(PER MR. JUSTICE RAM SURAT RAM (MAURYA), PRESIDING MEMBER) 1. Heard Mr. Nitin Tripathi, Advocate, for the complainant and Mr. Siddharth Banthia, Advocate, for the opposite party. 2. Gaurav Gupta has filed above complaint for directing the opposite party to (i) complete the project and deliver possession of the apartment to the complainant or to refund the amount paid by the complainant with interest @12% p.a. for the period beyond 36 months from the date of booking; (ii) reimburse the interest which the complainant had to pay to HDFC Bank; (iii) pay Rs.3550000/- as compensation for equivalent alternative accommodation; (iv) pay a sum of Rs.10 lakhs as compensation for mental harassment/torture; (v) pay litigation expenses to the complainant; and (vi) pass such order as this Commission may deem fit and proper in the facts and circumstances of the case. 3. The complainant stated that allured by the advertisement of the opposite party, the complainant booked an apartment in Raheja Revanta project on 15.11.2011 by paying booking amount of Rs.1036910/-. On 21.04.2012, the opposite party allotted apartment No.IF 32-03, Independent Floors, Raheja Ravanta, Sector-78, Gurgaon-122001 measuring approximately 1960.84 sq. ft. super area on 2nd floor and a court/terrace area of 225.61 sq. ft. Relying on the assurances of the opposite party, the complainant further paid an amount of Rs.6 lakhs on 30.04.2012. Thereafter, agreement to sell was executed between the parties on 27.07.2012. As per terms of the agreement, the complainant paid about 95% of the sale consideration till November, 2016. The complainant paid total amount of Rs.90 lakhs to the opposite party by May, 2015. Thereafter the complainant applied for house loan with HDFC Bank Ltd. and a tripartite agreement was also executed between the parties in May, 2015. As per ledger account of the opposite party, the complainant paid a sum of Rs.10499349/- to the opposite party. Possession of the apartment was to be given within 36 months from the date of booking with a grace period of 6 months. The opposite party failed to hand over possession of the apartment within the stipulated period. The complainant has paid Rs.26,39,789/- as interest to the HDFC Bank and thereafter is not in a position to pay EMI to the bank. Therefore, the complainant has written letter dated 24.05.2018 seeking cancellation of allotment and refund of the amount deposited, which they failed to do. The complainant sent legal notice dated 28.07.2018 seeking refund of the amount but in vein. Alleging deficiency in service on the part of the opposite party, the complainant filed the instant complaint on 24.09.2018. 4. The opposite party field written reply on 08.01.2019, wherein booking of the apartment, allotment of the apartment, execution of the agreement and deposits made by the complainants, have not been denied. The opposite party stated that the delay in completing the project occurred due to various factors such as non-availability necessary infrastructure facilities to be provided by the Government and force majeure etc. The opposite party has already made a provision in clause 22 of the agreement that in case of delay due to infrastructure to be provided by the Government, the opposite party would not be liable to pay any compensation since this is beyond its control. Dwarka Expressway came into litigation before Punjab & Haryana High Court due to which basic facilities such as water, electricity, sewerage, public transport, government hospitals, school etc. could not be developed. The High Court also imposed ban on use of underground water and sand mining, due to which also delay occurred. Some allottees also defaulted in making timely payment to the opposite party. Possession was to be handed over not within 36 months as alleged by the complainant but 48 months, with a grace period of 6 months, subject to various conditions. The complainant has not impleaded HDFC Bank Ltd. as a party. Therefore, the complaint is bad for non-joinder of necessary party. The complainant has booked apartment for letting out purposes. Therefore, he is not a consumer under Section 2 (1) (d) of the Consumer Protection Act, 1986. Agreement to sell of the apartment is not a service under Section 2 (1) (o) of the Act. The complaint has no merit and is liable to be dismissed. 5. The complainant filed Rejoinder Reply. The opposite party filed Affidavit of Evidence of Varun Rawat and documentary evidence. 6. We have considered the arguments of the counsel for the parties and examined the record. So far as preliminary issues raised by the opposite party are concerned, the word “consumer” has been defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 as under: - (d) “consumer” means any person who,— (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 8 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]. [Explanation.—For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;] The term “service” has been defined under Section Section 2(1) (o) of the Consumer Protection Act, 1986 as under: - Section 2(1) (o):- “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;” 7. The term “housing construction” was added by Act No.50 of 1993, under Section-2(1)(o) of the Act. Earlier the Explanation was added by Act No. 50 of 1993 w.e.f. 18.06.1993 under Sction-2(1)(d)(i) of the Act. By Act No. 62 of 2002, w.e.f. 15.03.2003, Section-2(1)(d) (ii) was also amended and the term “but does not include a person who avails such services for any commercial purpose” was added in it and the Explanation was placed in last. 8. Scope of the expressions “commercial purpose” and “exclusively for the purposes of earning livelihood by means of self-employment” came up for consideration before Supreme Court in relation to purchase of goods in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, wherein it has been held that the Explanation was an exception to an exception. Expression “commercial purpose” has not been defined, as such, its dictionary meaning has to be taken into consideration. “Commerce” means financial transaction, especially buying and selling of merchandise on large scale. In view of the Explanation the term “large scale” has no significance. As the Explanation excludes the transaction which was done for “exclusively for the purposes of earning livelihood by means of self-employment”, from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such a buyer from the purview of the “consumer” so long as it is used by the buyer or his family members. 9. The interpretation of the phrase “commercial purpose” again came up for consideration in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers and others, (2020) 2 SCC 265, Supreme Court has given various guidelines for deciding the commercial purposes i.e (i) manufacturing/industrial activities or business-to-business transactions between the commercial entities. (ii) the purchase of the good or service should have close and direct nexus with a profit-generating activity then it would be termed as “commercial purpose”. In Shrikant G. Mantri Vs. Punjab National Bank, (2022) 5 SCC 42, held that it is the purpose to which the goods so bought or put is material for deciding as to whether it was for commercial purpose or not. The legislative intent is to keep the commercial transactions out of the purview of the said Act. In National Insurance Company Limited Vs. Harsolia Motors, 2023 SCC OnLine SC 409, held that the goods purchased or services availed should be used in any activity directly intended to generate profit, which is main aim of commercial purpose, in order to apply exception. The opposite party has not adduced any evidence to prove that the complainant is engaged in the business of purchasing and selling flats. As such the complainant is consumer and complaint is maintainable. 10. As per statement of account issued by the opposite party, the complainants paid Rs.10499349/- till 24.05.2018. According to the complainant, possession was to be handed over within 36 months from the date of the agreement with a grace period of 6 months. On the contrary, the opposite party submitted that possession was to be handed over within 48 months from the date of the agreement with a grace period of 6 months. In this regard para 4.2 of the agreement is relevant and the same reads as under: - “4.2 Possession time and Compensation That the seller shall sincerely endeavour to give possession of the unit to the purchaser within thirty-six (36) months in respect of “TAPAS” Independent Floors and forty-eight (48) months of “SURYA TOWER” from the date of the execution of the agreement to sell and after providing of necessary infrastructure specially road, sewer & water in the sector/to the complex by the Government, but subject to force majeure conditions or any Government/Regulatory authority’s action, inaction or omission and reasons beyond the control of the seller.” From the above, it is clear that in respect of independent floors, possession was to be handed over within 36 moths with a grace period of 6 months. Admittedly, the complainant was allotted apartment No.IF 32-03, Independent Floors, Raheja Ravanta, Sector-78, Gurgaon-122001. Therefore, it cannot be said that the possession was to be handed over within 48 months from the date of the agreement. The apartment buyer agreement was executed in May, 2015. The opposite party was liable to handover the possession by November, 2018, which it failed to do. When the complainant requested for cancellation and refund of his amount, the opposite party also failed to refund the amount. The opposite party has taken plea of force majeure, which is not liable to be accepted. If the opposite party was not proceeding with the construction, there was no justification for realizing the payment. Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, held that the home buyer cannot be made to wait for possession for an unlimited period. Regarding non-joinder of HDFC Bank Ltd. as an opposite party, the complainant has not sought any relief against the Bank nor alleged any deficiency in service. Therefore, HDFC Bank Ltd. is not a necessary party. ORDER In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants with interest @9% per annum from date of respective deposit till the date of refund, within a period of two months from the date of this judgement. If the flat allotted to the complainant is mortgaged, then it will be open to the opposite party to satisfy the loan of the bank first and pay the balance amount to the complainant. |
