M/s Lakeshore Builders Pvt. Ltd. V/s M/s  Niho Construction Ltd.

This is a case of 2010. Therefore, we proceed to decide the case.

The case of the complainant, in nutshell, is that the complainant had booked one flat baring No. C-004 with the OP in the Marvel Sector in the residential complex known as “Scottish Garden” in Indirapuram, District Ghaziabad for one of its directors and paid Rs.508500/- on 06.05.08 and Rs.546000/- on 15.07.08; that the possession of the flat was to be handed over by the OP in January, , 2010; that the OP  made the complainant to sign two agreements on 15.05.08 binding the complainant to make further payments to the OP as and when demanded by the OP at relevant stages of construction and to pay interest @ 24% per annum on delayed payment. Thereafter, the complainant did not receive any response nor any demand letter form the OP and when the said site was visited in the late May, 2009 the complainant  found that the OP had failed to carry out the construction of the site and it was not apparent that the OP could complete the construction within the stipulated time. Accordingly, the complainant was constrained to cancel the booking of the flat and to seek refund of the money alongwith interest vide letter dated 02.06.09 duly received by the OP on 16.06.09. The OP issued two cheques of Rs.5 lacs and Rs.5,54,500/-. The cheque for the amount of Rs.5 lacs was encashed but, however, cheque for Rs.5,54,500/- was dishonoured on account of want of funds.  The OP made the payment of the amount of Rs.5,54,500/- vide a demand draft.  According to the complainant, the OP failed to pay any interest /compensation to the complainant. Hence, the complainant has filed the present complaint for issuing directions to the OP to pay Rs.3,78,530/- towards interest for illegally retaining the money of the complainant for almost 19 months and to compensate him for expenses, harassment etc. and cost of ligation.

OP in the written statement has inter-alia pleaded that the complainant had booked the flat for investment/commercial purpose and not for the use of any of its directors and in all probabilities the complainant had to re-sell the said flat after booking profit to a third person. It is denied that the OP did not respond to the complainant.  However, it is stated that the OP has told the complainant on latter’s request for cancellation that huge sums had been invested in the project and there was crunch of money with the OP and hence the refund of the money will be made in few days from the date of receiving the request. It is stated that in view of clause 18 (c) of the buyer’s agreement the OP was liable to pay penalty to be calculated @ Rs.5 per sq. ft. per month for the period of delay in handing over the possession but, however, the complainant had no patience for the project to complete and the complainant had no intention to retain the flat and use it. Hence, the complainant is not entitled to any compensation. It is prayed that the complaint be dismissed.

Complainant has filed a rejoinder wherein the complainant has not specifically denied that the flat had been booked for commercial use or for profit earning purposes.

Affidavit of Sh. Arun Kumar, Director has been filed in evidence on behalf of the Complainant. On the other hand, affidavit of Smt. Seema Sharma, Chief Admin Officer has been filed in evidence on behalf of the OP.

Written arguments have been filed on behalf of the parties.

 Facts are almost admitted. In his affidavit the complainant has not specifically denied that the complainant had booked the flat for commercial purpose/profit earning purpose though it is reiterated that the flat had been booked for one of its directors. On the other hand, the OP’s witness has reiterated that the flat had been booked by the complainant for commercial/earning purpose. Therefore, we are of the considered opinion that there is every reason to believe that the complainant had infact booked the flat for commercial/investment purpose and not for the use of its director. Thus, being a commercial transaction between the parties the complainant is not a “consumer” as defined in the Consumer Protection Act.

Admittedly, the agreements executed between the parties contained a stipulation in clause 18 (c) that in case the OP failed to hand over the possession of the flat to the complainant within the stipulated period the OP would be liable to pay penalty to be calculated @ Rs.5 per sq. ft. per month for the period of delay in handing over the possession.  The possession of flat was to be handed by the OP to the complainant in January, 2010. However, the complainant did not wait for this period to lapse and made request to refund the paid amount which was infact paid by the OP till 07.12.09. Therefore, in our considered opinion, by its own conduct, the complainant became disentitled to claim any interest from the OP on the amount deposited by it towards the booking amount.  Hence, we hold even otherwise there is no deficiency in service on the part of the OP.

In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs. Let a copy of this order be sent to the parties through Speed Post.  File be consigned to record room.

Announced on 24.11.17.