PER MR SUBHASH CHANDRA, MEMBER

The present Consumer Complaint has been filed under Section 21 read with Section 12 (1) (a) of the Consumer Protection Act, 1986 by Complainants against Opposite Parties i.e., Supertech Limited and Sarv Realtors Private Realtors, in relation to the Project “Supertech Hues” situated at Sector 68, Gurgaon, Haryana. 

2.     The facts leading upto the present Complaint are that the Complainants had booked a Unit in the project “Supertech Hues” situated at Sector 68, Gurgaon, Haryana which was being developed by Opposite Party No. 1. On 13.10.2013, the Complainants had paid a booking amount of Rs.6,00,000/-. On 23.09.2014, OP No. 1 executed the Buyer Developer Agreement and allotted a Unit bearing No. 0103 to the Complainants. As per clause 24 of the Agreement, possession of the Unit was to be delivered to the Complainants in 42 months, i.e. by April 2017 with an additional grace period of 6 months, i.e. latest by October 2017. On 11.09.2014, a Tripartite Agreement was executed between the Complainants, OP No. 1 and HDFC bank and accordingly, HDFC bank had sanctioned a loan of Rs.75,00,000/- to the Complainants vide loan agreement dated 30.09.2014 and the entire loan amount was disbursed by HDFC bank on 19.01.2018.  As per the Complainants, they regularly followed up with OP No. 1 regarding the progress of the project and were assured that the construction was going on as per schedule. However, contrary to the assurances of OP No. 1, possession of the Unit was not delivered by the stipulated date. As per the ‘Statement of Account’ issued by OP No. 1, as on January 2018, OP No. 1 had collected an amount of Rs.91,83,830/- from the Complainants in spite of which possession was not delivered. It is also submitted that that the project had been transferred to OP No. 2, which was impleaded as a necessary party.

3.     Aggrieved, the Complainant is before this Commission with following prayer:-

“ a) Direct the Opposite Party(s), jointly or severally, for an immediate 100% refund of the total amount of Rs.91,83,830/- (Rupees Ninety One Lakh Eighty Three Thousand Eight Hundred Thirty Only) paid by the Complainants along with a penal interest of 18% per annum from the date of receipt of each payment made to Opposite Party No. 1;

b) Direct the Opposite Party(s), jointly or severally, to pay compensation of Rs.5,00,000/- (Rupees Five Lakhs Only) to the Complainants for the mental agony, harassment, discomfort and undue hardship caused to the Complainants as a result of the above acts and omissions on the part of the Opposite Party(s);

c) Direct the Opposite Party(s), jointly or severally, to pay a sum of Rs.1,00,000/- (Rupees One lakh Only) to the Complainants towards litigation costs; and

d) That any other and further relief in favour of the Complainants as the Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.”

4.     On behalf of the OP it is admitted that while the complainant had in fact booked the said unit and that the Buyer – Developer Agreement was entered into followed subsequently by the Tripartite Agreement between the Buyer (Complainant), Developer and HDFC Bank, the Developer had endeavoured to complete the project including the said unit. However, due to events covered by the force majeure clause, it had been prevented from completing the same.

5.      Parties led their evidences by way of affidavits.

6.     We have heard the learned counsels for the parties and carefully perused the records. It was contended by the learned counsel for the Complainants that the Complainants had booked the Unit for their own residential purpose and have not availed the services of the Opposite Party No. 1 for commercial purpose. They further stated that the project is still far from completion and that there is no likelihood of getting possession of the Unit in the near future. It was also contended that OP No.1 failed to fulfil its obligation and pay HDFC Bank the EMIs due from October 2018, thus putting the Complainants in a financially precarious situation as they are now constrained to pay the EMIs as well as monthly rentals. The Complainants submitted that none of the circumstances resulting in inordinate delay were beyond the control of the OP. It is submitted that HDFC Bank is a necessary party to these proceedings and they are not made a party. It is also contended that the complainant had defaulted in making payments. Finally, it is contended that the matter is different to the case cited by the complainant in Ankur Saxena vs M/s Supertech Ltd., in CC no. 1055 of 2018.

7.     The Learned Counsel for the OPs has contended that the Complainants are not ‘Consumers’ as they are investors who applied for allotment of Unit in question in order to obtain better returns and appreciation in value. It was further contended that the delay in completion was due to force majeure reasons such as failure by government agencies to provide basic infrastructure facilities such as roads, sewerage line, water and electricity supply etc.; delay in grant of necessary approvals by competent authorities and; disruption causes by passing of high tension cables through the project site. It was averred by the OPs that the aforementioned reasons are all covered by the ‘Force Majeure’ exception in the Builder Developer Agreement and therefore, they cannot be held liable for delay in completion of the project.

8.     Contrary to the averment of the OPs, the Complainants have stated in their pleadings that they had purchased the Unit in question for residential purpose. It is contended that the burden to prove that the Unit was purchased for a ‘commercial purpose’ falls on the OPs.

9.     No evidence has been furnished by the OPs to show that the Complainants booked the Unit to invest in real estate or that they are engaged in the real estate business.

        In Sanjay Rastogi v BPTP Limited and Anr., CC No.3580 of 2017, it has been observed by this Commission as under :-

“It is for the OP to prove otherwise. Two, commercial purpose requires that the complainant be shown to be in the business of buying and selling flats. No attempt has been made to prove this. Merely buying a flat, even if it be with a view to sell at a later date, is not commercial purpose. After all, a person can buy a flat and sell it subsequently, for a whole variety of reasons. This by itself would not make him a non-consumer. Therefore, the objection of the OP is found completely baseless and is accordingly rejected.”

        Also in Lilavati Kirtilal Mehta Medical Trust V M/S Unique Shanti Developers & Ors., Civil Appeal No. 12322 of 2016, the Hon’ble Supreme Court has observed as under: -

“5…This does not mean, however, that in every case a negative test has to be adopted wherein any activity that does not fall within the ambit of ‘earning livelihood by means of self-employment’ would necessarily be for a commercial purpose…

Ultimately, whether or not a person is a consumer or whether an activity is meant for a commercial purpose will depend upon the facts and circumstances of each case. It may be the case that a person who engages in commercial activities has purchased a good or availed of a service for their personal use and consumption, or for the personal use of a beneficiary, and such purchase is not linked to their ordinary profit-generating activities or for creation of self-employment. Such a person may still claim to be a ‘consumer.’”

The contention of the OPs that the Complainants are not consumers, therefore, is untenable.

10.   The OPs have also contended that they had merely ‘endeavoured’ to complete the construction of the Unit within 48 months and that no equivocal promise was made to prospective buyers that the possession of the Unit will be delivered at the end of a particular period.

11.   The next leg of the OPs’ defence was that the delay was on account of circumstances which fell within the purview of the ‘Force Majeure’ clause and therefore, no deficiency of service can be attributed to them.

12.   The contentions of the OPs are unsustainable as it is not substantiated by means of any evidence that the project was delayed by events beyond their control.  OPs have not adduced any evidence to show a nexus between such circumstances and the delay. Such a defence is merely an attempt by the Opposite Parties to wriggle out of their contractual obligations. The decisions of the Hon’ble Supreme Court and of this Commission, discussed above, settle the law that delays on account of grant of approvals and other obstructions are expected business exigencies and would not have the effect of frustrating the contract.

13.   The Hon’ble Supreme Court, in NBCC (India) Limited V Shri Ram Trivedi Civil Appeal No 274 of 2020, while rejecting a similar argument had noted as under:

“The expression ‘endeavour’ meant that the appellant would make an earnest effort to hand over possession by that date. Even if the expression does not mean an absolute commitment to hand over possession on or before a specified date, this expression has to be read in the context of the entirety of the clause. To construe the expression as leaving the date for handing over possession indefinite and at the absolute discretion of the developer would leave the purchaser at the mercy of the builder. Clause 20 must be construed to require the builder to make all reasonable efforts to comply with the duty to hand over possession by the stipulated date”.

The Court further observed that the appellant “being an experienced developer, must be conscious of routine delays caused by business exigencies. This would not frustrate the contract or absolve the appellant of the obligations assumed under the terms of the agreement.” There is, however, a catena of judgments of this Commission such as in Harish Chawla v Puri Construction Private Limited & Anr., CC/3236/2017, Anish Singhal v Jaiprakash Associates Ltd., CC/2194/2016, Vishal Gupta & Anr. V M/S. Imperia Structures ltd., CC/2439/2017 Capital Greens Flat Buyer Association v DLF Universal Limited & Anr., CC/351/2015, where similar delays were rejected as Force Majeure grounds.

14.    It is an admitted fact that the Complainant has paid Rs.91,83,830/- i.e. over 90% of the total sale consideration out of which HDFC bank has disbursed a total amount of Rs. 75,00,000/-; that the Opposite Parties did not complete the construction even as on date of filing of the Complaint; and that the Complainant has been awaiting possession of a flat for which  95% payment has already been made since. We find it a fit case to place reliance on the judgements of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra (Civil Appeal No. 3182 of 2019), Pioneer Urban Land & Infrastructure Ltd. V. Govindan Raghavan and Wg. Cdr. Arifur Rahman Khan v DLF Southern Homes Pvt Ltd (Civil Appeal No. 6239 of 2019) wherein the Hon’ble Supreme Court has observed that the flat purchasers cannot be made to wait for inordinate period of time hoping to seek possession and that refund of amounts deposited is a valid redressal. It is also pertinent to note that this Commission has already considered similar issues with respect to the same project, i.e. “Supertech Hues” in an earlier decision dated 29.07.2019, in the case of Ankur Saxena & Anr. V. M/s Supertech Limited CC No., 1055 of 2018 wherein identical defences taken by the OP were rejected. We find that the instant case is identical to the facts and prayer in the case of Ankur Saxena (Supra). The OP has not provided any evidence in support of its contention that there was a default of payment by the complainant towards the unit booked by him. It is evident from the foregoing that there has been deficiency in service by the OP.

15.   In view of the fact that the OPs have failed to abide by their own commitment of handing over possession of the Unit in question even after the lapse of the grace period and do not have either a completion certificate or an offer of possession, the delay cannot be construed as reasonable. We find merit in the contentions of the Complainants and accordingly allow the Complaint. OP No. 1 shall refund the total amount of Rs.91,83,830/- (Rupees Ninety One Lakhs Eighty Three Thousand Eight Hundred and Thirty only) paid by the Complainant to the Complainants and HDFC bank on the proportion in which they have paid OP No. 1 by demand Draft. In addition simple interest @ 9 % from the respective dates of deposits shall be paid to the Complainant to compensate for mental agony and hardship apart from litigation costs of Rs.50,000/- (Rupees Fifty Thousand Only) by Demand Draft within a period of 6 weeks of this order, failing which simple interest @ 12% shall be applicable.