1.      Heard Mr. Deepak Aggarwal, Advocate, for the complainants and Mr. Pravin Bahadur, Advocate, for the opposite party.

2.      Arun Kumar Ahluwalia and Shobha Ahluwalia have filed above complaint, for directing the opposite party to (i) refund Rs.8088837/- with interest @18% per annum, from the date of respective deposit till the date of refund; (ii) pay Rs.20/- lacs, as compensation for mental agony and harassment; (iii) pay Rs.1.5 lacs, as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that DLF Universal 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/commercial projects and selling its unit to the prospective buyers. The opposite party launched a mega development project, in the name of “Hyde Park Estate”, at villages Salamatpur, Devinagar, Bharonjian and Ratwara, in local area of Mullanpur, district SAS Nagar, Punjab, consisting residential/commercial plots, independent floors, convenient shopping centre, institutional complex, school complex etc., in the year 2013 and made wide publicity of its facilities and amenities that the project would be equipped with power backup, underground electric cable network system, spacious community centres, work spaces, world class medical care, rainwater harvesting systems, lush garden parks etc. Arun Kumar Ahluwalia did his BE Electrical from PEC University, Chandigarh and thereafter BE in Marine Engineering from DMET Mumbai and employed with MSI Ship Management Company, Singapore, since 1991, presently as Technical Director. Shobha Ahluwalia (complainant-2) was a house wife. The complainants had two sons. Elder son was a lawyer and younger son was an Economist. The complainants planned to settle in India after retirement of complainant-1, which was due in the year 2017. As job of complainant-1 was non-pensionable¸ they were looking for a commercial space for doing business for the purpose of earning their livelihood by way of self-employment, after retirement. Believing upon the representations and promises of the opposite party, the complainants booked a commercial plot in above project on 17.01.2013 and deposited booking amount. The opposite party issued Allotment Letter dated 18.01.2013, allotting Commercial Plot No.HPA-R1-SCO-008, admeasuring 92.9 sq.mtrs., basic sale price @Rs.87147/- per sq.mtrs., to them in the said project. The opposite party supplied ‘Down Payment Plan’ under which total consideration of Rs.8600586.02, inclusive EDC, PLC, MSE (minus Rs.511748.95, which was payable at the time of offer of possession) was payable, till 16.02.2013 and the opposite party gave rebate of Rs.578863/-. The complainants made payment as per plan but the opposite party delayed execution of Plot Buyer’s Agreement, which was executed on 05.12.2014. Clause-11(a) of the agreement provides 24 months period from the date of application for delivery of possession. Due date of possession expired on 16.01.2015 but the opposite party failed to deliver possession. The complainants requested for refund of their money but the opposite party did not give and heed. Then this complaint was filed on 02.01.2017, alleging deficiency in service.        

4.      The opposite party has filed its written reply on 31.03.2017 and contested the matter. The opposite party stated that the complainants have deliberately concealed the material facts. The complainants also booked a residential plot and were allotted Plot No.R2-E311 on 06.12.2012. The complainants filed an application for allotment of commercial plot, on which, Commercial Plot No.HPA-R1-SCO-008 was allotted to them on 18.01.2013. The complainants opted for ‘down payment plan”, as the opposite party had offered rebate in it. Plot Buyer’s Agreement was sent to the complainants through letter dated 17.06.2013, for their signatures, which was signed by them on 23.09.2013. Due to change in layout plan, Plot No. R1-SCO-008, which was earlier allotted, was changed as Plot No.R2-SCO-037, with the consent of the complainants, vide letter dated 24.03.2014. Thereafter, a fresh Plot Buyer’s Agreement was executed on 05.12.2014. The opposite party has already developed 897 plots and 255 built up units on 85 plots and received Partial Occupation Certificate from competent authority on 10.09.2014. All public utility services are operational in the part of the project for which Partial Occupation Certificate has been obtained. The opposite party, vide letter dated 06.12.2016, offered possession to the complainants, crediting delayed compensation of Rs.206480/-, in their account, in terms of clause-14 of the agreement. Instead of depositing the balance amount and taking possession, the complainants filed this complaint. Till the offer of possession, they never demanded for refund of their money. From the conduct of the complainants, it is proved that they did not book the plot for their own use rather they invested for future gain. Preliminary issues that (i) the complainants are not ‘consumer’ as entire family of the complainants were gainfully employed and it is incorrect to say that they had booked the plot for earning livelihood by way of self-employment after retirement and (ii) Clause-52 of the agreement provides for arbitration of the dispute as such the complainants be relegated for arbitration, are raised.   

5.      The complainants have filed Rejoinder Reply, Affidavit of Evidence and Affidavit of Admission/Denial of documents of Ashok Paul Ahluwalia and documentary evidence. The opposite party has filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Shiv Kumar and documentary evidence. Both the parties filed their written synopsis.

6.      We have considered the arguments of the counsel for the parties and examined the record. Scope of the Explanation to Section 2(1)(d) of Consumer Protection Act, 1986 as well as expressions “commercial purpose” and “the purposes of earning livelihood by means of self-employment” came up for consideration before Supreme Court in relation to purchase of goods in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583. In which, it has been held that the Explanation was an exception to an exception. Expression “commercial purpose” has not been defined, as such, its dictionary meaning has to be taken into consideration. “Commerce” means financial transaction, especially buying and selling of merchandise on large scale. As in the Explanation, the purpose of earning livelihood by means of self-employment, has been excluded from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such a buyer from the purview of the “consumer” so long as it is used by the buyer or his family members or with the help of one or two other persons, for earning his livelihood. It is question of fact and has to be decided in each case independently. Supreme Court in Sunil Kohli Vs. Purearth Infrastructure Ltd. (2020) 12 SCC 235, held that if a buyer purchases a commercial property for earning his livelihood by way of self-employment, then he is not excluded from the definition of consumer. In the present case, the complainants have stated that they had planned to settle in India after retirement of complainant-1 in the year 2017. As job of complainant-1 was non-pensionable¸ they were looking for a commercial space for doing business for the purpose of earning their livelihood by way of self-employment, after retirement. There is nothing on the record to show that the complainants were purchasing and selling immovable property. After judgement of Supreme Court in Sunil Kohli’s case (supra), contrary view taken by this Commission in Punit Singh Vs. Aeren Entertainment Zone Limited, 2015 SCC OnLine NCDRC 3965, CC/402/2016 Balbir Singh Randhawa Vs. DLF Universal Limited (decided on 18.03.2016 and FA/1791/2017 DLF Universal Limited Vs. Anjani Dass (decided on 13.04.2018 are no more good law. Supreme Court in Emaar MGF Land Limited Vs. Aftab Singh, I (2019) CPJ 5 (SC) held that arbitration clause in the agreement does not exclude jurisdiction of consumer fora.

7.      Although earlier Plot Buyer’s Agreement was executed on 23.09.2013 but after change of the plot a fresh agreement was executed on 05.12.2014, which admitted to both the parties, as such, non-discloser of agreement dated 23.09.2013, is not a concealment of material fact. Clause-11(a) of the Plot Buyer’s Agreement dated 05.12.2014 provides 24 months period from the date of application for delivery of possession. The complainants moved application for allotment of commercial plot on 17.01.2013 as such due date of possession expired on 16.01.2015 but the opposite party offered possession on 06.12.2016. Although there is delay in offer of possession but there is nothing on record to show that the complainants cancelled the agreement on account of delay and requested for refund of their money before offer of possession. If the complainants waited for possession till offer of possession then filing of the complaint for refund after offer of possession is not justified. Their earnest money is liable to be forfeited under clause-50 (iii) of the agreement.

8.      The complainants argued that even on 06.12.2016, there was no ‘occupancy certificate” as such offer of possession was not legally valid. The counsel for the opposite party has relied upon Notification No.18/60/16-5hg2/878870/1 dated 17.11.2016, issued by Government of Punjab, Department of Housing and Urban Development, by which, part of the project land was exempted from operation of Punjab Apartment & Property Regulation Act, 1995, except Section 5(9) and Section 32 and submitted that “occupation certificate” is not compulsory for the opposite party. Partial “occupation certificate” has been obtained on 10.09.2014. The complaint has not been filed on this ground.

9.      Supreme Court, in Maula Bux Vs. Union of India, (1970) 1 SCR 928 and Sirdar K.B. Ram Chandra Raj Urs Vs. Sarah C. Urs, (2015) 4 SCC 136, held that forfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of Section-74 of Contract Act, 1872 are attracted and the party so forfeiting must prove actual damage. After cancellation of allotment, the flat remains with the developer as such there is hardly any actual damage. This Commission in CC/438/2019 Ramesh Malhotra Vs.EMAAR MGF Land Ltd. (decided on 29.06.2020), CC/3328/2017 Mrs. Prerana Banerjee Vs. Puri Construction Ltd. (decided on 07.02.2022) and CC/730/2017 Mr. Saurav Sanyal Vs. M/s. IREO Grace Pvt. Ltd. (decided on 13.04.2022) held that 10% of basic sale price is reasonable amount to be forfeited as “earnest money”.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of payment, after deducting 10% of basic sale consideration, within a period of two months from date of this judgment.