For the Appellants            Mr Kapil Kher, Advocate  

For the Respondent          Mr Anshuman Mehrotra, Advocate and

                                     Ms Riya Tandon, Advocate

ORDER

PER SUBHASH CHANDRA

1.      This appeal under Section 51 read with Section 58  of the Consumer Protection Act, 2019 (in short, the ‘Act’) challenges the order dated 06.09.2022 of the State Consumer Dispute Redressal Commission, Uttar Pradesh, Lucknow (in short, the ‘State Commission’) in consumer complaint no. 45 of 2022 allowing the complaint and directing refund of the amount of Rs 27,81,324/- deposited by the complainant/respondent herein with compensation as interest @ 10% p.a. from the date of deposits till payment along with Rs 2,50,000/- towards rent and monetary loss, Rs 2,00,000/- towards rent paid, Rs 1,00,000/- for mental agony and Rs 25,000/- as legal expenses within 30 days of the order. This order is impugned before us praying to set aside the order and for order(s) as deemed fit and proper in the facts and circumstances of the case.

2.     As per the report of the Registry there is a delay of 12 days in filing the appeal. The same is condoned in the interest of justice. 

3.      The relevant facts of the case, in brief, are that the Respondent booked Row House No. 17, Block Kaveri, “Jeevan Sukh”, Bareilly, a project developed and executed by the Appellant on 17.04.2018 for a sale consideration of Rs 29,07,982/-. An Agreement to Sell was executed between the parties on 18.04.2018. Construction was promised to be completed by June, 2020 subject to force majeure circumstances. Respondent paid Rs 27,66,122/- for which he obtained a loan from ICICI Bank. Despite payment of 95% of the consideration, the Respondent alleges that the Appellant stopped the project in 2019 and has neither re-commenced the project nor provided any assurance of its completion. Alleging unfair trade practice the Respondent filed a complaint before the State Commission which was disposed of on contest by way of the impugned order.

4.      The impugned order is assailed on the grounds that (i) the State Commission failed to consider the evidence on record and appreciate the facts; (ii) Respondents concealed and manipulated material facts before the State Commission; (iii) the  Respondent is not a “consumer” under the Act since he has houses in Bareilly and Lucknow; (iv) the dispute in the complaint involves complicated questions of law that need adjudication by a Civil Court as per the terms of the Agreement; (v) the territorial jurisdiction of the State Commission is barred as per “Ouster Clause” of the Agreement; (vi) the complaint is barred by limitation as it was filed after two years from the date of cause of action; (vii) there was no privity of contract between the Respondent and Appellants 2 and 3; (viii) the Agreement provided for compensation for delay in offer of possession; (ix) the date of offer of possession was subject to force majeure circumstances and had been completed as per the Advocate Commissioner’s report except for minor issues; (x) the State Commission erred in holding that there was a continuous cause of action; (xi) the Agreement was to be read as a whole which the State Commission failed to do; (xii) compensation was erroneously awarded by concluding there was deficiency in service and unfair trade practice and the judgments relied upon were not applicable; (xiii) the respondent had already approached UP RERA and hence the State Commission lacked jurisdiction; (xiv) the conclusion that the basic amenities were lacking and had shortcomings were generic and without basis and it was incorrectly recorded that the Appellant did not object to the Advocate Commissioner’s report and (xv) the relief awarded had been calculated without any basis.

5.      Learned Counsel for the Appellant submitted essentially on the lines of the Appeal during oral submissions. It was also submitted that the State Commission had wrongly exercised jurisdiction since the amount paid was less than Rs 50 lakhs and therefore the matter should have been considered by the District Forum. Reliance was placed on this Commission’s judgment in Anita Sharma vs ICICI Lombard General Insurance Co. Ltd. & Ors., FA No. 969 of 2022 dated 20.02.2023 wherein in an insurance matter it was held that since the premium paid for a policy of Rs 50 lakhs was much less, the State Commission did not have pecuniary jurisdiction. Reliance was also placed on this Commission’s judgment in Pyaridevi Chabiraj Steels Pvt. Ltd. Vs. National Insurance Company Ltd. in CC No. 833 of 2020 dated 28.08.2020 wherein also the premium paid was considered to be the consideration paid even though the policy sum assured was higher.

6.      Per contra, learned counsel for the Respondent contended that the Appellant’s averment that the Respondent was not a ‘consumer’ under the Act was not supported by evidence on record and as required as per this Commission’s judgments in Aloke Anand Vs. M/s Ireo Pvt. Ltd & 2 Ors., CC 1277 of 2017 dated 01.11.2021 and Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd., 1 (2016) CPJ 131 NC the onus of proof had not been discharged by the Appellant to establish that the complainant/Respondent was indulging in commercial activities of sale and purchase of flats with the intention of sale for profit. It was denied that Respondent had filed a case with UP RERA since it had only approached it for conciliation which did not fructify. Reliance was placed on the law laid down by the Hon’ble Supreme Court in M/s Imperia Structures Ltd. Vs. Anil Patni and Anr., (2020) 10 SCC 783 decided on 02.11.2020 and in Ireo Grace Realtech Pvt. Ltd., vs Abhishek Khanna and Others, in Civil Appeal no.5785 of 2019 decided on 11.01.2021, to argue that the remedies under the RERA Act, 2016 and the Consumer Protection Act, 2019 were concurrent remedies operating without primacy which could be availed by the consumer and it was contended that the same had also been held by the Apex Court in Pioneer Urban Land Infrastructure Ltd. Vs. Union of India & Ors., Writ Petition 43 of 2019 decided on 09.08.2019 and Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, C.A. No. 6044 of 2019 decided on 07.04.2022.  It is contended that Clause 7.1 of the Agreement made time the essence of the contract and no force majeure conditions had been clearly established to warrant consideration of the same. Appellants 2 and 3 were designated partners in the LLP with Appellant No. 1 and were therefore necessary parties. It was argued that the State Commission had considered all the evidence before it and it was misconceived on part of the Appellant to contend that the impugned order only relied upon the Advocate Commissioner’s report. It was denied that the Respondent did not suffer financial hardship and mental agony.

7.      We have heard the learned counsel for the parties and perused the material on record.

8.      The preliminary issues of maintainability of the complaint on grounds of pecuniary jurisdiction, limitation, whether complainant/Respondent is a ‘consumer’, and jurisdiction in view of having approached UP RERA and there being complicated questions of facts involved are addressed at the outset. In view of the judgment of this Commission in Ambrish Kumar Shukla and 21 Ors. vs Ferrous Infrastructure Pvt., Ltd., I 2017 CPJ 1 (NC) and Renu Singh vs Experion Developers Pvt., Ltd., CC no.1703 of 2018 pecuniary jurisdiction is to be determined on the basis of the aggregate of the claims. In view of the prayer of the Respondent before the State Commission in the consumer complaint filed before it, the State Commission was justified in entertaining the complaint as the claim of Rs.56,18,942/- was within its financial jurisdiction. As regards the issue of limitation, it is an admitted fact that there has been no offer of possession to the Respondent by the Appellant. The Advocate Commissioner’s report also points out that the project is incomplete. Hence the cause of action is clearly a continuing cause and the Respondent was entirely justified in approaching the State Commission and the State Commission in adjudicating the issue. In so far as the issue of whether the Respondent was a ‘consumer’ under Section 2(1)(d) of the Act, we find no reason to disagree with the Respondent’s reliance on this Commission’s judgments in Aloke Anand (supra) and Kavita Ahuja (supra) as per which the onus of proving that the booking of the house was for a “commercial purpose” lay squarely upon the Appellants which had not been discharged. The decision of the State Commission to consider the Respondent a ‘consumer’ under Section 2(1)(d) can therefore not be found fault with for this reason. As regards the issue of there being complicated questions of fact necessitating trial in a civil court, it is evident that the facts of the instant case pertain essentially to an appreciation of the facts of a construction agreement which do not present any complicated issues. The State Commission which has judicial members has correctly proceeded to adjudicate the same. Finally, as for the ground taken that in view of having approached UP RERA, the Respondent was estopped from approaching the State Commission, it is well established that the remedies under the Consumer Protection Act are in addition to and not in derogation of remedies under other Acts. As for the ground taken regarding misjoinder of parties, Appellants 2 and 3 are clearly members of the LLP and therefore are necessary parties. The preliminary grounds of challenge to the State Commission’s order are therefore found to be without merits.

9.      On merits, the Appellant’s contention of the applicability of force majeure conditions has not been supported by any documentary evidence. Although the ground of Covid 19 restrictions would eminently qualify for force majeure circumstances, it is not denied by the Appellants that construction work had come to a standstill in 2019, as alleged by the Respondents which was prior to the pandemic. It is well recognized that Covid 19 related restrictions on construction came in to effect only from mid-March, 2020 due to the nation-wide lockdown. Therefore, the contention of the Appellants of force majeure does not warrant consideration.

10.   The Hon’ble Supreme Court has laid down in a catena of judgments, notably Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC decided on 25.03.2021, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC) decided on 02.04.2019, and Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors. (2018) 5 SCC 442 that in cases of inordinate delay in offering or handing over of possession by the builder, the consumer is entitled to seek refund of the amounts deposited without deductions. In the instant case, the row house was booked on 17.04.2018 and possession as per Agreement to Sell was promised by June 2020. Even during these proceeding, completion certificate has not been brought on record. Deficiency in service is therefore writ large on part of the Appellants in not handing over possession as promised.  The Respondent is therefore well within his rights to seek a refund of his deposits with interest in the present case.

11.    While it is manifest that the Appellants failed to offer possession of the row house in question within the promised time and no occupation has also been brought on record to evidence completion of the project, and from the report of the Advocate Commissioner it is also evident the project has remained incomplete and there is no prospect of early completion and handover taking place. The finding of the State Commission that there was deficiency in service cannot be found fault with and the order is liable to be affirmed to this extent. However, the reliefs awarded by the impugned order are under multiple heads which have been held to be unjustifiable by the Hon’ble Supreme Court in its judgement in DLF Homes Panchkula Pvt. Ltd., vs D S Dhanda (2020) 16 SCC 318. Further, in light of the well-established law with regard to compensation on the refund of the amount deposited in case of inordinate delay in handing over of possession to be both compensatory and restitutionary, as held by the Hon’ble Supreme Court in Sushma Ashok Shiroor (supra), a 9% p.a. rate of interest is considered fair and just. 

12.    In view of the foregoing, the appeal is partly allowed. The order of the State Commission is affirmed with the following modifications: 

(i)     The Appellants/opposite parties are directed, jointly and severally, to refund the amount of Rs 27,66,122/- deposited by the Respondent/complainant with interest @ 9% simple interest p.a. from the respective dates of deposit within 8 weeks of this order, failing which the amount shall be repaid with interest @ 12 % p.a. till realization;

(ii)    The Appellants/opposite parties shall also pay litigation costs of Rs. 50,000/- to the Respondent/complainant jointly and severally, along with the direction above

(iii)    The directions regarding payment of rent and monetary loss to the complainant of Rs. 2,50,000/-, the sum of Rs. 2,00,000/- awarded for hiring rental accommodation and the sum of Rs 1,00,000/- for mental agony are set aside.

13.   Pending IAs, if any, also stand disposed of by this order.