Per Mrs. M. Shreesha,Presiding Member

Challenge in this First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short the “Act”) is to the order dated 08.02.2017 passed by the UT Chandigarh State Consumer Disputes Redressal Commission,  (for short “the State Commission.”) in CC No. 486, 487, 488 and 489 of 2016.     

2.       By the impugned order, the State Commission has dismissed the Complaints on the ground that the allegation of fraud cannot be entertained in a summary trial before a Consumer Fora. However, liberty was given to the Complainant to avail appropriate legal remedy. 

3.       As all the Appeals arise out of the same common impugned order and involve the same set of parties all these are being disposed of by this common order.  However, First Appeal bearing No. 1281 of 2017 is being treated as a lead case.

4.       Briefly stated, the facts of the case are that the Complainant approached the  Opposite Parties (hereinafter referred to as “the Developer”) and showed her willingness to register for allotment of a residential plot measuring 300 sq. yds. in their proposed residential project titled “Omaxe New Chandigarh” in Mullanpur, District S.A.S. Nagar, Punjab for her personal use and for the use of her family members.  Complainant wanted to transfer her plot in the name of her son ‘Tanuj Gupta’ as he did not possess any plot/house any where in India.  The total cost of the plot was fixed at ₹61,53,515/- and the Complainant paid a sum of ₹14,17,500/- towards the booking amount.  The Developer provisionally allotted Plot No. OCE/II/943 admeasuring approximately 321 sq. yds. in Omaxe New Chandigarh, Mulanpur, Punjab vide letter dated 12.12.2011.  Thereafter, as per the payment schedule, the Complainant deposited a total sum of ₹58,48,838/- from 10.01.2011 to 14.06.2014, which constituted 95% of the total sale consideration and the remaining 5% of the sale consideration was to be made at the time of handing over of possession of the developed plot.  The development was to be carried out within 18 months of the Agreement with a grace period of 6 months.  However, the Developer failed to do so and even till the date of filing of the Complaint the plot was lying in an undeveloped condition and dug upto 8 ft. below the ground level without provisions of water, electricity, sewerage or road connectivity.  Aggrieved the Complainant filed a Complaint before the State Commission seeking the following reliefs:-

a) Opposite Parties be directed to:  hand over physical possession of the plot complete in all respects;

b) to execute and get registered the sale deed, in respect of the plot in question, within one month from the date of handing over the possession;

c) to pay interest @ 24% per annum on the amount from the respective dates of deposit till filing of the Complaint;

d) to pay interest @ 24% p.a. from the date of filing of the Complaint till the delivery of possession of the plot;

e) to pay compensation of ₹5,00,000/- for physical harassment and mental agony  &

f) to pay ₹2,00,000/- towards costs.

5.       The Complaint was contested by the Developer through a common Written Statement.  It was denied that the plot was purchased for the personal use of the Complainant. The Complainant has purchased 4 plots measuring 300 sq. yds each at a total cost of ₹2,36,67,605/- and there was no evidence provided by her to prove the fact that she had purchased the said plots to transfer the same in the name of her children and hence it is to be construed that the said plots were purchased for commercial/speculative purposes.  It was denied that there was no development at the site.    It was stated that time is not the essence of contract in the Agreements relating to immovable property.  The Developer had only promised to make best efforts to complete the development in terms of the Agreement and there was no definitive Agreement with regard to handing over of possession within any fixed time period.  It is prayed that the Complaint be dismissed with costs.

6.       The State Commission based on the submission of the Counsel for the Complainant and the material on record disposed of the Complaint by directing the Complainant to avail appropriate legal remedy on the ground that the Buyer’s Agreement, based on which the relief is being sought by the Complainant, is alleged to be forged and the signatures are in dispute. 

7.       On instructions, the Learned Counsel for the Complainant submitted that the Criminal Case filed against the Developer is being withdrawn and the allegations of forgery with respect to the Agreement, are being withdrawn and hence the terms and conditions of the Agreement hold.  Having held so, now the merits of the case are being addressed to.

8.       Learned Counsel appearing for the Complainant submitted that on 10.01.2011 an application was made for allotment of plot admeasuring 300 sq. ft. in the Project developed by the Developer and a booking amount of ₹14,17,500/- was paid.  The Complainant tendered part payment of ₹8,50,500/- on 02.06.2011.  On 19.11.2011 the Developer invited the Complainant to participate in the draw of lots and vide letter dated 12.12.2011 provisionally allotted Plot No. OCE/II/943 admeasuring approximately 321 sq. yds. in the subject Project.  On 16.12.2011 a Demand was raised by the Developer seeking payment of some balance amounts for which the Complainant replied vide letter dated 23.12.2011 requesting revision of the amount.  Another letter dated 04.01.2012 was again issued by the Complainant requesting for a revised demand notice.  On 03.02.2012, the Complainant issued a demand letter intimating the revised instalment plan.  Admittedly, the Complainant paid part payment for the residential plot vide cheque No. 191175 dated 10.02.2012 and vide cheque No. 191995 dated 12.04.2012 respectively.  Subsequently, the Developer issued an Allotment Letter dated 29.03.2013 and the Complainant after receiving finance through Dewan Housing Finance Corporation paid 95% of the total sale consideration to the tune of ₹58,48,838/- from 10.01.2011 to 14.06.2014.  Payment of the balance 5% of the Sale Consideration was to be made at the time of handing over of the possession of the developed plot.  Learned Counsel appearing for the Complainant contended that the development was to be completed within 18 months of the Agreement with a grace period of 6 months but even till date, the subject plot is lying undeveloped and dug upto 8 feet below the ground level and there was no water, electricity or sewerage facilities. He contended that even the road connectivity was not provided by the Developer.  As can be seen from the record,  18 months from the signing of the Allotment Letter dated 29.03.2013 with a grace period of six months, expired on 28.03.2015. 

9.       Learned Counsel appearing for the Developer argued that the Complainant initially filed Complaints for refund of the amounts paid and withdrew the said Complaint and that the present case is for possession only.  He further submitted that the four plots were purchased for commercial purpose and hence the Complainant does not fall within the definition of ‘Consumer’ as defined under Section 2(1)(d) of the Act.  First I address to the contention of Learned Counsel for the Developer, that the Complainant does not fall within the definition of ‘Consumer’ as she had purchased 4 plots and the purchase is meant for commercial purpose.  There is a specific pleading in para 2 of the Complainant that the ‘residential plots were purchased for her personal use and the use of her family members’.  There is an averment that she transferred the plot in the name of her son Tanuj Gupta and that her son has no plot/house anywhere in India.  This Commission in Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd.  (I) (2016) CPJ 31 (NC)  held that when there is a specific pleading stating that the additional plots/flats purchased are for the personal use of the family members, the onus is on the Opposite Parties to establish that the purchaser is dealing in real estate i.e. purchase and sale of plots/flats and are indulging in commercial activity.  In the instant case there is no documentary evidence filed by the Developer to establish that the Complainant was indulging in any commercial activity in real estate, involved in the purchase and sale of plots.  At the cost of repetition, there is a specific pleading in the body of the Complaint that the plots were meant for personal use of her family members.  Keeping in view the afore-noted decision which has attained finality, I am of the considered view that the Complainant falls within the definition of ‘Consumer’ as defined under Section 2(1)(d) of the Act.      

10.     Admittedly, the Complainant has paid the following amounts to the Developer-

Plot No. 640           ₹54,26,540/-

Plot No. 851           ₹54,79,820/-

Plot No. 895           ₹57,76,082/-

Plot No. 943           ₹61,53,515/-.

          Total            ₹2,28,35,957/-.

11.     The Complainant also filed an Affidavit pursuant to the order dated 14.12.2017 in which it was stated that the Complainant had proposed that the allotted plots may be handed over to them after completing the development work which was promised in order to make the Project habitable.  But  inspection of the area concerned showed that possession of the subject plots cannot be handed over as the Development of the Project is incomplete.  Developer also could not give any time-frame within which they would be able to transfer the habitable possession of the plots. When the Complainant proposed that she should be given an exit from the subject Project, the Developer responded that they would revert within 3 days regarding the ownership/possession of the site and also their willingness to provide an exit to the Project to the Complainant, but despite reminders, there was no response.  Though the State Commission has dismissed the Complaint on the ground that there was allegation of forgery, at the cost of repetition since the said allegations have been withdrawn, I do not find it a fit case to again remand the matter back to the State Commission since  firstly it is a Consumer Complaint pertaining to the year 2016 and further the Developer still are not in a position to hand over the possession of the plots in a developed condition. Admittedly, even the Completion Certificate was not issued. Even though in the Complaint the Complainants had claimed the relief for possession of the plots in question, but on the facts and circumstances of the case, when the plot is not ready to be delivered in a developed condition, lawfully the Appellant is entitled for refund by modifying the reliefs.    Since there is a breach of the contractual obligations by the Developer, the Complainant is not obliged to accept the offer of possession even if made at a belated stage particularly when the said offer is not accompanied by any Completion Certificate or offer to pay adequate compensation and, therefore, the Complainant cannot be compelled to accept the offer of possession. Keeping in view the afore-noted facts, the Principles of Natural Justice and also to balance of equities I do not find any substantial grounds in the contention of the Learned Counsel for the Developer that the Complainant’s prayer in the Complaint cannot be modified. Accordingly, the relief is modified.  This Commission in  Emaar Mgf Land Ltd. Vs. Amit Puri II(2015) CPJ 568 (NC) held that  in the event of a Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the developer against allotment.           

12.     Keeping in view the facts and circumstances of the case, I am of the considered view that the Developer be directed to refund the amount paid by the Complainant, in all the Complaints, along with interest @ 9% p.a. from the respective dates of deposits till the date of realization together with costs of ₹25,000/- in each Appeal. 

13.     Hence, these Appeals are allowed and the order of the State Commission is set aside with the afore-noted directions.  Time for compliance four weeks from the date of receipt of a copy of the Order, failing which, it shall attract interest @ 12% p.a. for the said period.