The brief facts as set out in the Complaint, are that the Complainant who was residing with her husband in U.A.E, entered into a Construction Agreement on 23.01.2014 with the Opposite Party Developer (hereinafter referred to as “the Developer”), namely, Puravankara Projects Limited (now known as Puravankara Limited) for purchase of a three Bed Room Apartment bearing No. SC-302 on the Third Floor in the SC Block/Wing of the Residential Complex known as “Purva Seasons“, to be constructed and developed by them on a Schedule A Property, i.e. the residentially converted property being Municipal No. 92, BBMP Ward No. 83, C.V. Raman Nagar, PID Number 83-53-92 of Bruhat Bangalore Mahanagara Palika, Bangalore (hereinafter to be referred to as “the BBMP”). It was represented and assured to the Complainant by the Developer that the Bangalore Development Authority (hereinafter to be referred to as “the BDA”) vide its Resolution dated 29.07.2011 has approved the Development Plan and BBMP vide L.P.No.29/2006-2007 (modified) dated 03.10.2011 has permitted the construction of multi-story Complex on the said Schedule A Property together with Parking Area, Common Areas, utilities and services for the beneficial enjoyment of the Occupants of Residential Apartments. Subsequent to the Construction Agreement, an Agreement for Sale was also executed between the parties on 23.01.2014 containing the details of the area of the booked Apartment No. SC-302, (i.e. Schedule B Property) and similar terms and conditions of the Construction Agreement. The total sale consideration of the Apartment was ₹74,06,628/- out of which ₹13,16,415/- were paid by the Complainant at the time of execution of the Construction Agreement and the balance amount was to be paid in instalments as per Construction Linked Plan. According to the Construction Agreement, the Apartment was to be constructed by the Developer as per the Sanctioned Plan and was to be handed over, complete in all respect, to the Complainant on or before 30.04.2016 or on intimation of possession whichever is earlier extendable by six months to complete the common areas and amenities subject to Clauses 5(a) and 12. The Clause 5(a) of the Construction Agreement states that on any default by the Complainant in making payment of any instalment of Cost of Construction and other charges on the respective due dates, the Opposite Party shall be at its sole discretion to continue with the Contract and claim the amounts in default/arrears with interest @2% per month from the date of default till date of payment and also for which they shall be entitled to a reasonable extension of time for delivery of the Schedule ‘’B” Apartment. The Clause 12 of the Construction Agreement provides that the date of handing over of the possession of the Apartment is subject to variation on account of force majeure or acts of God or Government Orders/Restrictions/Controls or any other strike including transport strike and other reasons which are beyond the control of the Developer. It is averred in the Complaint that possession of the Apartment was not handed over by the Developer to the Complainant by 30.04.2016 and despite repeated requests from May 2016 to February, 2018, there was no explanation/reason coming out from the Developer for the delay in handing over the possession. It is stated that all the instalments and applicable charges/taxes due were duly paid to the Developer even in advance and there was no breach of any condition of the Construction Agreement or Agreement for sale by them.

2.       On 13.03.2018, after visiting the site, the husband of the Complainant wrote to the Developer that there were many snags in the Apartment and despite repeated emails there was no response from the Developer. He also requested for compensation for delay in handing over the possession of the Apartment on the part of the Developer. By email, dated 14.03.2018, the Developer fixed the date of inspection of site on 21.03.2018, however, the same was changed, time and again, and there was also no intimation regarding the actual date of handing over the possession despite the several emails sent by the Complainant to the Developer from March 2018 to July 2018. Further, vide letter dated 25.07.2018, the Complainant complained to the Developer about using of engineer wood in place of teak wood and low quality sanitary wares and materials in the construction. It was also alleged that specifications of the material used, were not providing to her despite repeated requests. Complainant requested the Developer to replace the low quality fixture and fittings with standard one and to pay the compensation for delay in completing the Project. The Complainant also stated that another Project called “Purva 270” has been launched by the Developer on the Schedule A Property without obtaining necessary approval of the Development Plan from BDA and permission for construction of multi-story complex, i.e. “Purva 270” from BBMP.

03.     Vide email dated 31.07.2018, the Complainant complained to the Developer that they were not cooperating to her in inspection of the Apartment which was postponed again and again without any reason and caused hardship to her representative in Bengalore. According to the Complainant, despite making the entire payment as per latest Statement of Account dated 18.07.2018 issued by the Developer, they have failed to hand over the possession complete in all respects and as per specifications provided under the Construction Agreement and Agreement to Sale. The Developer is still not in position to inform the exact date of delivery of possession of the booked Apartment even the entire payment has been made. It is further stated that the Developer was charging interest @2% p. m on account of delay in payment of any instalment by the Complainant and as such they are equally liable to pay the same rate of interest on the amount deposited with them for the period of delay in handing over the possession. Hence, alleging deficiency in service on the part of the Developer in using sub-standard material in construction and in rectifying the snags in the Apartment, the Complainant has filed the present complaint with the following prayers:-

(i)      admit the present Complaint and direct the Respondent to handover the possession of the three bed room Apartment bearing No. SC-302 on the third floor in the SC Block/Wing of the Residential Complex known as “Purva Seasons” – a Schedule B property completed in all respect in accordance with the specification detailed under Construction Agreement dated 23.01.2014 and remove the defect pointed out during inspection; 

OR

(ii)      direct the Respondent to refund the total amount of ₹1,15,53,956/- along with interest @18% p.a. w.e.f. date of execution of agreements till the date of payment;

(iii)     direct the Respondent to pay interest @ 18% p.a. on ₹1,15,53,956/- w.e.f. 23.04.2016 (date of handing over of possession) till the date of actual payment;

(iv)     direct the Respondent to pay an amount of ₹10,00,000/- as compensation towards mental and physical agony and harassment caused by the Respondent;

(v)      declare that the Project “PURVA-270” on Schedule A Property is illegal and pass a decree of permanent injunction against the Respondent thereby restraining it to construct any residential complex (Purva-270) on Schedule A property described under Construction Agreement dated 23.01.2014;

(vi)     pass a decree of mandatory injunction thereby directing the Respondent to demolish residential complex (PURVA-270) on Schedule A Property described under Construction Agreement dated 23.01.2014;

(vii)    direct the Respondent to pay further amount of ₹20,00,000/- on account of nuisance/obstructions in the easement rights of the Complainant and obstructions caused to the natural light/air to the apartment bearing No. SC-302;

(vii)    pass any other such order(s) as this Hon’ble Commission may deem fit and proper in peculiar facts and circumstances of the present case;

4.       Upon notice, the Complaint has been contested by the Developer by filing its Written Statement wherein the preliminary objections have been raised that (i) the Complainant is a not a “Consumer” as defined in Section 2 (1) (d) of the Consumer Protection Act, 1986 (for short, the “Act”) as the Complainant herself has admitted in the Complaint that she along with her husband is residing in U.A.E and her husband is working as a Managing Director of a Group of Companies owned by the Royal Family in U.A.E. Hence, it is manifest that the Apartment has been purchased by the Complainant for investment purpose for earning profits; and (ii) in view of the law laid down by this Commission in Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India) Ltd. – Consumer Complaint No. 296 of 2011 – decided on 03.07.2012, the Complaint is not maintainable as the Complainant has invested the amount in the Apartment to obtain profits from Real Estate speculations which is beyond the purview of the Act. 

05.     On merits, it is pleaded by the Developer that they have obtained Development Plan approved from BDA and a Sanction Plan from BBMP for  “Block A to H” on the Schedule A property;  as per marketing initiative, Block ‘A to D’ are called as “Purva Seasons” and Block ‘E to H’ are called as “Purva 270” and both combined together called as “Purva Seasons”; the Block called “Purva 270” is a part of single Sanction Plan and as such there is no violation of any of the rights of the Complainant; construction of “Purva 270” is in accordance with the Development and Sanction Plan; as per Clause V (9) of the Construction Agreement, the Complainant has no right whatsoever to obstruct or hinder the progress of the construction of the Building or any part thereof or any part of additional development; they are always ready to give possession of the Apartment to the Complainant; though the amount of ₹1,15,53,956 has been paid by the Complainant but she has yet to clear the payment of possession charges amounting to ₹10,56,814/- which includes infrastructure, preferential charges and advance maintenance; the Registration Charges and ST arrears are also pending;.  the Complainant is not entitled for taking possession of the Apartment unless all the dues are cleared by her; the quality of the material used in construction of the Apartment is as per the specifications and of highest standard; the Occupancy Certificate has already been obtained by them on 17.05.2017 for the said Project from BBMP and they are willing to hand over the possession to the Complainant; a joint inspection along with nominee of the Complainant, was conducted to their satisfaction and the snags pointed out, have been removed in the Apartment; vide email dated 12.09.2017 and 16.09.2017, the Complainant was offered possession of the Apartment for initiating interiors and the registration date was also fixed at 26.09.2017; there was no compensation clause in the Construction Agreement as well as Sale Agreement and, hence, the Complainant is not entitled for any compensation on any account. All other averments made in the Complaint have been specifically denied by the Developer and prayed dismissal of the Complaint with exemplary costs.  

06.     The Complainant has filed her Rejoinder denying all the rival contentions advanced by the Developer in their Written Version and has reiterated the averments made in the Complaint.

07.     Since, none was present on behalf of the Developer on the date the matter was concluded for arguments, we have heard the Learned Counsel for the Complainant at some length and perused the Written Submissions filed by both the parties.

08.     In brief, it is the Complainants’ case that despite paying entire consideration as per the Construction Agreement dated 23.01.2014, the Developer has miserably failed to hand over possession of the booked Apartment within the prescribed time and has also not paid any compensation towards delayed delivery. 

09.     Now adverting to the stand taken by the Developer that the Complainant is not a “Consumer” and is only an “investor”, in our considered view, it does not hold water in the light of the judgment of this Commission in Kavita Ahuja vs. Shipra Estates I - (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case. Therefore, we decide this issue in favour of the Complainant.

10.     As per the Construction Agreement dated 23.01.2014, the possession of the Apartment, complete in all respects, was to be handed over to the Complainant by 30.04.2016 or on intimation of offer of possession whichever is earlier extendable by six months to complete the common area and amenities, that means, latest by 30.10.2016. As per the narration of the Developer, they obtained Occupation Certificate on 17.05.2017 and vide emails dated 12.09.2017 and 16.09.2017, they requested the Complainant to take the possession of the Apartment to initiate interiors and the Registration date was fixed as 26.09.2017 which fact itself shows that Apartment was not even ready for possession till that period. Admittedly, a joint inspection was connected by the parties on 21.03.2018 and certain snags in the Apartment were noticed which according to the Complainant has not been rectified so far. Vide email, dated 16.07.2018, the Developer has informed to the Complainant that the Apartment will be ready by 20^th July, 2018 which means, the Apartment was not ready for delivery till the said date. Certainly, there is delay on the part of the Developer in completing the construction of the Project and offering physical possession of the Apartment, complete in all respects, to the Complainant. Developer has completely failed to substantiate by means of documentary evidence that the Project was delayed due to Force-Majeure reasons.

11.     Though the Developer is still ready and willing to hand over the possession of the booked Apartment to the Complainant, a valuable right has arisen in her favour by efflux of time and due to failure of the Developer to give possession for about three/four years from the stipulated date of possession, to take possession of the subject Apartment at this belated stage or to seek refund of the entire amount deposited by her with reasonable compensation. In Emmar MGF Land Ltd. & Ors. vs. Amit Puri - II (2015) CPJ 568 NC, this Commission has held that after the promised date of delivery, it is the discretion of the Complainant/Buyer whether to accept the offer of possession, if any, or seeks refund of the amounts paid, with reasonable interest. We are of the opinion that the Complainant cannot be made to wait indefinitely for the delivery of the possession when she had already paid almost the entire consideration. In such circumstances, it is well within the Complainant’s right to seek for refund of the principal amount with interest and compensation. The primary purpose of a Consumer in booking a residential Flat/Apartment which the Builder is to construct for him/her, is to start living in that house on or about the date committed to him/her by the Builder for delivering possession of the said Apartment. If the Builder fails to comply with the contractual obligation and at the same time, is unable to show that the delay in completion of the said Apartment and offering its possession to the Consumer is on account of circumstances beyond their control, this would constitute deficiency on the part of the Builder/Service Provider in rendering services to the Consumer. If we accept the contention that the Builder can indefinitely postpone and delay the construction of the booked Apartment and the Buyer has no option but to wait till the Builder decides to complete the construction and offer possession to him/her, that would be nothing but a travesty of justice and result in a situation where the Buyer is left at the mercy of the Builder, without recourse to an appropriate legal remedy. Such an interpretation, if taken, is bound to defeat the very objective behind the enactment of the Consumer Protection Act, as far as housing construction is concerned. According to us, wherever the Builder commits a particular date or time frame for completion of the construction and offering possession to the Buyer, they must necessarily honour the commitment made by them, though a minor delay may not constitute deficiency in the service rendered by them to the Buyer. Of course, if the Builder is able to show that the delay in completion of the construction and offering possession to the Buyer is attributable wholly to the circumstances beyond its control, that may not be a case of deficiency in the services rendered to the Consumer.

12.     At this juncture, we find it a fit case to place reliance on the recent judgment of the Hon’ble Apex Court in the case of “Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors.” - Civil Appeal No. 5785 / 2019 & other connected Appeals,  wherein it has been held as under:-

“        The Developer made an alternate offer of allotment of apartments in Phase 1 of the project. The allottees are however not bound to accept the same because of the inordinate delay in completing the construction of the Towers where units were allotted to them. The Occupation Certificate is not available even as on date, which clearly amounts to deficiency of service. The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them, nor can they be bound to take the apartments in Phase 1 of the project. The allottees have submitted that they have taken loans, and are paying high rates of interest to the tune of 7.9% etc. to the Banks.”

Consequently, we hold that the allottees in Chart B are entitled to refund of the entire amount deposited by them.”

13.     We further place reliance on the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC,  in which the Hon’ble Apex Court has observed as hereunder:-

          “.....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.”

14.     In the instant case also, the Complainant cannot be made to wait indefinitely as the possession of the Apartment has not been handed over to her so far and the Opposite Party Developer is enjoying the benefits of her hard-earning money deposited with it.  Even though in the main relief, the Complainant has sought for possession of the Apartment in the Complaint and alternatively she has claimed refund of the amount deposited by her along with interest and compensation, but as the Opposite Party Developer has failed to deliver the possession of the Apartment to the Complainant latest by 30-10-2016, i.e. the stipulated period with grace period in the Agreement and more than 3 years have passed but the possession has not been given and further the Complainant cannot be asked to wait any more, she is entitled for refund of the deposited amount along with reasonable interest/compensation.

15.     Now, the question which arises for our consideration is how much interest/compensation is to be paid to the Complainant on the amount deposited by her with the Opposite Party Developer. Though, it is the Complainant’s case that for any default, the Opposite Party charged interest @ 24% p.a. from the buyers, having regard to the fact that the Banks have lowered the interest rate and the Hon’ble Supreme Court has been awarding interest keeping in view the current market situation and the recent decline in the cost of borrowing and return on the investments made with the Banks, we are of the considered view that the compensation in the form of simple interest @ 9% per annum to the Complainant, would meet the ends of justice.

16.     Hence, for all the afore-noted reasons, the Complaint is partly allowed and disposed of along with pending IAs, if any, with the following directions:

(i)      the Opposite Party Developer shall refund the entire amount deposited by the Complainant along with compensation in the form of simple interest @ 9% p.a. from the respective dates of deposits till the date of realisation, within a period of 8 weeks  from the date of passing of order failing which they shall be liable to pay compensation @ 12% p.a for the same period.

(ii)      the Opposite Party Developer shall also pay ₹50,000/- as costs of litigation to the Complainant.