1.      Heard Mr. C. Mohan Rao, Senior Advocate assisted by Mr. Lokesh Kumar Sharma for the complainant and Mr. Jeetender Gupta, Advocate for the opposite party.

2.      Radhey Shyam Pathak has filed the above complaint for directing the opposite party to (a) handover physical possession of all the four units of the same size as mentioned in the allotment letter, allotted to him alongwith necessary permissions, clearance, NOC and other documents relating to the unit; (b) pay compensation in the form of interest @ 24% p.a. from 21.01.2014 till date of handing over possession; (c) pay Rs.20/- lacs as compensation for mental agony and harassment; (d) pay Rs.10/- lacs as litigation cost; and (e) any other relief which is deemed fit and proper in the facts of the case.

3.      The complainant stated that M/s Hi-Lead Infotech (P) Limited, the opposite party was a company registered under the Companies Act, 1956 and engaged in the business of development and construction of residential and commercial buildings. The opposite party has launched a project of commercial building in the name of Urbtech NPX at plot No.1, Sector-153, Noida in the year 2009 and made publicity of it. The complainant was working as a Senior Irrigation Water Sector Specialist with World Bank and his date of superannuation in that job was 30.11.2013. The complainant came across of the advertisement of the opposite party and in order to settle himself after retirement the complainant booked 4 contiguous units at 11^th floor of the building Urbtech NPX and deposited the booking amount on 07.12.2009. In pursuance thereof, a letter of intent was executed between the complainant and M/s Urbtech India Developers Pvt. Limited. As per memorandum of understanding, the possession was to be handed over on or before 20.01.2014. Later on, the opposite party issued letters of allotment dated 20.01.2011 allotting unit Nos.11, 16, 17, & 22 on 11^th floor of the building. In the memorandum of understanding a payment plan linked with time payment plan has been attached but on the request of the complainant, the opposite party has provided a construction linked payment plan alongwith allotment letters dated 20.01.2011. The complainant has been paying instalments as per demand of the opposite party. The opposite party issued demand letters dated 10.09.2012 raising demand of 11^th instalment (on starting of internal finishing). Although these letters were dispatched on 22.09.2012 but the last date of payment was mentioned on 20.09.2012. On receiving these letters, the complainant deposited the 11^th instalment of all the 4 units on 03.10.2012. The complainant had a call with the opposite party in which the complainant has stated that letters itself were dispatched on 22.09.2012, therefore, no interest was payable on the instalment. After receiving this demand, the instalments were deposited within two weeks. Further, in this demand there was a mention of 12^th instalment of (on start of elevation), therefore, the complainant in the email dated 04.10.2012 has also mentioned that the start of elevation as 12^th instalment has no meaning and this should be start of elevator. The opposite party, however, did not reply to this email. Since the opposite party did not give any reply, the complainant did not deposit the amount of 12^th instalment as mentioned in the letter dated 10.09.2012. The opposite party issued another demand letters dated 08.04.2014 demanding Rs.176428/- towards interest in respect of unit No.16 and Rs.194946/- in respect of unit No.22. The said letters did not show the full payment made by the complainant in respect of 12^th instalment. The complainant paid Rs.292176/- in respect of unit No.16 and Rs.316423/- in respect of unit No.22 towards 12^th instalment. The due date of possession expired on 20.01.2014 but the opposite party failed to hand over the possession to the complainant. The complainant, therefore, issued a legal notice dated 09.05.2014 calling upon the opposite party to withdraw its legal demand dated 08.04.2014 and handover possession alongwith delay compensation. The opposite party, however, did not reply to the legal notice dated 09.05.2014 nor issued offer of possession, therefore the complainant gave another notice dated 29.09.2014 calling upon the opposite party to withdraw the illegal demands and hand over possession with delay compensation. The opposite party thereafter issued letters dated 01.12.2014 demanding Rs.150000/- towards electricity connection charges in respect of all 4 units and service tax of Rs.1854/-. The complainant personally visited the site and found that units were not ready for taking physical possession. The complainant requested the opposite party to supply a copy of completion certificate as well as other mandatory clearance, NOC, certificate of structural stability, fire NOC etc. However, the opposite party has refused to supply any document. The opposite party thereafter issued another letter dated 15.04.2015 alleging to be a reminder for final payment and calling upon the complainant to take possession within 30 days of the payment. In this letter the opposite party has also demanded maintenance charges mentioning that as a gesture towards their clients, the opposite party decided to wave off the maintenance charges till 30.04.2016. Even at that time the building was not ready for occupation, therefore, the maintenance charges were not payable. Having no alternative, the complainant gave final legal notice dated 23.05.2015 calling upon the opposite party to withdraw the illegal demand and handover possession alongwith delay compensation. In spite of service of the notice, the opposite party did not respond. Then the complaint was filed on 26.02.2016.

4.      The opposite party filed its written reply in which the booking of the shops and payments made by the complainant have not been disputed. The opposite party stated that on the request of the complainant the payment plan was changed as construction linked plan as attached alongwith the allotment letters dated 20.01.2011. As per clause-17 (a) of the allotment letter the construction has to be completed within 36 months from the date of the signing of the allotment letter with an extended period of 6 months. It was further subject to force majeure condition and timely payment of instalment. The due date of possession was July, 2014 and not 20.01.2014. In the payment plan as supplied alongwith the allotment letter to the complainant, the 12^th instalment of 13% of basic consideration was payable on start of elevation. However, in spite of demand letter dated 08.04.2014, the complainant has not paid this instalment, therefore, the complainant is liable to pay interest on this instalment. The opposite party completed the construction and obtained completion certificate on 22.08.2014. Thereafter, the possession letter was issued to the complainant alongwith final demand on 01.12.2014. However, instead of depositing the money of final demand, the complainant raised objection and started issuing legal notices dated 09.05.2014, 20.09.2014 and 23.05.2015. The construction is ready and the complainant has to pay the final demand and take possession. As the complainant himself has defaulted in payment as such he was not entitled for delay compensation inasmuch as the possession has to be delivered on timely payment of the instalment. The opposite party raised a preliminary objection that the complainant is not a consumer inasmuch as 4 commercial units have been booked by him. Although the complainant was in the employment of World Bank scheme, therefore, he booked the shops by way of speculation of increased prices. Since the prices have not increased, therefore, he is avoiding final payment and taking possession. The value of the shop was about Rs.20/- lacs, therefore, the complaint is not falling within the pecuniary limits of this Commission.

5.      The complainant filed rejoinder reply and affidavit of evidence of Radhey Shyam Pathak and documentary evidence. The opposite party has not filed affidavit of evidence. Both the parties have filed their short synopsis of arguments.

6.      We have considered the arguments of the counsel for the parties and examined the record. So far as preliminary objection that the complainant is not a consumer inasmuch as 4 commercial units have been booked by him is concerned, Supreme Court in Sunil Kohli vs. Purearth Infrastructure Ltd. (2020) 12 SCC 235 held that even if a commercial space booked for doing business by way of self-employment will not oust the allottee from the definition of consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. The Supreme Court has laid down the guidelines for deciding the issue of commercial purpose in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers, (2020) 2 SCC 265 in which the Supreme Court held that the purpose of the goods or services should have close and direct nexus with profit generating activity, then it would be termed as ‘commercial purpose.’ Although the commercial units have been booked by the complainant, it is certainly booked for commercial purpose but the complainant has stated that he was going to retire from his existing job as Senior Irrigation Water Sector Specialist with World Bank on 30.11.2013. While as per MOU the possession of these units has to be delivered till 20.01.2014, therefore, he has booked these units for opening his office by way of self-employment. Apart from the allegation of the complainant that he had booked these commercial spaces for the purpose of his office by way of self employment, there is no material on record to show that he was using it not for his own purpose. In such circumstances, the objection raised relating to the complainant being not a consumer is not liable to be accepted. So far as pecuniary jurisdiction of this Commission is concerned, the complainant has joined the cause of action of 4 units in this complaint which he can do as such the cost of all 4 units together with the compensation claimed in the complaint is relevant consideration for determining the pecuniary limits which exceeds Rs.1/- crore, therefore, the complaint was falling with the pecuniary limits of this Commission.

7.      According to the opposite party the completion certificate was obtained on 22.08.2014 and final demand letter was issued to the complainant on 20.09.2014 filed as annexure C-14 to the complaint. As per clause 17 (a) of the allotment letter due date of possession was 30.07.2014 and there was a small delay of about 2 months in handing over the possession. According to the opposite party the complainant has committed default in payment of 12^th instalment, therefore, he was not entitled for delay compensation.

8.      The demand relating to 12^th instalment was included in the letter dated 10.09.2012 which is not disputed. The complainant challenged this demand on the ground that it was in the head of start of elevation which has no meaning. In this respect it is relevant that earlier payment plan as per MOU was time linked payment plan and on the request of the complainant it was converted into construction linked payment plant. Heading of the instalment is not material inasmuch as what is material is 13% of the basic sale consideration which has to be paid before the last instalment on offer of possession. Admittedly this instalment has not been paid by the complainant, therefore, the complainant was liable to pay interest on it and demand of interest by subsequent letters by the opposite party cannot be said to be illegal. The complainant is not entitled for any delay compensation.

ORDER

          In the result, the complaint is partly allowed. Opposite party is directed to issue final demand within one month from the date of this judgment. The opposite party is entitled to charge interest @ 9% per annum on the balance amount from November, 2014 till the date giving one month’s time to the complainant to deposit the amount. On depositing the amount, the opposite party shall complete the documentation and handover possession of the unit allotted to the complainant complete in all respect as per specification alongwith copies of the necessary documents relating to the shops as well as the project without further delay, particularly within six weeks.