1.      Heard Mr. Amarjeet Singh, Advocate, for the complainants and Mr. Prabhat Ranjan, Advocate, for the opposite party.

2.      Mrs. Sangeeta Oberoi and Mr. Rajiv Oberoi have filed above complaint, for directing the opposite party to pay (i) compensation by way of interest @18% per annum on their deposits, from the date of respective deposit till 04.10.2016, (ii) Rs.500000/- as compensation for deficiency in service, (iii) Rs.500000/-, as  compensation for mental agony and harassment, (iv) Rs.100000/-, as cost of the litigation, (v) compensation under Section 14 (hb) of the Consumer Protection Act, 1986, for unfair trade practice; and (vi) any other relief which may be deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that DLF Universal Limited (previously named as DLF India Limited) (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “Hyde Park Estate” at villages Salamatpur, Devinagar, Bharonjian and Ratwara, in local area of Mullanpur, district SAS Nagar, Punjab in the year 2012 and made wide publicity of its facilities and amenities. Believing upon the representations and promises of the opposite party, the complainants, who were in need of residence, booked an independent floor on 06.02.2013 and deposited booking amount Rs.600000/-. The opposite party allotted independent floor, bearing no. HPE-R1-F-505, Second Floor, specific area 1599 sq.ft., saleable area 1882 sq.ft., total sale price Rs.6441145/- to the complainants and executed Independent Floor Buyer’s Agreement in their favour on 30.09.2013. Clause-11(a) of the agreement provides 30 months period from the date of application, for completion of construction. Clause-14 provides that the company shall pay compensation @Rs.10/- per sq.ft. per month on saleable area, for the period of delay beyond 30 months. Payment plan was “down payment plan”, under which down payment rebate was also provided. Under this plan, Rs.6122609/- was payable on or before 08.03.2013 and balance amount of Rs.352875/- was payable on offer of possession. The complainants made timely payment as per payment plan and taxes as per demand and total Rs.7143643/- was paid. The opposite party offered possession to the complainants vide letter dated 15.02.2016, raising further demand of Rs.2107643/- + Rs.104995/-. On the instruction of complainant-2, his brother inspected the floor and found various deficiencies in construction, which was communicated to the opposite party on 09.03.2016. The complainants protested the demand of escalation charges and other charges and for providing less delay compensation. The complainants took possession on 04.10.2016, after removal of deficiencies. The complainants stated that due date of possession was August, 2015. The opposite party gave news in newspapers that possession would be handed over till the end of 2014. Complanant-1 was residing in Sweden, from where she came to India for sale deed, which was scheduled to be executed in November, 2016 but the sale deed was not executed and she had to go back. In the agreement, total sale price Rs.6541145/- was mentioned but the opposite party took Rs.9355000/-, which is unfair trade practice. The complaint was filed on 06.03.2018, alleging unfair trade practice and deficiency in service.        

4.      The opposite party filed its written reply on 21.05.2018 and contested the matter. The opposite party did not dispute, booking of the floor, allotment of the floor, deposits made by the complainants, offer of possession vide letter dated 15.02.2016, handing over possession on 04.11.2016 and execution of conveyance deed on 24.02.2017. The opposite party took plea that after taking possession, the complainants no more remained consumers of the opposite party. Complainant-1 was NRI, complainant-2 was a business man and both of them had residential house No.163, Sector-10, Panchkula, they booked the present floor for commercial purpose and they are not consumers and their complaint was not maintainable. Possession was taken on 04.11.2016 and the complaint was filed on 06.03.2018, which is an afterthought, belated and has been filed malafide to extract money in illegal manner. After execution of final title deed, there was no cause of action for filing the complaint. The agreement contained an arbitration clause as such, the complainant be relegated to go before Arbitrator. Total value of the floor was Rs.6616254/-, the complaint does not fall within the pecuniary jurisdiction of this Commission. The complaint is liable to be dismissed on preliminary issues. Final demand notice was in accordance of the agreement dated 30.09.2013. The complainants are bound with the terms of the agreement and cannot be allowed to challenge it after about 5 years of its execution as two years limitation has been provided under Section 24-A of the Consumer Protection Act, 1986. The agreement is a composite document and some of the clauses cannot be enforced ignoring other clauses. 30 months period as proved in clause-11(a) of the agreement was subject to timely payments and force majeure reasons. The complainants committed delay of 47 days in paying instalment, payable up to 08.03.2013 and 202 days in paying final demand, payable up to 15.03.2016. Publication of news in newspaper published on 13.01.2014, was an information regarding endeavour made by the opposite party for completing construction. The opposite party completed construction and applied for issue of “occupation certificate”, which was issued on 23.11.2015 and possession was offered vide letter dated 15.02.2016. Apart from basic sale price, other charges, which were realised from the complainants were disclosed under Clauses-1.13, 1.13 and 1.16 of the agreement dated 30.09.2013 and agreed between the parties. The opposite party has not committed any unfair trade practice. The complainants were not entitled for compensation under Section 14 (hb) of the Consumer Protection Act, 1986. The complaint is liable to be dismissed.        

5.      The complainants filed Rejoinder Reply, Affidavit of Evidence and Affidavit of Admission/Denial of documents of Mrs. Sangeeta Oberoi (complainant-1). The opposite party filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Shiv Kumar.             

6.      We have considered the arguments of the parties and examined the record. The preliminary issues raised by the opposite party have no substance. For excluding a buyer from the definition of ‘consumer’ as defined under Consumer Protection Act, 1986, it is required to be proved that goods was bought or service was availed for ‘commercial purpose’. Number of flats/houses owned or booked by the buyer is not decisive as held by Supreme Court in Lilavati KirtilaL Mehta Medical Trust Vs. Unique Shanti Developers, (2020) 2 SCC 265. In the present case the opposite party has not adduced any evidence that the floor was booked for commercial purpose. Supreme Court in Wg. Camdr. Arifur Rahman Khan Vs. DLF Southern Theme Pvt. Ltd. (2020) 16 SCC 512 held that even after taking possession and execution of conveyance deed, the consumer remained a consumer. In Emaar MGF Land Limited Vs. Aftab Singh, (2019) I CPJ 5 (SC), Supreme Court held that arbitration clause does not exclude the jurisdiction of consumer fora. Value of floor and compensation claimed in the complaint exceed Rs. one crore as such the complaint falls within pecuniary jurisdiction of this Commission.   

7.      Clause-11(a) of the agreement provides 30 months period from the date of application, for completion of construction. Date of application is 06.02.2013 as such 30 months period expired on 06.08.2015. The complainants committed delay of 47 days in paying instalment, payable up to 08.03.2013, as such, 47 days are liable to extended and due date of possession would be 11.09.2015. The possession was offered on 15.02.2016 as such there was delay of 156 days in offer of possession. Clause-14 provides that the company shall pay compensation @Rs.10/- per sq.ft. per month on saleable area, for the period of delay beyond 30 months. As such the complainants are entitled for compensation for delay in possession for a period of 126 days. So far as delay occurred after offer of possession, is concerned, the complainants committed delay of 202 days in paying the demand as such, they are not entitled for any compensation after 15.02.2016, irrespective of the fact that there were some deficiency in construction as final finishing work is always done by the builder after deposit of amount of final demand. The complainants are entitled for delayed compensation in form of interest @6% per annum on their deposit for a period of 126 days, as prescribed in Wg. Camdr. Arifur Rahman Khan Vs. DLF Southern Theme Pvt. Ltd. (2020) 16 SCC 512.

8.      The complainants in their email dated 09.03.2016 protested the demand of escalation charges and other charges but in the complaint, no prayer in this respect is made. The final demand was as per terms and condition of the agreement. The complainants could not prove any unfair trade practice adopted by the opposite party.

ORDER

In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to pay delayed compensation for a period of 126 days in the form of interest @6% per annum on deposit of the complainants after adjusting the amount already paid in this head, within a period of two months from the date of this judgment.