The brief facts as set out in the Complaint are that Prateek Kumar Jain, (hereinafter referred to as “the Complainant”) booked an Apartment  in a Group Housing Society namely, “Raheja Sampada”  being developed by Raheja Developers Pvt. Ltd. (hereinafter referred to as “the Opposite Party”)  in Sector -92, Gurgaon, Haryana on 06.04.2010 and paid an amount of ₹3,02,766/- towards booking amount. On 01.06.2010, the Complainant obtained a Home Loan from the Federal Bank Ltd. at the floating interest rate ranging from 8.50% to 11.5% p.a.

2.       The Agreement to Sell was executed between the Parties on 20.06.2010 for Apartment No. T2-0910 admeasuring 1370 sq. ft. for total sale consideration of ₹38,90,770/-. As per Clause 4.2 of the Agreement the possession of the Apartment was to be delivered within 36 months from the date of execution of the Agreement meaning thereby latest on or before 20.06.2013. It was further averred that the Complainant has paid an amount  of ₹39,03,138/-, which is more than the total sale consideration i.e. ₹38,90,770/-. On 07.02.2017, the Complainant received a letter of possession demanding an additional amount, after lapse of almost seven years from the date of Booking. The Complainant got issued a Legal Notice dated 05.05.2017 to the Opposite Party, which was not replied by the Opposite Party.  Vexed with the attitude of the Opposite Party the Complainant has approached this Commission seeking direction to the Opposite Party for refund of the entire amount paid, i.e. ₹39,03,138/- with interest @ 18% p.a. from the respective date of payment till the date of realisation,  payment of ₹25,000/- per month towards loss of rent, payment of ₹8,05,560/- towards delay charges, payment of Compensation of ₹10,00,000/- as also the litigation expenses of ₹2,00,000/-.

3.       The Opposite Party filed its Written Version admitting to the Allotment, receipt of the amount of ₹39,03,138/-,  the execution of the Apartment Buyer’s Agreement dated 20.06.2010, possession of the Apartment within 36 months from the date of execution of the Apartment Buyer Agreement subject to Force Majeure conditions. It is stated that the possession was offered to the Complainant on 07.02.2017.

4.       It is averred that this Commission lacks pecuniary jurisdiction as the value of goods i.e. total sale consideration is ₹38,90,770/- which is less than the pecuniary jurisdiction of this Commission i.e. ₹1,00,00,000/-; that the Complainant is not a ‘Consumer’ as defined under Section 2 (1)(d) of the Consumer Protection Act, 1986, as he has  booked the Apartment for speculative gains and not with an intention of personal use; that this Commission has no jurisdiction to entertain the instant Complaint as Clause 15.2 provides that any dispute between the Parties shall be adjudicated under the provision of the Arbitration and Conciliation Act, 1996; that the Complainant has defaulted in the timely payments of dues as per the payment Schedule; that as per Clause 4.2  of the Agreement the delivery of possession was subject to Force Majeure conditions; that a judgment passed by the Hon’ble High Court of Punjab and Haryana banned the extraction of underground water for construction purpose;  delay in approvals and sanctions by Competent Authorities etc. and that all  the aforenoted reasons led to delay in construction, which was beyond the control of the Opposite Party and falls under Force Majeure conditions and all the other averments made in the Complaint are denied and sought dismissal of the Complaint.

5.       Heard the learned Counsel for the Parties and perused the material on Record.

6.       The contention of the Opposite Party that the Complaint is not maintainable on account of pecuniary jurisdiction is untenable as it can be seen from the record that the total sale consideration is ₹38,90,770/-  and as per the principle laid down by a larger Bench of this Commission in “Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Private Limited I (2017) CPJ 1 NC”,  the value of goods and services in addition to the compensation  prayed for has to be considered while ascertaining the pecuniary jurisdiction. In this case the value of goods is ₹38,90,770/-  and the compensation prayed for is refund of the money paid which is ₹39,03,138/-with interest @ 18% p.a. from the date of deposit, loss of rent of ₹21,00,000/-, compensation of ₹10,00,000/-, which far exceeds the pecuniary jurisdiction of this Commission, which is Rupees One crore and above. The next contention of the learned Counsel for the Opposite Party that the Complainant is not a ‘Consumer’ as he has purchased the subject Apartment for commercial gain is not substantiated by any documentary evidence and is completely unsustainable in the light of the judgement of this Commission in “Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31 (NC)”, wherein this Commission has laid down the principle that the onus of establishing that the Complainant was dealing in real estate is on the Opposite Party, which in the instant case they have failed to discharge or file any documentary evidence to establish that the Complainant is an ‘Investor’ and not a ‘Consumer’, therefore we are of the considered view that the Complainant is a ‘Consumer’ as defined under Section 2 (1)(d) of the Act.

7.       The Hon’ble Supreme Court in “M/S Emaar MGF Land Limited vs. Aftab Singh – I (2019) CPJ 5 (SC)”, has laid down the law that an Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Hence, the objection raised by the learned Counsel for the Opposite Party that the clause of Arbitration bars this Commission from entertaining the Complaint is unsustainable. Needless to add, IA/20725/2017, preferred by the Opposite Party seeking direction to dismiss the Complaint as not maintainable and refer it to Arbitration based on Section 8 of the Arbitration and Conciliation Act, 1996, has already been dismissed vide order dated 16.08.2018.

8.       The contention of the Opposite Party that Clause 4.2 specifies that the delivery of possession is subject to Force Majeure conditions and that there were several reasons and circumstances beyond the control of the Opposite Party such as judgment of the Hon’ble High Court of Punjab and Haryana, whereby ground water extraction for construction use was banned and there were delay by the Statutory Authorities in issuing necessary approvals and sanctions. All these aforenoted reasons do not fall within the ambit of reasons beyond their control and cannot be construed to be any substantial reason and definitely not a Force Majeure condition.  

9.       The Possession of the Apartment was to be delivered within 36 months from the date of execution of the Apartment Buyer Agreement i.e. 20.06.2010, which ended on 20.06.2013 and admittedly the Opposite Party has offered possession on 07.02.2017. No material has been produced by the Opposite Party to prove that the completion of construction and offer of possession has been delayed on account of reasons beyond its control, there is no justification for the said delay. Keeping in view the judgment of this Commission in “Emmar MGF Land Ltd. & Ors.  vs. Amit Puri, II (2015) CPJ 568 NC”, wherein it was laid down that after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest

10.     At this juncture, we find it a fit case to place reliance on the recent judgment of the Hon’ble Supreme Court in “Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC)”, wherein 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 is 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.”

11.     Taking into consideration all the aforentoed facts and circumstances, we are of the considered view that the Complainant is entitled to the refund of the amount paid with compensation to be calculated at the same rate of interest @ 10% p.a. from the respective dates of deposits till the date of realization. It is relevant to note that this compensation  @ 10% p.a. is being awarded to meet the ends of justice specially keeping in view the fact that there is a specific pleading by the Complainant in para 4 of the Complaint that the Complainant has obtained a Home Loan and paying regular EMIs to Bank, which was not disputed by the Opposite Party and finally taking into consideration the principal of restitutio in integrum, which specifies that the aggrieved person should necessarily be compensated for the financial loss suffered due to the event and get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. Hence, we are of the view that awarding compensation @ 10% p.a. is not only reasonable but also justified as only compensation is awarded by way of damages and no additional compensation is awarded.

12.     Hence, this Complaint is allowed in part directing the Opposite Party to refund the principal amounts with compensation @ 10% p.a.  from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to the Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract compensation @ 12% p.a. for the same period.