PER SUBHASH CHANDRA This order shall dispose of First Appeals No.872 of 2021 and 873 of 2021 since they arise from the same impugned order which pertains to the same project and have the same conspectus of facts. For convenience, facts are being taken from First Appeal No.872 of 2021. 2. This Appeal has been filed by the Appellant/Opposite Party against the order dated 21.09.2021 of the State Consumer Disputes Redressal Commission, Rajasthan (for short “the State Commission”) in Complaint No.151 of 2019 filed by the Respondent (hereinafter referred to as “the Complainant”), praying for allowing the Appeal and to set aside the impugned order and to pass any such further other, as may be deemed fit and proper. 3. Briefly, the facts are that the Complainant is an allottee in the Appellant’s project “Avalon Royal Park”, Bhiwadi, Rajasthan and was allotted plot No.101, Tower A-4, 1st Floor admeasuring 1250 sq. ft. of super area for a basic sale price of ₹30,44,400/- along with EDC/IDC, PLC, open car parking, IFMS, power backup, club membership etc. A booking amount of ₹6,27,696/- was paid and a Builder Buyer Agreement (BBA) was executed on 27.04.2013. As per Clause 4 A, possession was proposed to be delivered by the Appellant within 42 months subject to force majeure circumstances with a grace period of six months. The Complainant paid a sum of ₹35,97,440/- to the Appellant in installments. However, possession was not offered by 27.04.2017 as per the provisions in the BBA. A pre-possession intimation dated 13.05.2019 was issued by the Appellant to the Complainant and thereafter, on the basis of the Occupancy Certificate dated 20.03.2020, an offer of possession was made on 01.09.2020. However, the Complainant filed Complaint before the State Commission on 02.08.2019 seeking refund of the money deposited by him with compensation in view of the delay on the part of the Appellant in not making an offer of possession as promised. 4. On contest, the State Commission held, vide the impugned order, that the Appellant was guilty of deficiency in service and was liable to refund the money received by it from the Complainant. Accordingly, it was directed that the sum of ₹35,97,440/- be refunded within three months with simple interest @ 10% p.a., failing which the interest payable would be 12% p.a., along with ₹2 Lakhs and ₹50,000/- towards complaint expenses, failing which interest @ 9% p.a. would be payable on the amount of ₹2,50,000/-. 5. This order is impugned before us. 6. We have heard learned Counsel for the parties and perused the material on record. Both the parties have filed their short synopsis of written arguments and copies of the judgments relied upon. 7. On behalf of the Appellant, it was contended that the promised date of possession within 48 months was subject to force majeure circumstances which were beyond the control of the Appellant for which it was to be entitled to a reasonable extension of time as per Clause 8 B of the BBA. The Complainant was also required to make timely payments of the installments and other charges. It was admitted that there was a delay in the offer of possession; however, the same was ascribed to certain force majeure circumstances for which the Appellant was not liable to be held responsible. It was stated that vide letter dated 13.05.2019, an intimation regarding pre-possession formalities requiring the payment of ₹3,14,368/- had been issued to the Complainant. Thereafter, a final demand letter cum registration information was issued on 01.09.2020. However, the Complainant failed to comply with these demand letters and instead chose to prefer a Complaint before the State Commission. The order of the State Commission is challenged on the grounds that it failed to appreciate that (i) the Complainant was not a consumer since he was a resident of Bharatpur, Rajasthan and had purchased the flat for investment purpose; (ii) that the construction had been completed and a Completion Certificate obtained from the appropriate authority by the Appellant; (iii) the State Commission erred in not appreciating that the Architect Certificate dated 20.03.2020 in respect of Tower B-4 was actually for Tower A-4 where the subject flat of the Complainant is situated; (iv) the Complainant had failed in the payments of dues in respect of the subject flat; (v) the delay in completion was due to force majeure circumstances as there were various orders of different authorities, namely Bansi vs. Gauri Buildwell by the court of Land Management Office and Ex-Officio Revenue Appeal Officer, Alwar, Rajasthan; Bilesh @ Bililo vs. Rajpal by the Court of Sub-Division Officer, Taijara, Alwar, Rajasthan and Naveen Sharma vs. State of Rajsthan & Ors. by the Hon’ble Supreme Court, which adversely impacted the construction of the said project, and (vi) the Appellant had offered possession as per final demand letter cum registration information on 01.09.2020. 8. It was argued on behalf of the Appellant that as per the judgments of the Hon’ble Supreme Court in Supertech Ltd. Vs. Rajni Goyal, (2019) 17 SCC 681, the time for delivery of possession was to be computed by including the delay that occurred due to various legal impediments and the period of interest should close when full Occupancy Certificate had been obtained. It was also argued that as laid down by the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, allottees (of Chart A) who had been offered possession after construction was completed after issuance of Occupancy Certificate were obligated to take possession of the apartment and the Developer was obligated to pay compensation for the period of delay from the date of sanction of the project (reckoned from the date of the Fire NOC) till the date of offer of possession. It was also argued that the Appellant had availed loans to complete the construction of the project and as held by RERA, projects with Completion Certificates should not be considered for refund as it could result in a run on the project. It was, therefore, argued that the State Commission order be set aside and the Complainant be directed to take possession of the subject flat. 9. Per contra, it was argued on behalf of the Complainant that the impugned order is a valid order since the Complaint was filed before the State Commission after waiting for almost three years seeking refund. It was contended that he was a ‘consumer’ under the Act and that the Appellant had failed to discharge the onus cast upon it to prove that the Complainant was engaged in the business of real estate or buying and selling of apartments, as held by this Commission in Kavita Ahuja Vs. Shipra Estates & Jai Krishna Estate Developers Pvt. Ltd. & Ors., I (2016) CPJ 31 (NC) and also in Aashish Oberai vs. Emaar MGF land Limited, CC No.70 of 2015. It was also contended that the delay was not on account of force majeure circumstances since the injunction order 22.10.2013 passed in Bansi vs. Gouresh Buildwell Pvt. Ltd. passed by the Court of Land Management Office and Ex-officio Revenue Appeal Officer, Alwar, Rajasthan, Bilesh @ Bililo vs. Rajpal by the Court of Sub-Division Officer, Taijara, Alwar, Rajasthan stood vacated on 06.11.2013 and 21.09.2015 respectively and in Naveen Sharma vs. State of Rajasthan & Ors. by the Hon’ble Supreme Court on 16.11.2017. It was also argued that the Appellant never conveyed to the Complainant the facts of any force majeure circumstances while accepting the deposits during this period. Reliance was placed on Manoj Kawatra & Anr. vs. Pionner Urban Land & Infrastructure Ltd. and Deepak Agarwal & Anr. vs. Three C Shelters Pvt. Ltd. & Anr., CC No.3879 of 2017 to argue that such reasons for delay cannot be contended to be force majeure circumstances. 10. Reliance is also placed on Malay Kumar Ganguli vs. Sukumar Mukherjee, Criminal Appeal No.1191-1194/2005 wherein it was held that registration under RERA does not in any way bar the proceedings under the Consumer Protection Act. 11. It was also contended that the offer of possession was dated 01.09.2020 since the earlier letter dated 13.05.2019 was only an intimation regarding prepossession formalities and an offer of possession could not have been made by the Appellant before receiving the Completion Certificate in respect of the Tower A-4 which itself was dated 20.03.2020. Therefore, the delay of nearly three years was inordinate and as laid down by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs Govindan Raghavan, (2019) 5 SCC 725 and Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, C.A. No. 6044 of 2019, an allottee cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of the amount paid along with compensation. 12. It was also argued that the ratio of the judgment of the Hon’ble Supreme Court in Abhishek Khanna (supra) was not applicable in the instant case since that judgment had considered the case of allottees in whose case the offer of possession had already been made based upon Completion Certificate obtained at the time of filing of the Complaint before the consumer forum. It was contended that in the case in hand, the Complaint had been filed before the State Commission on 02.08.2019 which was prior to the Completion Certificate that was admittedly obtained by the Appellant on 20.03.2020. 13. From the rival contentions of the parties, it is manifest that there was a delay of nearly three years in the offer of possession by the Appellant to the Complainant. As regards the issue of validity of the Completion Certificate, learned Counsel for the Appellant has drawn our attention to Notification No.P-10(7)/UDD/UDD/2009Part-III whereby the State Government of Rajasthan has authorised empanelled Architects to provide Completion Certificate. Therefore, the contention of the Complainant that the Completion Certificate was not by an authorized entity does not sustain. As regards the issue whether this Certificate pertains to Tower B-4 or A-4 is concerned, the Certificate also makes clear that Tower B-4 is actually Tower A-4 in which flat No.101 of the Complainant is situated. Therefore, this contention of the Complainant also cannot be accepted. 14. The contention of the Appellant that the Complainant is not a consumer cannot be accepted in view of the fact that no evidence has been brought on record to prove that the Complainant had booked the apartment for commercial purpose, i.e. for sale and purchase of the flat for profit. In view of the judgment of this Commission in Kavita Ahuja (supra) the onus to prove the same has not been discharged by the Appellant and therefore, cannot be accepted. The mere fact that the Complainant was a resident of Bharatpur, Rajasthan merits no consideration in this regard. 15. As regards the reliance on force majeure circumstances to justify the delay, learned Counsel for the Complainant has brought out the limited durations for which the injunctions were in force in respect of the legal impediments cited by the Appellant. The same have not been controverted by the Appellant. In any case, no evidence has been brought on record to establish how these events specifically impacted the project ‘Avalon Royal Park’. Therefore, this contention of the Appellant cannot be accepted. 16. The Hon’ble Supreme Court in Govindan Raghavan (supra) has held that an allottee/consumer was entitled to seek refund of the amount deposited by him with the Opposite Party since the Builder had failed to fulfill his contractual obligations of obtaining the Occupancy Certificate and offering possession of the flat to the purchaser within the time stipulated in the Agreement or within a reasonable time thereafter and that the purchaser could not be compelled to take possession of the flat even if it was offered after the grace period under the Agreement expired. 17. The Hon’ble Supreme Court in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor, Civil Appeal No.6044 of 2019” decided on 07.04.2022 has held that compensation by way of interest has to be both compensatory as well as restitutionary and held that interest @ 9% would be fair and just. 18. In view of the foregoing and in the facts and circumstances of the case, it is evident that the deficiency in service on the part of the Appellant qua the Respondents stands established. Therefore, we allow the both the Appeals in part and order as follows: FIRST APPEAL NO.872 OF 2021 (i) The Appellant shall refund the amount of ₹35,97,440/- with interest @ 9% p.a. from the respective dates of deposits till the date of offer of possession, i.e. 01.09.2020 to the Complainant, within two months, failing which the interest payable would be 12% p.a. (ii) Appellant shall also pay the complainant litigation costs of ₹50,000/-. FIRST APPEAL NO.873 OF 2021 (i) The Appellant shall refund the amount of ₹32,83,072/- with interest @ 9% p.a. from the respective dates of deposits, to the Complainant within two months, failing which the interest payable would be 12% p.a. (ii) Appellant shall also pay the complainant litigation costs of ₹50,000/-. 19. All pending IAs also stand disposed of by this order. | 
