JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          The complainant booked a shop with the OP in a project namely ‘Ansal Town Walks’ which the OP was to develop in Sector-104 of Gurgaon.  The application for allotment was submitted by the complainant on 07.03.2013 alongwith the registration amount of Rs.5 lacs.  The parties then executed an agreement dated 21.11.2013 incorporating their respective obligations in respect of the said allotment.  The sale consideration for the shop was agreed at Rs.68,56,668/- and the complainant has paid Rs.53,60,121/- to the OP.  Clause 30 of the agreement reads as under: 

          The Developer shall offer possession of the Unit any time, within a period of 42 months from the date of execution of Shop/Office Buyer Agreement or within 42 months from the date of obtaining all the required sanctions and approval necessary for commencement of construction, whichever is later subject to timely payment of all the dues by Buyer and subject to force-majeure circumstances as described in clause 31.  Further, there shall be a grace period of 6 months allowed to the Developer over and above the period of 42 months as above in offering the possession of the Unit.

2.      The possession of the shop having not been offered to him and even the construction having not been completed, the complainant has approached this Commission by way of this Consumer Complaint seeking refund of the amount paid by him to the OP alongwith compensation etc.

3.      The complaint has been resisted by the OP which has taken a preliminary objection that a shop having been booked by him, the complainant is not a consumer within the meaning of Consumer Protection Act.  Another preliminary objection taken by the learned counsel for the OP is that this Commission lacks the pecuniary jurisdiction to entertain the Consumer Complaint since the sale price of the shop was less than Rs.1 Crore.  On merits, the OP has admitted the allotment made to the complainant as well as the execution of the agreement with him.  It is stated in the written version that the construction is in full swing, the OP having obtained all the requisite approvals.  It is also alleged that the construction was delayed on account of factors such as order of the Hon’ble High Court of Punjab & Haryana banning extraction of ground water, order passed by NGT banning mining of sand in Haryana and Rajasthan, reservation agitation in Haryana, order of NGT to stop construction to prevent emission of dust, demonetization etc.

4.      As far as the pecuniary jurisdiction of this Commission is concerned, in terms of Section 21 of the Consumer Protection Act, this Commission would have the pecuniary jurisdiction to entertain the Consumer Complaint where the value of the goods purchased or the services hired or availed as the case may be and compensation if any, claimed in the complaint, exceeds Rs.1 Crore.  The agreed sale consideration, if I go by the statement of account filed by the complaint, was more than Rs.71 lacs.  As held by a three-Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016, the value of the services in such a case would mean the sale consideration agreed to be paid by the buyer to the seller.  If the compensation claimed by the complainant is added to the aforesaid amount, the aggregate comes to much more than Rs.1 Crore.  Therefore, this Commission does possess the requisite pecuniary jurisdiction to entertain the Consumer Complaint.

5.      As regards the second preliminary objection taken by the OP, the complainant has specifically averred as under in the rejoinder filed by him:

          It is submitted that the complainant is a ‘Consumer’ within the meaning of Section 2(d) of the Consumer Protection Act, 1986.  It is submitted that the complainant is a self-employed person and has booked the said shop Unit with the Opposite Party for the livelihood of himself and his family members.  It is further submitted that the complainant is currently using a rented premises for his office purpose and he has purchased the Shop/Office Space from O.P. so that he does not have to pay rent for his office premises any more.  A copy of the rent Agreement for the Office premises being used presently by complainant is annexed herewith as Annexure-C10.

6.      It is thus evident that the shop in question was booked by the complainant for the purpose of earning his livelihood by way of self-employment since he was operating from a rented accommodation at the time the said booking was made and wanted to shift to a premises owned by him.  Therefore, the case of the complainant is squarely covered under the explanation below Section 2(1)(d) of the Consumer Protection Act.  I therefore, find no merit in the second preliminary objection taken by the OP.

7.      Coming to the merits of the case, a perusal of the statement of account would show that the fourth installment was paid by the complainant in October 2013.  The said installment was payable on commencement of the construction.  Therefore, it is evident that the construction as per the demand made by the OP, had commenced on or before October 2013.  Though environmental clearance is stated to have been obtained by the OP in April 2014, they having already started the construction earlier than that, they cannot claim benefit of the said environmental clearance and therefore, they ought to have delivered possession of the allotted shop to the complainant by October 2017.  Even if the aforesaid period is computed from April 2014, the possession ought to have been offered by April 2018.  The existing position however, is that the possession of the allotted shop is not given.  The complainant having booked the shop way back in the year 2013, cannot be compelled to wait indefinitely for the possession of the said shop and therefore, is entitled to refund of the amount paid by him.

8.      The learned counsel for the OP submits that the very fact that a shop as well as a residential apartment was booked by the complainant in the projects of the OP by itself indicates that he was an investor and not a bonafide consumer.  I however, find no merit in this complaint.  A person cannot be said to be a speculative person merely because he books one residential accommodation for his residence and one shop for the purpose of earning his livelihood by way of self-employment. 

The learned counsel for the OP submits that the rent agreement filed by the complainant is of the year 2017 and has been created only with a view to make out a case in his favour.  Again I find no merit in the contention since no evidence has been led by the OP to prove that the premises subject matter of the rent agreement filed by the complainant is not actually rented by him. 

9.      No evidence has been led by the complainant to prove the actual loss suffered by him.  The learned counsel for the complainant states on instructions that considering the interest rates prevailing at the relevant time, the complainant his restricting his claim to the refund of the principal amount alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.  10.          The complaint is therefore, disposed of in terms of the following directions:

          (i) The OP shall refund the entire principal amount of Rs.53,60,121/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.

          (ii)      The OP shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainant.

          (iii)     The payment in terms of this order shall be made within three months from today.