Order dated 07.04.2014 passed by the State Consumer Disputes Redressal Commission, (in short ‘the State Commission’) in CC No.56 of 2011 has been challenged in two appeals, appeal No. 301 of 2014 filed by the opposite parties/M/s.Unitech Ltd. & Ors. and appeal No.926 of 2015 filed by the complainant/Tara Devi.  Similarly, the order dated 7.4.2014 passed in CC No.57 of 2011 has been challenged in two appeals, appeal No.302 of 2014 filed by the opposite parties/M/s. Unitech Ltd. & Ors. and appeal No.927 of 2015 filed by complainant/Rajesh Kumar Agarwal. 

2.      Brief facts of the case are that complainant in CC No.56 of 2011 is the wife of complainant/Rajesh Kumar Agarwal in CC No.57 of 2011.  The complainants entered into an agreement for purchase of two flats from the opposite parties, Unitech Ltd. & Ors. The agreement dated 13.06.2006 was entered between the parties.  The last instalment was deposited by the complainants on 02.03.2009.  The complainants found that there was no progress in the construction. When the complainants visited the site they were informed that there was no possibility of construction being completed in the near future.  Then the complainants vide letter dated 28.10.2009 requested the opposite parties to refund the deposited amount.  Getting no response, the complainants filed a consumer complaint Nos.56 & 57 of 2011 before the State Commission for refund of the deposited amount along with interest and compensation.

3.      The complaint was resisted by the opposite parties by filing a written statement.  It was stated by the opposite parties that they have never assured that the possession will be delivered by June 2009.  However, Clause 4a(i) of the agreement stipulates that if there is any delay on account of force majeure beyond the control of the opposite parties then no compensation can be claimed by the complainants.  The State Commission after considering the submissions of both the parties allowed the complaint No.56 of 2011 by ordering the opposite parties to refund the deposited amount of Rs.53,07,404/- along with interest @ 10% with effect from the respective dates of deposit till the date of actual payment.  An amount of Rs.25,000/- was also awarded as cost of litigation.  Similarly, the State Commission allowed the complaint No.57 of 2011 by ordering the opposite parties to refund the deposited amount of Rs.54,19,683/- along with interest @ 10% with effect from the respective dates of deposit till the date of actual payment.  An amount of Rs.25,000/- was also awarded as cost of litigation.

4.      The present appeals have been filed against these orders of the State Commission.

5.      For the sake of convenience the parties will be addressed as complainants and opposite parties.

6.      Heard the learned counsel for the parties and perused the record.

7.      The learned counsel for the opposite parties stated that the State Commission has not considered the objections raised by the opposite parties that the complainants are not the consumers.  They have purchased more than one flat and it is an established principle of law that if more than one flats are booked, it will be deemed that the flats have been purchased for commercial purpose.  The complainants have not paid the instalments in time and therefore, they are not entitled to allege any deficiency on the part of the opposite parties.  It is very much clear that until all the instalments are paid, the possession cannot be given to the complainants.  Thus, the order of the State Commission is not consistent with the provisions of law and needs to be set aside.  It was further argued by the learned counsel that an interest @10% p.a. has been awarded by the State Commission on the deposited amount, which is on a higher side looking at the current bank rates. The learned counsel for the opposite parties further stated that the complainants have filed their appeals with a huge delay of 559 days and they are liable to be rejected on the ground of limitation alone.  Moreover, the State Commission has awarded interest @ 10% p.a. which is also mentioned in the Clause 4 e of the agreement.  Parties are bound by the agreement.  Here there is no justification for any increase in the rate of interest. 

8.      Learned counsel for the complainants has stated that as the possession is not delivered on the agreed date, the complainants have full right to demand the refund of the deposited amount.  The complainants had found out that there was no progress in the project and hence it was not possible for the opposite parties to give the possession in the near future.  Even today the opposite parties are not in a position to give firm date for possession.  In this scenario, the State Commission has rightly ordered refund of the deposited amount.  However, the State Commission has awarded an interest of 10% p.a., which is not commensurate with the orders of this Commission passed in similar matters.  The learned counsel stated that complainants are entitled to get 18% interest as has been granted by this Commission in some matters.  The learned counsel pointed out that his contention is supported by the judgment of Apex Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, wherein the Hon’ble Supreme Court inter alia observed and held as under:

     “However, the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure.....

…Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.

That compensation cannot be uniform and can best of illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher.”       

9.      It was requested that rate of interest be increased to 18% and with this modification the order of the State Commission be confirmed.  In respect of delay in filing the appeals, the learned counsel for the complainants stated that the delay has occurred due to the legal consultation and identifying a counsel to file the appeal at the National Commission.  It was requested that the complainants have a very strong case on merits and therefore, the delay in filing the appeals may be condoned. 

10.    I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the material on record.  It is clear from the record that the agreement was signed on 13.06.2006, wherein the possession was to be delivered after 36 months from the date of agreement and possession was not given on that date.  When there was no construction seen on the project site they have requested the opposite parties to refund the deposited amount.  When the construction is not ready and the possession cannot be given even within a reasonable period after the stipulated date in the agreement, complainants can definitely demand the refund of the deposited amount.  So far as the question of complainants being “consumer” is concerned, it is to be noted that the complainants are husband and wife and they have booked two flats.  Moreover, this Commission in the following cases has held that complainants would not be treated as purchasing the flats for commercial purpose until it is shown that they are engaged in trading of such flats:

11.    In Aashish Oberai  Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14.09.2016, this Commission held as follows:-

“In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose”.

It was also observed that:-

“It would be pertinent to note that there is no evidence of the complainant having purchased and then sold any residential property.  Therefore, it would be difficult to say that he was engaged in the business of the buying and selling of the property or that villa in question was booked by him for speculative purposes”. 

12.      In another case, Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd.,  I(2016) CPJ31(NC), wherein three flats were booked by the complainant, this Commission held the complainant to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and held as follows:-

“In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses.  If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose.  A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment.  He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc.  Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him.  That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).

7.      Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.

8.  As observed by the Hon’ble Supreme Court in Laxmi Engineering Works (supra) what is a ‘commercial purpose’ is a question of fact to be decided in the facts of each case and it is not the value of the goods that matters but the purpose for which the goods brought are put to. The same would be equally applicable to for hiring or availing services.

9.  In any case, it is not appropriate to classify such acquisition as a commercial activity merely on the basis of the number of houses purchased by a person, unless it is shown that he was engaged in the business of selling and purchasing of houses on a regular basis. If, for instance, a person has two-three children in his family and he purchased three houses one for each of them, it would be difficult to say that the said houses were purchased by him for a commercial purpose. His intention in such a case is not to make profit at a future date but is to provide residential accommodation to his children on account of the love and affection he has for his children. To take another example, if a person has a house say in Delhi but he has business in other places as well and therefore, purchases one or more houses at other places where he has to live presently in connection with the business carried by him, it would be difficult to say that such acquisition is for commercial purpose.  To give one more example, a person owning a house in a Metropolitan city such as Delhi, or Mumbai, may acquire a house at a hill station or a place, which is less crowded and more peaceful than a Metropolitan city, in my view, it cannot be said that such acquisition would be for commercial purpose.  In yet another case, a person may be owning a house but the accommodation may not be sufficient for him and his family, if he acquires one or more additional houses, it cannot be said that he has acquired them for commercial purpose.  Many more such examples can be given.  Therefore, it cannot be said that merely because of the complainant had agreed to purchase three flats in the same complex the said acquisition was for a commercial purpose”. 

13.    This Commission, in Rajesh Malhotra & Ors. Vs. Acron Developers & 2 Ors., First Appeal No. 1287 of 2014, decided on 05.11.2015 has held as follows:-

“12.     Therefore, in order to determine whether the goods are purchased for commercial purpose, the basic pre-requisite would be whether the subject goods have been purchased or the services availed of with the prime motive of trading or business activity in them, for the purpose of making profit, which, as held in Laxmi Engineering (supra) is always a question of fact to be decided in the facts and circumstances of each case”.

14.    From the above judgments of this Commission, it is quite clear that the complainants are covered under the definition of ‘consumer’ in the present case as well. 

15.    From the above examination, it is concluded that the complainants are consumers and the deficiency on the part of the opposite parties in not delivering the possessions of the booked flats in time as stipulated in the agreement is proved.  In this situation, the complainants are definitely entitled to refund of their deposited amounts.

16.    Coming to the question of interest, it is seen that the State Commission has awarded interest @10% p.a. from the respective dates of deposits till the date of actual payment.  It is seen that the clause 4e of the agreement reads as follows:-

“Default:

If for any reason the Developer is not in a position to offer the Apartment altogether, the Developer shall offer the Allottee(s) an alternative property or refund the amount in full with Simple Interest @ 10% per annum without any further liability to pay damages or any other compensation on this account.”

17.    From the above, it is evident that the parties have already accepted that 10% interest shall be the compensation in the event of non-delivery of possession within time.  As the interest ordered by the State Commission is supported by the agreement entered into between the parties, I do not find any reasons to interfere with the order of the State Commission in this regard. 

18.    It is seen that the complaints had filed their appeals with delay of 559 days.  I have gone through the application for condonation of delay.  The reasons mentioned relate to delay in obtaining legal advice and in finalising the counsel to file the appeal.  Obviously these are not the reasons which qualify for making sufficient cause to justifying the condonation of such huge delay. Special limitation periods have been prescribed under Consumer Protection Act, 1986 for speedy disposal of consumer disputes. Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras.”

19.   Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackal  Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme Court observed:-

         “4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).

  5.    In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.      

6.      Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay”.

20.  Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that:-

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence”.

21.    In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court observed:-

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

22.    The valuable rights have accrued to the opposite party and the opposite party should not suffer for ignorance or wrong understanding of the order by the complainant.  There is huge delay in filing the appeal and the averments made in the application for condonation of delay filed before the State Commission are not convincing and the State Commission has rightly dismissed the appeal on the ground of limitation.

23.    From the above discussion, I do not find any force in any of the appeals and all the four appeals Nos.301 of 2014, 302 of 2014, 926 of 2015 & 927 of 2015 are dismissed.