1.       The present case is filed under Section 21(a) (1) of the Consumer Protection Act, 1986.

2.       The case of the Complainant is that on 01.05.2006, he booked a three bedroom flat measuring 1855 sq. ft. in “Parsvnath Privilege” project with the Opposite Party, for a consideration of Rs.52,86,750/- and paid an advance of Rs.3,00,000/-.  On 01.05.2006, he further paid a sum of Rs.7,00,000/-. In April 2007, the Opposite Party informed the Complainant that he has been allotted Flat No.T12-301. Thereafter, the Complainant deposited the amount as per following details: -

In May 2007, the Flat Buyer Agreement was executed. According to the Agreement, the construction of the flat was to be completed within 36 months. The Complainant visited the Construction site and found that the Opposite Party had stopped the construction of Tower No.12 after basement roof slab. He also found that the Opposite Party was not granted the license/sanctions from Town Planning Authorities/Municipality/Government authorities for building the residential flats in the name of “Parsvnath Privilege”. The Complainant immediately contacted the Opposite Party to know about the status of the construction but no satisfactory reply was given by the Opposite Party.  On 30.08.2009, the Complainant sent written notice to the Opposite Party requesting for refund of the amount deposited by the Complainant but the Opposite Party did not reply to the same. Aggrieved by the same, the Complainant filed Consumer Complaint No.C-300/2009 before the State Consumer, Delhi. The dispute was amicably settled by the Parties, vide settlement deed dated 17.01.2013. On 25.02.2013, the Complaint was withdrawn by the Complainant on assurance of the Opposite Party that the construction of the flat was going on and the possession of the same would be delivered to the Complainant very soon after making balance payment of the flat. On 11.04.2013, according to the terms of the settlement, the Complainant transferred an amount of Rs.27,75,744.65/- to the account of the Opposite Party.  Thus, on 11.04.2013, the entire cost of the flat stood paid by the Complainant. As the Opposite Party failed to deliver the possession, the Complainant sent notice dated 06.06.2014 seeking refund of the deposited amount but the Opposite Party did not give any satisfactory reply. Alleging deficiency in service on the part of the Opposite Party, the Complainant filed the instant Complaint with the following prayer:-

“a.    Grant a sum of Rs.1,14,89,644/- (towards principal amount of Rs.56,14,482/- and interest of Rs.58, 75,162/- at the rate of 24% per annum) along with pendentlite and future interest at the rate of 24%  per annum till the date of actual realisation of the payment.

b.       Grant sum of Rs.20 lacs towards exemplary damages detailed above in the complaint.

c.       Grant cost of litigation to the complainant.

e.       Any other order, relief or direction which this Hon'ble Commission may deem fit and proper under the facts and circumstances of the case may kindly be passed in favour of the complainant and against the respondent” 

3.       The Complaint was contested by the Opposite Party by filing reply. The Opposite Party took the preliminary objection as to the maintainability of the Complaint. It was contended that the Complainant was not a consumer under Section 2 (1) (d) of the Consumer Protection Act, 1986, as he booked the flat for commercial purpose. The Opposite Party also challenged the Complaint on the ground of pecuniary jurisdiction. It was contended that the Complainant had claimed exorbitant rate of interest of 24% per annum thereby inflating the claim so as to bring the Complaint within the jurisdiction of this Commission. It was stated that the dispute involves complicated question of facts and law and needs elaborate evidence, which cannot be adjudicated in summary jurisdiction and the appropriate Forum is the Civil Court. The Opposite Party also challenged the Complaint on the principle of res judicata. The Opposite Party also stated that the Complaint is barred by limitation. On merit, it was contended that the delay in construction was due to recession in the real estate sector and the Opposite Party had duly communicated the status of the project. At the time of booking, the Complainant was fully aware about the status of construction and approvals. Delay in completion of the project had occurred due to unforeseeable circumstances, beyond the control of the Opposite Party. The super structure of almost all towers in Phase-1 has been completed.  The Complaint is frivolous and vexatious and liable to be dismissed with cost.

4.       The Complainant filed rejoinder in response to the Written Statement denying the statements made by the Opposite Party. The Complainant did not purchase the flat for investment purposes, and claimed that the residence was booked solely for residential purpose in anticipation of having a home in Noida.

5.       Heard the Learned Counsel for the Parties and carefully perused the record. On the issue of maintainability of Consumer Complaint, Learned Counsel for the Complainant submitted that the Opposite Party had not filed any evidence to substantiate the allegation that the Complainant purchased the flat for investment purpose. He relied on the judgments of Hon’ble Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583 and Ankur Goyal v. Rise Project (P) Ltd., CC No. 2149 of 2019. On the issue of pecuniary jurisdiction, Learned Counsel for the Complainant submitted that the relief sought by the Complainant, including the amount of interest and the damages exceeds Rs.1 crores. On merit, Learned Counsel for the Complainant submitted that even after receiving full consideration in 2013, the Opposite Party failed to deliver the possession of the flat till date. According to clause 10 of the Agreement, the construction of the flat was to be completed within 36 months i.e. upto May, 2010, He submitted that the Flat Buyers cannot be made to wait indefinitely for the possession.

6.       Learned Counsel for the Opposite Party submitted the Complainant is not a Consumer as he purchased the flat for investment purpose.  He also submitted that the instant Complaint does not fall within the pecuniary jurisdiction of this Commission. It was also submitted that the Complaint involves complicated question of facts and law and needs elaborate evidence. The appropriate Forum to adjudicate the dispute is the Civil Court and the matter cannot be adjudicated in summary jurisdiction. Learned Counsel further submitted that the Complaint is barred by the principle of res judicata as the Complainant had already filed Consumer Complaint No.300/2009 before the State Commission, Delhi on the same cause of action. On merit, it was submitted that the construction of major portion was completed and the possession would be handed over soon. Delay in construction was due to recession in the real estate sector and the Opposite Party had duly communicated the status of the project to the Complainant. Further, delay in completion of the project had occurred due to unforeseeable circumstances, beyond the control of the Opposite Party.

7.       The dispute between the Parties relates to delay in delivery of possession of the flat. The Opposite Party had not produced any evidence to prove that the Complainant booked the flat in question for investment purpose. In the instant case the subject units are residential dwelling Units and the project is a Residential Housing Project. The Complainant was, therefore, ‘Consumer’ within the meaning of section 2(1) (d) of the Act 1986. On the issue of pecuniary jurisdiction, it may be mentioned that Larger Bench of this Commission in a reference in Renu Singh vs. Experion Developers Pvt. Ltd., CC/1703/2018 and other connected matters decided on 26.10.2011 held that “for the purposes of determination of pecuniary jurisdiction, the rate of interest or period of interest as claim in the complaint alone has to be examined. However, the claim has to be proved in accordance with law and the relief is always subject to law of limitation and rule of estoppel and acquiescence.” In view of this proposition of law, the Complaint falls within the pecuniary jurisdiction of this Commission. This Commission is fully competent to decide the dispute between the buyer and the builder. The contention of the Opposite Party that the matter cannot be adjudicated by this Commission in summary jurisdiction is, therefore, rejected. The next objection relating to maintainability is that the Complaint is barred by the principle of res judicata as the Complainant had already filed Consumer Complaint No.300 of 2009 in the State Commission, Delhi on the same cause of action. It is relevant to mention that before the State Commission the matter was amicably settled by the Parties, vide settlement deed dated 17.01.2013 and the Complaint was withdrawn by the Complainant. The Complaint on the same cause of action is, therefore, maintainable before this Commission. Flat Buyer Agreement was executed in May, 2007 and the possession of the flat was to be delivered within 36 months i.e. upto May, 2010. Thereafter, according to the settlement reached between the Parties before the State Commission, Delhi in CC/300/2009, the Complainant paid the balance amount of Rs.27,75,744.65/- on 11.04.2013. More than 8 years have elapsed, the Opposite Party has not offered the possession. In this connection, Clause 10 (a) of the Agreement is relevant and the same reads as follows: -

“Construction of the flat is likely to be completed within a period of 36 months (Thirty six) months from the date of commencement of construction of the particular Block in which the Flat is located on receipt of all requisite approvals including sanction of building plans, environment clearances, etc. subject to force majeure and restraints/restrictions from any courts/authorities, non-availability of building materials and any circumstances beyond the control of the Developer and subject to timely payments by the Buyer. No claim by way of damages/compensation shall lie against the Developer in case of delay in handing over possession of the flat on account of the said reasons. The Flat shall be deemed to be completed for the purpose of this clause/agreement when the Developer submits application/completion plans to authorities for obtaining completion certificate, which may be for the Complex as a whole or in parts. Possession of the Flat would be given only on clearance of the entries dues payable by the Buyers to the Developer in terms of this Agreement and after execution of the Tripartite Sub-Lease Deed.”

8.       From the above, it is clear that the construction of the flat was to be completed within 36 months. The Opposite Party has not provided any evidence in support of the reasons adduced by the Opposite Party, as to unforeseen and unexpected events which prevented the development of the allotted unit.  The Opposite Parties cannot take shelter of the “Force Majeure” Clause. The reasons cited by the Opposite Parties for the delay of the project, appear to be delaying tactics veiled as “Force Majeure” conditions and seem to be an attempt to wriggle out of its contractual obligations. In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., Civil Appeal No. 3533-3534 of 2017, decided on 12.3.2018, Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him/her, and is entitled to seek refund of the amount paid by him, along with compensation. The reasons stated for force majeure conditions are only delay tactics to handover possession of the Apartment. The Complainant is, therefore, entitled for refund of the amount paid by them. On 06.09.2021, the Learned Counsel for the Complainant as well as Learned for the Opposite Party have jointly informed the Court that the principal amount has already been paid to the Complainant and the matter now remain restricted for the purpose of hearing on the question of rate of interest/compensation/cost of litigation etc. only.

9.       In view of the above, Complaint is partly allowed.  The principal amount stands paid by the Opposite Party. The Opposite Party is directed to pay simple interest of 9% per annum with effect from the respective date of each payment till the date of refund. Payment in terms of this order shall be made within two months from today, failing which the Opposite Party shall be liable to pay interest @ 12% p.a. after expiry of two months.