Manoj Misra, J.—This appeal is against the
judgment and order of the High Court [The High
STATE OF UTTARAKHAND Court of Uttarakhand at Nainital] dated 26.04.2012,
—Respondent whereby, while affirming the conviction of the
Criminal Appeal No. 249 of 2013—Decided on appellants under Sections 304-B and 498-A IPC
20.9.2024 [Indian Penal Code, 1860], the appeal [Criminal
(i) Indian Penal Code, 1860 — Sections Appeal No. 87 of 2010] of the appellants was partly
304-B, 498A — Dowry Prohibition Act, 1961 allowed thereby reducing the sentence awarded
— Sections 3, 4 — Evidence Act, 1872 — by the Trial Court [Sessions Judge, Pauri Gharwal]
Section 113-B — Dowry death — Cruelty — from 10 years to 7 years R.I. under Section 304-B
Deceased was married to the son of IPC and maintaining the sentence of 1 year R.I.
appellants within seven years of her death — under Section 498-A IPC.
Just 18 days before her death, deceased had FACTUAL MATRIX
given birth to a male child — There is no 2. The appellants are father-in-law and
evidence that any of accused demanded mother-in-law, respectively, of the deceased
dowry, or a motorcycle, or cash from family (Neelam), who was daughter of Shanker Singh
members of deceased either before marriage (PW-1) and Sarojini Devi (PW-2). The deceased
or at the time of marriage — Testimonies of was married to appellants' son Jitendra Singh
PW-1 and PW-2 would not be hit by the rule (coaccused) on 1.03.2006. On 30.12.2006, deceased
against hearsay evidence because it related to gave birth to a male child. Naming ceremony of
one of the circumstances of the transaction