1.      Heard Mr. Manan Batra, Advocate, for the complainants and Mr. Vaibhav Agnihotri, Advocate for the opposite party.

2.      Ajay Pruthi and  Meena Batra have filed above complaint for directing the opposite party to (a) handover the lawful and peaceful possession of plot No.HC-1/41 having super area of 170.57 sq. mts. in the project “Oxford Street” in TDI City, Kundli District, Sonepat, Haryana; (b) pay a sum of Rs.7433388/- as delay compensation @ 18 p.a. from 22.03.2019 (agreed date of possession) till 23.03.2019; (c) pay compensation @ 18% p.a. from 23.03.2019 till the date of actual possession; (d) pay Rs.5 lacs for mental harassment and agony; (e) pay Rs2 lacs as litigation cost; and (f) any other relief which is deemed fit and proper in the facts and circumstance of the case.

3.      The complainants stated that complainant-1 is running a business of dairy products and complainant-2 is engaged in the business of buying different goods from whole-sellers and sell them to retailors from her home on commission basis. In order to earn their livelihood at a permanent place, 09.01.2006 they booked a commercial plot in the project “Oxford Street” launched by the opposite party for a consideration of Rs.5139576/- (Rs.4386000/- basic price + Rs.753576/- EDC charges). Due to financial constraint, they decided to purchase the said plot in their joint names. They paid an advance of Rs.877200/-, vide payment receipt dated 24.03.2006. The opposite party assured that the possession of the plot would be handed over within 24 months. On 21.09.2006, the opposite party allotted commercial plot No. HC-1/41 to the complainants. On 23.03.2007, the builder buyer agreement was signed between the parties. Certain terms of the agreement were arbitrary but as the complainants had already paid Rs.877200/- they had no option but to sign the builder buyer agreement. Thereafter, the opposite party raised the payment demands and the complainants paid Rs.70000/- on 13.04.2007, Rs.140000/- on 13.04.2007, Rs.222400/- on 14.06.2008, Rs.222400/- on 14.06.2008, Rs.222400/- on 14.06.2008, Rs.140000/-, on 30.12.2008, Rs.70000/- on 30.12.2008, Rs.one lac on 11.07.2009, Rs.2/- lacs on 11.07.2009, Rs.343200/- on 31.07.2010, Rs.302400/- on 31.07.2010, Rs.171600/- on 31.07.2010, Rs.151200/- on 31.07.2010, Rs.171600/- on 31.07.2010, Rs.343200 on 31.07.2010, Rs.343200/- on 31.07.2010 and Rs.171600/- on 31.07.2010. The complainants paid a total amount of Rs.48 lakhs (more than 90% of the sale consideration). The opposite party failed to handover the possession of the plot despite expiry of the promised date. On 18.05.2010, the complainants wrote a letter to the opposite party regarding the construction status of the project. In October, 2015, the Director of the opposite party informed the complainants that the opposite party was having a legal dispute over the land with the Panchayat and the allotment was subject to the legal dispute. The opposite party concealed this fact before execution of the builder buyer agreement. The complainants were also informed that the plot allotted to them has been shifted to some other location and the plot originally allotted to the complainants has been allotted to a third party. The opposite party assured the complainants that they had a large piece of land and another plot of the same size in another good location would be allotted to the complainants. As a huge amount of Rs.48/- lacs was stuck and the complainants again waited for one and a half year. In May, 2017, the officials of the opposite party started avoiding the complainants. Then the complainants requested the opposite party to refund the amount but the officials of the opposite party refused to refund the same. Then, the complainants filed the instant complaint on 18.04.2019.  

4.      The opposite party resisted the complaint by filing the written statement on 03.02.2021 wherein booking of the plot and the deposits made by the complainants have not been disputed. It was stated that the complainants defaulted in paying the timely instalments in spite of various reminders. They did not pay EDC charge. Total outstanding amount payable by the complainants was Rs.2367453/-. The opposite party also denied that sale consideration of the plot was Rs.5139576/- (Rs.4386000/- basic sale price + Rs.753576/- EDC charges). Final cost of the plot was to be fixed at the time of possession. The complainants falsely alleged that possession of the flat was to be given within 24 months. As per clause 14 of the agreement, possession was to be handed over after payment of entire sale consideration. The opposite party did not change the allotment arbitrarily. Clause 2 of the allotment letter clearly stipulated that the allotment was tentative and subject to change in the layout plan. The fact regarding alteration in the layout plan including changing of plot is also mentioned in Clause 3 of the agreement. The complainants failed to pay the instalments despite repeated reminders, therefore, the opposite party cancelled their allotment vide letter dated 30.04.2010. After cancellation of allotment, the complainants made part payment of due amount through post-dated cheques dated 31.07.2010, therefore, the opposite party revoked the cancellation of allotment. Thereafter, the opposite party, vide letter dated 22.08.2017 offered the complainants alternative plot No.IC-2/32 or adjustment of the entire amount deposited by the complainants in any other project.

4a.    The opposite party also raised the preliminary issues regarding maintainability of the complaint. The complainants have booked the plot for commercial purpose, therefore, they are not consumers. It was submitted that as the value of the plot in question is less than Rs.1 crore, the National Commission does not have the pecuniary jurisdiction to entertain this Complaint. The complainants made last deposit on 31.07.2010. The complaint filed on 13.04.2019 is barred by limitation. There is no deficiency in service on the part of the opposite party and the compliant is liable to be dismissed.

5.      The complainants filed rejoinder and separate Affidavits of Evidence of Ajay Paruthi and Meena Batra as well as documentary evidence. The opposite party filed Affidavit of Evidence of Paras Arora. Both parties filed written arguments.

6.      We have considered the arguments of the counsel for the parties and examined the record. In clause 14 of the agreement it is mentioned that possession of the plot would be handed over after making the entire payment. No specific period whatsoever for handing over the possession has been mentioned in the agreement. Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, held that if specific date of possession has not been mentioned in the agreement, the opposite party is required to handover the possession within a reasonable period of three years. The home buyer cannot be made to wait for possession for an unlimited period. Therefore, clause 14 of the agreement is one sided, unjust and favouring the opposite party. The complainants have prayed for possession of plot No.HC-1/41 in the concerned project. As the complainants have themselves stated in the complaint that plot No.HC-1/41 has been allotted to a third party, then it is not possible to handover the possession of the said flat to them. In the written arguments filed by the complainants vide diary No.16200 dated 09.01.2022, they have also made an alternative prayer for refund of the amount with interest @ 18% p.a. Supreme Court in Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor (2002) SCC Online SC 416 held that in case of refund, interest @9% per annum is a just compensation. In Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers and others, (2020) 2 SCC 265, Supreme Court has given various guidelines for deciding the commercial purposes i.e (i) manufacturing/industrial activities or business-to-business transactions between the commercial entities. (ii) the purchase of the good or service should have close and direct nexus with a profit-generating activity then it would be terms as “commercial purpose”. The opposite party has not filed any evidence to show that the complainants were engaged in any of the above activities. The opposite party issued letter dated 22.08.2017 offering the complainants an alternative plot No.IC-2/32. Therefore, the cause of action was continuing and the complaint filed on 18.04.2019 is within limitation period. As far as question of pecuniary jurisdiction is concerned, Supreme Court in Sujir Keshav Nayak vs. Sujit Ganesh Nayak (1992) 1 SCC 731 held that in the suit filed before the Court of unlimited pecuniary jurisdiction, valuation disclosed by the plaintiff  has to be normally accepted unless the valuation of the suit was arbitrary.  

O R D E R

In view of the aforesaid discussions, the complaint is partly allowed with cost of Rs.50000/-. The opposite party is directed to refund entire amount deposited by the complainant with interest @9% per annum from respective dates of deposits till the date of refund.