1. The present two Consumer Complaints i.e., CC/2750/2018 and CC/2751/2018 have been filed under Section 21(a) (i) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants, Mrs. Muni Devi (hereinafter referred to as the ‘Complainant’) and Mrs. Sunita Devi respectively against M/s Country Colonisers Pvt. Ltd. (hereinafter referred to as the ‘Opposite Party/ Builder’) seeking possession of units booked with the Opposite Party along with compensation, and other reliefs on the ground of delay in construction of the project.
2. Since the facts and question of law involved in these two Complaints are similar except for minor variations in the dates and the Unit numbers, these Complaints are being disposed of by this common Order. However, for the sake of convenience, Consumer Complaint No. 2750 of 2018 is treated as the lead case, and the facts enumerated hereinafter are taken from Consumer Complaint No. 2750 of 2018.
3. The facts leading up to the present Complaint are that the Complainant in 2013 applied for a plot for the purpose of opening a departmental store in her vicinity and was allotted a plot by the Opposite Party bearing no. C-17, Sector No. Pocket – C at Wave Estate, SAS Nagar, Sector 85 and 99, District-Mohali. The relevant details are in the table as under:

4. The mentioned consideration included the development of the entire complex, along with internal services such as road construction, park and landscape development, installation of water, sewer, electrical, and storm water drainage systems, and essential civic services. The Commercial Plot Allottee (s) Arrangement (hereinafter referred to as the ‘Arrangement’) was executed on 27.12.2013.
5. According to the plot Arrangement, the Opposite Party was obligated to hand over the possession of the plot to the complainant within 18 months from the execution of the Plot Arrangement plus a 6 month grace period. Therefore, the Opposite Party was required to deliver the flat by 27.12.2015. The relevant portion of Clause 5.1 is reproduced herein below:

“5.1 That the Developer shall endeavour to complete the development of the ‘Commercial Plot’ within a period of 18 months from the date of signing of this Arrangement by the Allottee or within an extended period of 6 months, subject to force majeure conditions [as mentioned in Clause (b) hereunder] and subject to other Allottee(s) making timely payment as mentioned in Payment Plan as given in Annexure-A or subject to any other reasons beyond the control of the Developer. No claim by way of damages/compensation shall lie against the Developer in case delay in handling over the possession on account of any of the aforesaid reasons and the developer shall be entitled to a reasonable extension of time for the delivery of possession of the said Commercial Plot to the Allottee(s).”

6. The Complainant stated that as per the plot Arrangement, he had paid an amount of Rs.91,80,139/- to the Opposite Party by 07.11.2016 towards the consideration of the Unit. Further, he undertakes to make the final payment on the date of possession.
7. The Complainant duly complied with all obligations on her part. However, the Opposite Party failed to perform his obligation of delivering the possession of the said plot on or before 26.06.2015. Whenever the Complainant visited the office of the Opposite Party, a new delivery date was given. The Opposite Party has only completed the bare minimum of work on the said plot till date.
8. The Complainant’s son sent emails to the Opposite Party inquiring about the timeline for the plot registration, as the Complainant wanted to take advantage of the reduced stamp duty offered by the Punjab government until the end of 2017.
9. The Opposite Party failed to provide possession of the said plot even after 5 years from the date of execution of the plot Arrangement. The Opposite Party has stopped all of developments in the said project.
10. Aggrieved by the above acts of the Opposite Party, the Complainants filed a Complaint before this Commission with prayer as under:

1. Direct the Opposite Party to handover the possession of the Commercial Plot bearing No. C-17, Sector No Pocket –C, measuring 140 square yards (117. 06 sq. meter) at Wave Estate, SAS Nagar, Sector 85 and 99, District Mohali (Punjab) complete in all respects immediately and with all amenities and facilities as agreed to by the Opposite Party in its brochure as well as in the Plot Arrangement dated 27.12.2013 to the Complainant, and execute all the necessary and required documents including and but not limited to the Sale deed of the Plot in favour of the Complainant herein.

2. Direct the Opposite Party to pay compensation @18% per annum on the sum of Rs. 91,80,139/- being the amount deposited by the Complainant with the Opposite Party with effect from 18 months from the date of the plot Arrangement dated 27.12.2013 (i.e. from 26.06.2015) till the date of the actual delivery of the possession of the plot complete in all respects and with all amenities and facilities as agreed to by the Opposite Party in its brochure  as well as in the Plot Arrangement dated 27.12.2013.

3. Direct the Opposite Party to bear/pay any increased rate of stamp duty cost payable by the Complainant at the time of registration of the said plot over and above the rate of 6% of the total compensation which the Complainant offered to pay in 2017.

4. Direct the Opposite Party to pay a sum of Rs. 20,00,000/- (Rs. Twenty Lakhs Only) to the Complainant towards mental agony and harassment and cost of litigation; and

5. Pass any other or further relief in favour of the Complainant and against the Opposite Party, which the Hon’ble Commission may deem fit, just and proper in the facts and circumstance of the case.

11. The Opposite Party resisted the Complaint by taking the main objections as under:
    1. The Complainant is not a consumer. The Opposite Party further stated that the Complainant owns other properties and, therefore the plot in question has not been purchased by the Complainant for personal use. The Complainant’s son was only purchasing for investment purposes.
    2. The delay in the construction of the project was due to force majeure circumstances. For eg. delay in land acquisition by Government, delay in transfer of land, etc.
    3. The Complainant failed to make timely payment, for which the Complainant is liable to pay a sum of Rs.5,89,098/-.
    4. The Opposite Party received the partial Completion Certificate on 12.09.2018 and thereafter sent an offer of possession vide letter dated 07.05.2019 on the completion of the project.

12. The Complainant, in her rejoinder, denied the averments made by the Opposite Party and reiterated the contentions made in the Complaint. The Complainant further stated that :-

1. The Complainant applied for two commercial units in the vicinity along with a residential unit for departmental store and apparel boutique. The said plot in dispute was purchased for the purpose of managing the household.
2. The Complainant filed three complaints i.e. CC/3684/2017, CC/2750/2018, CC/2751/2018 only when the possession was not handed over by 2015.
3. The OP failed to explain the delay of over 6 and half years from the stipulated period. The opposite Party failed to provide the timeline by which the possession of the said plot will be handed over to the complainant.
4. The Opposite Party has blamed the Government of Punjab and the Greater Mohali Area Development Authority (GMADA) for the delay in handing over possession of the Unit, citing an agreement in which the State Government supposedly promised to allocate land after acquisition under the Land Acquisition Act, 1894. The Opposite Party admitted that the non-transfer of this land delayed the completion of basic service lines. Despite this knowledge, the Opposite Party entered into the Plot Arrangement with the Complainant in 2013. The Complainant was not informed of these issues until they were revealed in the Opposite Party’s Reply to the Complaint.
5. No interest is payable on possession as the Opposite Party has not obtained the complete occupation certificate.
6. The Opposite Part received a partial completion certificate dated 12.09.2018, and the OP has sent a letter dated 07.05.2019. The Complainant received the letter vide an email dated 03.09.2019.  The Complainant further stated that it was an afterthought and a counterblast to the instant complaint.

13. I have heard learned Counsel for both parties and have gone through the material available on record.
14. Learned Counsel of the Complainant argued that an application being IA/7168/2022 dated 02.08.2022 has been filed for grant of Interim Relief during the pendency of the case. The Learned Counsel for the Complainant further argued that the Plot Arrangement was executed on 27.12.2013, and the due date for handing over the possession of the plot was 26.12.2015, including the grace period of 6 months. The Complaint was filed only in the year 2018. A letter of possession dated 07.05.2019 was received by the Complainant belatedly via email on 03.09.2019. The Ld. Counsel for the Complainant further argued that he undertakes to make the balance payment to the Opposite Party upon possession of the said unit.
15. Ld. Counsel for the Opposite Party argued that the Opposite Party had obtained the Partial Occupation Certificate on 12.09.2018, and the same was placed on record before this Commission vide IA No 1166/2022.  Learned Counsel for the Opposite Party argued that the Complainant is not a consumer but merely a speculative investor who has purchased the said plot for investment and owns multiple properties.  Learned Counsel for the OP argued that the Opposite Party is ready to give the refund to the Complainant.
16. The objection by the Opposite Party was that the Complainant is not a consumer, but merely a speculative investor who has purchased the said plot for investment purposes and owns multiple properties. In this regard, it would be appropriate to draw attention to this Commission’s order in the case of Sanjay Rastogi vs. BPTP Limited and Anr. (CC No. 3580 of 2017) which was subsequently upheld by the Supreme Court in M/S BPTP Limited vs. Sanjay Rastogi, decided on 12.04.2021. The relevant extract of the judgment are reproduced herein,

“One, the Complainant has clarified in the very first para of his plaint that he is not buying the unit for any commercial purpose. It is for the OP to prove otherwise. Two, commercial purpose requires that the Complainant be shown to be in the business of buying and selling flats. No attempt has been made to prove this.” This Commission has taken similar view in the case of Sai Everest Developers vs. Harbans Singh Kohli, 2015 SCC Online NCDRC 1895 decided on 21.07.2015, in which it was held that “the Opposite Party should establish by way of documentary evidence that the Complainants were dealing in real estate or in the purchase and sale of the subject property for the purpose of making profits.”

In the present complaint, the Opposite Party failed to establish its case that the plot was purchased for investment purpose.  Therefore, its argument is not valid.

17. The objection that the delay was due to reasons beyond the control of the Opposite Parties or due to Force Majeure circumstances is devoid of merit. In this regard, attention is drawn to the Order of this Commission in Sivarama Sarma Jonnalagadda & Anr. Vs M/s Maruthi Corporation Ltd. And Anr. decided on 21.09.2021 wherein it was held that:

“We are of the view that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on force majeure clause while retaining the amounts deposited by the complainant, is not only an act of deficiency of service but also amounts to unfair trade practice.”

This Commission in the matter of Reshu Kansal vs. Raheja Developers Ltd., 2023 SCC Online NCDRC 388, decided on 06.01.2023 made a similar observation on the reasons related to force majeure circumstances. The relevant portion of the Order reads as under:

“8. As far as the contention of the learned counsel for the opposite party Developer that the project is delayed due to failure on the part of the State Authorities in providing infrastructure facilities like road, water, electricity and sector roads is concerned, we observe that it is the duty and responsibility of the Opposite Party Developer to follow up with the State Authorities for providing infrastructure facilities like road, water, electricity and sector roads. The Complainant cannot be made victim for the same. Therefore, we see no merit in the contention and the same is rejected.”

18. The Complainant in the present case is seeking possession of her Unit along with delay compensation. As per Clause 5.1 of the Plot Arrangement dated 27.12.2013, the Complainant was to get possession of the Plot within 24 months (including the grace period of six months) i.e. on 26.12.2015. The Opposite Party obtained a Partial Completion Certificate on 12.09.2018 and thereafter on 07.05.2019 offered possession to the Complainant but actually failed to deliver possession of the Plot even after getting substantial amount of total consideration. However, this possession if given is not proper/ valid in absence of final Occupation Certificate. In this regard, I would like to rely upon the Order of the Hon’ble Supreme Court in M/s Landmark Pvt. Ltd. V. Sonia Ahluwalia & Anr. in Civil Appeal No. 4567 of 2022 decided on 18.07.2022. The relevant portion of the Order reads as under:

“2. In terms of an MOU dated 11 May 2012, the appellant agreed that possession of the commercial unit which was agreed to be sold to the respondent would be handed over by 11 May 2015. Though possession is alleged to have been offered on 8 June 2015, it is undisputed that the occupation certificate was received from the Department of Town and Country Planning of the State of Haryana after the complaint was filed on 26 December 2018. In other words, there was no valid offer of possession in the absence of an occupation certificate.”

19. The Opposite Party is yet to obtain the final Occupancy Certificate which clearly means that the Construction is not complete in all respects. The Supreme Court in Samruddhi Co-Operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. in Civil Appeal 4000 of 2019, decided on 11.01.2022, held that, “the failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable.”
20. The Complainant has not paid the full consideration with respect to the plot. There has been a continuous delay in giving possession of about 9 years and the Opposite Party has not given any reasonable justification for the delay except for stating that the delay is due to the reasons beyond its control. The Complainant in the present case is seeking possession of her plot and therefore it would be in the interest of justice that the Complainant gets possession along with reasonable delay compensation on payment of the balance amount to the Opposite Party. For the rate of interest for delay compensation in case of possession, I would like to rely on the Order of the Hon’ble Supreme Court in DLF Home Developers Ltd. (Earlier known as DLF Universal Ltd) and Another Versus Capital Greens Flat Buyers Association in Civil Appeal No. 3864-3889 of 2020 decided on 14.12.2020, wherein it had decided on the reasonable delay compensation. The relevant portion of the Order reads as under:

          “It is true that in the present case, the contractual rate of Rs 10 per square foot per month is double the rate fixed in the agreements in the above case. On the other hand, the court must be conscious of the fact that the situation in the real estate market in Delhi is very distinct from that in Bengaluru both in terms  of rentals and land values.  This has not been disputed. The flat buyers had to suffer on account of a substantial delay on the part of the appellants. In such a situation, they cannot be constrained to the compensation of Rs 10 per square foot provided by the agreements for flat purchase. However, having regard to all the facts and circumstances, we are of the view that the compensation on account of delay should be brought down from 7% to 6%. Moreover, the amount, if any,  which has been paid in terms of the contractual rate shall be adjusted while computing the balance due and payable in terms of the judgment. (In the earlier decision noted above, compensation at 6% was ordered to be paid in addition to the contractual rate since the amenities agreed to be provided by the developer had not been set up).

10. Insofar as the parking and club charges are concerned, in view of the decision of the court in Wing Commander Arifur Rahman Khan (supra), the direction of the NCDRC in that regard shall stand set aside.

11. Accordingly, we allow the appeals in part to the following extent:

1. The compensation on account of delay in handing over possession of the flats to the flat buyers is reduced from 7% to 6%; and

2. The direction for the refund of parking charges and club charges and interest on these two components shall stand set aside.

12. We clarify that the directions of the NCDRC are upheld, save and except, for the above two modifications in terms of clauses (i) and (ii) above. The payment at the rate of 6% per annum shall be made after making due adjustments for the compensation for delay at the contractual rate (where it has been paid in terms of the agreement to the flat purchasers). The order shall be complied with within a period of two months from today.”

21. In view of the discussion above, I partly allow both the Complaints i.e. CC/2750/2018 and CC/2751/2018 and with directions as under: -

1. The Opposite Party shall complete the construction of the plot allotted to the Complainant in all respects, duly obtaining the requisite Occupation Certificate at its own cost and responsibility and hand over possession of the Unit subject to the payment of the balance amount, as per the original Arrangement, by the Complainants within six months of this Order. 
2. The Opposite Party shall pay to the Complainants delay compensation @ 6% per annum from the proposed date of possession as per the agreement i.e. 26.12.2015, till the offer of possession or obtaining Occupation Certificate whichever is later. Any delay beyond six months will attract an interest rate of 9% per annum for the same period.
3. The Opposite Party shall not demand any penal interest on the delayed payment made by the Complainants till the date of obtaining the Final Occupation Certificate or offer of possession whichever is later.
4. If the Opposite Party fails to obtain the Occupation Certificate and hand over possession within six months, the Complainants shall have the option to seek refund of their respective deposited amount along with delay compensation @ 9% per annum from the respective dates of deposits till realization within six weeks of such option failing which the rate of interest shall stand enhanced to 12% per annum for the same period.

22. Pending Applications, if any, in both the Complaints stand disposed of.