AVM J. RAJENDRA, AVSM, VSM (RETD.), MEMBER 1. The two Appeals, bearing Nos. FA/669/2018 and FA/670/2018 were filed by Omaxe Chandigarh Extension Developers Pvt. Ltd & Anr (hereinafter referred to as the “Appellants”/ “Opposite Parties”) against Paramjit Singh & Abhinav Gupta. (hereinafter referred to as the “Respondents”/ “Complainants”). These appeals challenge the Orders dated 14.11.2017 in (1) CC/197/2017 and (2) CC/198/2017 respectively, which were passed by State Consumer Dispute Redressal Commission, Punjab, Chandigarh (hereinafter referred to as the “State Commission”). The State Commission had partly allowed both the Complaints. 2. Since the facts and question of law involved in both Appeals are substantially similar, except for minor variations in the dates, events and unit numbers, these Appeals are being disposed of by this common Order. Nevertheless, for ease of reference, First Appeal No. 669 of 2018 shall be considered as the lead case, and the facts outlined below are derived from Consumer Complaint No. 197/2017 3. Brief relevant facts of the case are that the Respondent/ Complainant Paramjit Singh, sought to secure his livelihood through self-employment, applied to purchase a Commercial Shop/Office, bearing No. Office-1104-A, on 11th Floor, admeasuring 706.12 square feet (hereinafter referred to as the Unit) in the Appellants/ Opposite Parties Project called “India Trade Towers, Chandigarh Extension”, situated at Mullanpur, LPA (GMADA), District SAS Nagar, Mohali Punjab. He paid Rs.3,22,299 as booking amount by cheque on 20.10.2010. 4. The Agreement-Cum-Allotment Letter (hereinafter referred to as the ‘Agreement’) was executed on 05.12.2010. Total Sale Price of the shop/office space was Rs. 35,54,196.03 inclusive of PLC, Maintenance Security, and additional cost. The payment plan opted for was Combo Plan (Plan C). As per Clause 26(a) of the said Agreement, the construction was supposed to be completed within 30 months, and possession was to be delivered by 04.06.2013. 5. Subsequently, the OPs issued addendum to allotment letter/agreement dated 07.01.2011(erroneously mentioned as 07.01.2010), wherein they promised to compensate the Complainant with Rs.15,320.37 per month upon the payment of 55% of the BSP and 50% of all additional charges (totaling Rs.16,71,314.65). Thereafter, the Respondent/Complainant made timely payment from 2010 to 2016 and paid total amount of Rs.30,78,250 which was over 95% of the total unit cost. 6. However, it was alleged that the project was not completed within the time period promised, and the OPs have not offered possession of the unit to the Complainant. Also, necessary permissions, certificates and sanctions for the project were not obtained, even though the stipulated possession date of 04.06.2013 has lapsed. Thereafter, the Respondent/ Complainant forwarded a legal notice dated 08.03.2017, which invoked no response. Being Aggrieved, the Respondent/ Complainant filed a CC No. 197 of 2017, before the State Commission, Punjab, Chandigarh with prayer as under: - (i) To refund the amount of Rs.30,78,250/- along with interest @18% p.a. from the respective dates of deposits till realization less compensation amount paid under the combo plan. ii) To pay compensation of Rs.5 lacs, on account of mental agony, physical harassment, financial loss caused to the complainant, escalation; deficiency in service, negligence and adoption of unfair trade. (iii) To pay cost of litigation to the tune of Rs.1 lac to the complainant. (iv) Or any other directions which this Hon’ble Commission may deem fit. 7. The Opposite Parties, in their written version before the State Commission, raised several preliminary objections. Firstly, they claimed that the alleged dispute should be referred to Arbitration as per clause 47(c) of the allotment letter/agreement dated 05.12.2010. Secondly, they argued that the Commission lacks territorial and pecuniary jurisdiction to hear the case. Thirdly, they contended that the Respondent/ Complainant does not fall within the definition of "Consumer" as defined under Section 2(1)(d) of the Consumer Protection Act, 1986, since the unit booked is a commercial shop/office. Lastly, the Respondent/ Complainant was accused of suppression veri (concealing the truth) and suggestio falsi (suggesting falsehood), as vital facts and documents were allegedly concealed, and referred to a judgment of the Hon'ble Supreme Court in the case of S.J.S. Business Enterprises (P) Ltd. v. State of Bihar (reported in 2004 (7) SCC 166). 8. The learned State Commission vide order dated 14.11.2017 directed as follows: - “28. In view of the findings recorded in CC No. 196 of 2017, this Complaint is also allowed and following directions to the OPs: - (i) to refund the amount of Rs.30,78,250/- along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per rule 17 of PAPRA and ii) to pay Rs.50,000/- as compensation on account of mental tension, and harassment suffered by the complainant and towards litigation expenses.” 9. Aggrieved by the Order of the State Commission, the Appellants/ OPs filed the present Appeal before this Commission with the following prayer: (a) Allow the present appeal; and (b) Set aside the final judgment and order dated 14.11.2017 passed by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, in consumer Complaint No. 197 of 2017; and (c) Pass such other and further orders as this Hon'ble Commission may deem fit and proper in the facts and circumstances of this case. 10. In the present Appeal, the Appellant mainly asserted the following: - a) The State Commission failed to consider that the Respondent (Complainant) did not provide sufficient evidence to demonstrate that the commercial shop was purchased exclusively for the purpose of earning a livelihood through self-employment. Instead, the Respondent acquired the shop for investment purposes. b) The State Commission failed to consider that, as per the amended Section 8 of the Arbitration and Conciliation [Amendment] Act, 2015, the dispute should have been referred to arbitration. c) The State Commission erred in relying on Rule 17 in conjunction with Section 6 of the Punjab Apartment and Property Regulation Act (PAPRA) for adjudicating compensation, as it was not applicable to this case. d) The State Commission failed to recognize that the Respondent had already received compensation as per the addendum to the agreement. 11. Upon notice on the Memo of Appeal, the Respondent/ Complainant have not filed any Reply/objections to the present Appeals. However, he reiterated his position that he needed a shop/office space urgently for his livelihood, and he cannot be made to wait indefinitely due to the actions of the OPs. The Complainant invested his hard-earned money and future earnings in the hope of acquiring the said office space, but he feels disappointed and helpless due to the actions of the OPs. The Complainant and other allottees collectively requested the OPs for a resolution as per the terms of Agreement, which the OPs failed to provide. Left with no alternative, they filed a Consumer Complaint before the State Commission for a refund of Rs.30,78,250/- with 18% interest from the date of deposit till the date of payment, deducting the compensation amount paid. 12. The learned Counsel for the Appellants argued that the Respondent/Complainant, having purchased a commercial unit, does not fall within the definition of a consumer, and there is no evidence to rebut this statutory presumption. Additionally, the Respondent/Complainant had agreed to pay assured return / compensation until the offer of possession and had received the assured return up to the filing of the complaint. Therefore, the Complainant cannot now seek a refund. The learned Counsel further argued that for over seven years, the compensation of Rs.15,320.37 per month as agreed was paid to him, resulting in a total payment of Rs.13,05,197 already received by him. 13. The learned Counsel for the Respondent/Complainant reiterated the facts of the complaint and relied on various judgments of the Hon'ble Supreme Court in favour of the Respondent/Complainant. He prayed for the upholding of the order passed by the State Commission on 14.11. 2017. 14. We have gone through the Original Complaint along with material placed on record and Written Submissions filed by the Parties. We have also heard the learned Counsel of both the parties and given thoughtful consideration to the arguments advanced by both the Parties. 15. As regards the objection raised by the learned Counsel for the Appellants/OPs that the Respondent/ Complainant purchased the Unit for commercial purpose, this Commission in the case of Sanjay Rastogi v. BPTP Limited & Anr (CC No. 3580 of 2017 decided on 18.06.2020), which was upheld by Hon’ble Supreme Court, has held that: “13….One, the Complainant has clarified in the very first para of his plaint that he is not buying the unit for any commercial purpose. It is for the OP to prove otherwise. Two, commercial purpose requires that the Complainant be shown to be in the business of buying and selling flats. No attempt has been made to prove this.” 16. Similar observation was made by this Commission in the case of Sai Everest Developers v. Harbans Singh Kohli, 2015 SCC OnLine NCDRC 1895 decided on 21.07.2015, in which it was held that “the Opposite Party should establish by way of documentary evidence that the Complainants were dealing in real estate or in the purchase and sale of the subject property for the purpose of making profits.” 17. At the stage of arguments before this Commission on 31.07.2023, the learned Counsel for the Appellants had asserted that the Complainant in the case was not a Consumer as he intended to acquire the property in question for commercial purpose. At the stage of booking the premises, he was in the service of the Army and, therefore, it could not have been booked for his own livelihood. 18. As against this, the learned Counsel for the Respondent clarified that at the time of booking of the commercial property, the Complainant had since retired from the Army and he needed the premises for running his clinic. Therefore, the booking of the said commercial property was for earing of his livelihood. On hearing both the parties, this Commission vide Order dated 31.07.2023, directed the Complainant to file an Affidavit indicating the specific date of his retirement from the Army and to furnish any official record in this regard. 19. In pursuance thereof, the Complainant filed an Affidavit dated 04.08.2023 inter-alia bringing out that he was commissioned in the Army on 17.12.1983 and retired on 30.04.2010. He annexed his Pension Payment Order issued by the Principal Controller of Defence Accounts (Pensions), Allahabad. He further submitted that the payment for booking of the property in dispute was made by cheque dated 20.10.2010 for an amount of Rs.3,22,299. Only thereafter the Application for booking of the property was accepted. Therefore, when the booking of the premises was done, the Complainant had already retired from the service of the Indian Army. As regards Respondents in FA 670, they intended to purchase the property in dispute for setting up the practice of their son who is a doctor. 20. In the instant Appeal, there is no evidence to the contrary filed by the Appellants to establish its case that the said Unit was purchased by the Complainant for commercial purpose. Therefore, the Complainant is a consumer in respect of the property under dispute. 21. As regards the objection in respect of jurisdiction that any dispute between the parties shall be referred to Arbitration or Civil Court, the Hon’ble Supreme Court in M/s Imperia Structures Ltd. v. Anil Patni and Another (2020) 10 SCC 783 decided on 02.11.2020 has held that “remedies under the Consumer Protection Act were in addition to the remedies available under special statutes”. Thus, this Commission is also competent to take cognizance of the matter, Also, in terms of section 3 of the act “the provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force”. 22. This Commission in Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, which was also upheld by Hon’ble Supreme court, has held that: “Arbitration Clause in the Buyer’s Agreement does not bar the jurisdiction of the Consumer Fora.” 23. It is an admitted fact that no offer of possession has been made so far by the Appellants to the Respondent until the date of filing of the complaint before the State Commission. Thus, there was deficiency in service on the part of the Appellants. Therefore, the State Commission's findings cannot be said to be illegal, unjustified, or unsupported by evidence. 24. The Appellants failed to complete the construction and deliver possession to the Respondent/ Complainant. Therefore, the Respondent is entitled to a full refund of the deposited amount. Consequently, the crucial question for consideration is determining the amount of compensation that should be awarded to the Respondent for the deficiency in service committed by the Appellants. The State Commission had awarded compensation @12% p.a. from the respective date of deposit till realization, as per Rule 17 of PAPRA. 25. The Appellants contended that they had made payments to the Complainant as part of assured returns @ Rs.15,320 per month from 30.11.2020 till 31.08.2017, as per the records filed on 14.09.2017. Subsequently, in the Appeal filed before this Commission, the Appellant had stated that for around seven years, the agreed compensation of Rs.15,320 per month was paid to the Respondent and, accordingly, the Appellant had already paid a total of Rs.13,05,197 towards compensation to the Respondent. On the other hand, the Respondent in his written submissions had brought out the liability of the Appellant to make such compensatory payment @ Rs. 15,320.27, but did not deny receiving the payments. ORDER 26. In view of the foregoing discussions, both the Appeals are disposed of with the following directions to the Appellants/ Opposite Parties, who shall, jointly and severally:- FA/669/2018 (a) Refund the amount of Rs.30,78,250/- along with interest @ 9% per annum from the respective dates of deposits, within a period of one month. In the event of delay beyond the period of one month, interest @ 12% per annum would be applicable for such additional period. From the total amount payable, the amount paid as compensation by the Appellants to the Complainant/ Respondent is liable to be deducted. (b) Pay Rs.30,000/- towards litigation expenses. FA/670/2018 (a) Refund the amount of Rs.66,07,407.05/- along with interest @ 9% per annum from the respective dates of deposits, within a period of one month. In the event of delay beyond the period of one month, interest @ 12% per annum would be applicable for such additional period. From the interest amount, the amount paid as compensation by the Appellants to the Complainant/ Respondent is liable to be deducted. (b) Pay Rs. 30,000/- towards litigation expenses. 27. All the pending Applications in both the Appeals, if any, stand disposed of. The statutory amount deposited by the Appellants be refunded to them. | 
