PER MR SUBHASH CHANDRA, MEMBER

        This is a complaint u/s 21 read with section 12 (1) (a) of the Consumer Protection Act, 1986 filed by the complainants seeking refund of the amount deposited in respect of the flat booked by them with the opposite parties in a project promoted and developed by the opposite parties along with penal interest and other compensation, alleging deficiency in service and unfair trade practice on account of the delay in handing over possession of the flat.

2.     In brief, the facts of the case are that the complainant had booked a flat in the project “The Corridors” promoted and developed by the Opposite parties viz., located at Golf Course Extension Road, Sector 67 A, Gurgaon, Haryana on 22.03.2013 for their residential purpose. An allotment letter was issued by the opposite party to the complainant on 07.08.2013 allotting flat no. CD B5 – 12 - 1204 in Tower B5, admeasuring 1540.13 sq ft in the above said project for a total sale consideration of Rs.1,51,55,240/-. The complainants deposited Rs.46,52,743/- towards this flat by way of several instalments. Thereafter, an Apartment Buyers Agreement (in short ‘ABA’) was entered into between the complainants and the opposite party on November 2013. As per clause 12.2 of the ABA the opposite party committed to offer possession of the flat within 42 months with an additional grace period of six months from the date of building plan approval, which was obtained on 23.07.2013, i.e., on or by February 2018, failing which compensation at the rate of Rs.7.50 per sq foot was promised by the opposite party to the complainant. The complainant thereafter, raised certain objections that the agreement was entirely one-sided and arbitrary, terms of which were not acceptable but never received any substantive reply from the opposite party who refused to change/modify the terms of ABA. Thereafter, complainant sent an email on 28.05.2016 to the opposite party seeking cancellation of the allotment and transfer of the money deposited to another unit booked by the complainant and her family members in another project of opposite party no.1. The opposite party on 01.09.2016 cancelled the allotment of the complainant and deducted the amount and stated that complainant is entitled for Rs.3,06,655/- from the total amount deposited by the complainant i.e. Rs.46,52,743/-. The complainant have approached this Commission alleging deficiency in service and unfair trade practice in imposing entirely one sided conditions in the ABA that are in favour of the opposite party which the complainants as consumers were unable to contest. The complainants have sought full refund of the deposited amount and other reliefs as per the following prayer:

(i)     Direct the opposite party (s), jointly or severally, for an immediate 100% refund of the total amount of Rs.46,52,743/- paid by the complainant, along with a penal interest of 18% per annum from the date of the receipt of the payments made to the opposite party (s);

(ii)    Direct the opposite party (s), jointly or severally, to pay compensation of Rs.5,00,000/- to the complainant for mental agony, harassment, discomfort and undue hardships caused to the complainant as a result of the above acts and omissions on the part of the opposite party (s);

(iii)    Direct the opposite party (s) jointly or severally, to pay a sum of Rs.1,00,000/- to the complainant as a whole, towards litigation costs;

(iv)   That any other and further relief in favour of the complainant as the Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.

3.     The opposite party has contested the complaint by way of affidavit in evidence and written submission. The complaint filed before this Commission was premature as the period of 48 months needs to be calculated with effect from 27.11.2014, the date on which the fire safety scheme was approved. He further states that this Commission has no jurisdiction under the CP Act, 1986 to amend/ modify/ re-write the terms of the agreement. It is averred that the allegations in the complaint are of a contractual nature and as such triable only in a civil court. It is also averred that the complainant is not a “consumer” since she had booked the flat for speculative gains. It has been submitted that under the CP Act 1986 compensation can only be as per Section 14 (1) (d) of the CP Act 1986, and that this section is not attracted in this case. The OP’s case is also that the ABA related to an agreement to sell an apartment by the OP and no ‘service’ was to be rendered within the meaning of Section 2 (1) (o) of C P Act, 1986 to the complainant. Therefore, there was no deficiency in service involved.

4.     We have heard the learned counsel for the complainant and perused the records. The learned counsel for the opposite party after seeking adjournments on several occasions, again prayed for time on the grounds of non-availability of the senior counsel, even though the party was represented by a law firm with other advocates on record. None appeared even after a short adjournment to argue the case. Arguments were therefore heard on behalf of the complainant who submitted that the complaint was squarely covered by a judgement of the Hon’ble Apex Court. The evidence and written submission filed by the opposite parties were therefore, considered as the final arguments.

5.     Learned Counsel for the complainant has relied mainly on the judgement of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (2021) 3 SCC 241 dated 11.01.2021 which relates to the same project of the opposite party, i.e., ‘The Corridors’, Sector 67 – A Gurgaon, Haryana. It is his averment that as per this judgement, the Hon’ble Apex Court has taken cognizance of the fact that the project had both completed and incomplete/un-commenced towers in Phases I and II of the project. Based on the fact that the occupancy certificate from the statutory authority was available only in respect of certain towers on the date when the case was filed and noting the fact that the builder-opposite party had not commenced/completed other towers in Phase II, the Apex Court had balanced the interests of both the consumer complainants and the builder-opposite parties by (a) equitably allocating the obligations for a full refund of payment to be made with penal interest to the allottees in the case of incomplete/un-commenced flats for the interregnum between the committed date and the date of making of the offer of possession by the opposite party and (b) the obligation to accept possession where the complainants had prayed for possession to be made with compensation for the delay in the case of flats/towers where construction was completed and occupancy certificate was available. In doing so, the Hon’ble Apex Court reiterated the law with regard to the right of the consumer to seek refund in view of the inordinate delay on the part of the opposite party as laid down in Pioneer Urban land and Infrastructure Ltd., vs Govindan Raghavan in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 (2019) 5 SCC 725. It also reaffirmed that “it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession” as laid down in Kolkata West International City Pvt., Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019 and also that in view of an absence of an OC or offer of possession, the right of the complainant to refund with compensation cannot be denied.

6.     The complainant has also relied upon the judgment of this Commission in the case of Satish Kumar Panday vs Unitech Ltd. CC no. 427 of 2014 decided on 08.06.2015.

7.     The opposite party has contested the averments of the complainants on the grounds that the complainant had forfeited the earnest money as booking of the apartment had been cancelled due to default in payments; the complaint filed before this Commission was premature since the stipulated committed period was not yet over; and that the complainant is not a ‘consumer’ as per section 2 (1) (d) of the CP Act, 1986 in view of the fact that he had booked the flat for speculating in real estate. It is also argued that this Commission lacks jurisdiction to amend/ modify/ re-write the terms of the agreement. With regard to the argument that the case was covered by the judgement of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (supra), it is submitted by the opposite party that in view of an occupancy certificate dated 27.01.2022 being available the complainant is obligated to take possession of the flat. Another contention of the OP is that it is a settled proposition of law that anyone purchasing more than two apartments is not a consumer within the meaning of “consumer” under the CP Act, 1986 in case of M/s TDI Infrastructure Pvt. Ltd. Vs Rajesh Jain (2016) CPJ 377 (NC) it was held that a person who buys more than one flat without any reasonable explanation, will not fall under the definition of “consumer” and as such the purpose behind such purchase would deemed to be “commercial purpose” (under the provision of CP Act, 1986), unless the contrary is proved by the complainant with the help of cogent and plausible evidence.

8.     The admitted facts of the case are that the opposite party had through clause 12.3 of the ABA committed to handing over possession after 42 months with further period of 6 months as the ‘Grace Period’. It is also an admitted fact that the complainant had continued to make deposits of various instalments with the opposite party between 2014-15. The opposite party also admits that the construction of Tower B5 in which the flat allotted to the complainants herein, viz., flat no 1204 is located, has not been completed and that there is neither an OC in respect of this flat nor has a letter offering possession been issued. It is not denied by the opposite party that the period of 48 months from 27.11.2014 (including the grace period of 6 months), expired on February 2018.

9.     The opposite party has not been able to substantiate its averment that the complainant is not a ‘consumer’, the onus of which is squarely upon him in terms of Kavita Ahuja vs. Shipra Estate Ltd., & Jai Krishna Estate developers Pvt., Ltd. & Ors. I (2016) CPJ 31 (NC). As regards the issue whether the complainants are engaged in booking of this flat for a “commercial purpose”, it has been settled by the Hon’ble Supreme Court in [ Laxmi Engineering Works vs P S G Industrial Institute – (1995) 3 SCC 583 ] that commercial purpose has to be defined from case to case. Mere booking of multiple units of flats in itself does not constitute commercial purpose. The arguments that there was no promise of a service amounting to deficiency in service and misrepresentation constituting an unfair trade practice do not hold water as these issues stand settled in Ireo Grace Realtech Pvt. Ltd., vs Abhishek Khanna (supra) as well as in Pioneer Urban Land Infrastructure Ltd., vs Govindan Raghavan (supra). The principle of equity of obligations has been laid down by the Hon’ble Supreme Court in Abhishek Khanna (supra) in the very same project of the opposite party. In view of the settled position, the opposite party cannot deny the complainants their right to a full refund or to be kept waiting indefinitely.

10.   We have gone through the order of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt., Ltd., (Supra) and we are satisfied that the current appeal/ complaint is covered by this judgment as it relates to the same project in which the complainant had booked its flat and the Hon’ble Supreme Court has ordered full refund with interest from the date of the promise of offer of possession till repayment. As this is a covered case, we consider it appropriate to allow the complaint with the following directions:

1. The opposite party shall refund the amount of Rs.46,52,743/- along with simple interest @ 9% per annum from 27.11.2018, the date of committed possession per the ABA till the date of payment;

2. Opposite party is directed to pay litigation costs of Rs 50,000/- to the complainant;

3. Order to be complied within 3 months of the receipt of the certified copy of the order;

(d)    Opposite party shall be liable to pay a penal interest of 12% per annum in case of default.

11.   With these directions, the consumer complaint stands disposed of.