1. Learned proxy counsel appearing on behalf of the main counsel for the appellants states that the main counsel is busy in the marriage.

2. Respondent No.1 has come from Canada. On previous date the learned counsel appearing on behalf of the appellants consented for this date and last opportunity was granted to pay the cost and argue the matter. Accordingly, the learned counsel for the respondents has been heard.

3. This appeal has been filed by the appellants against the order dated 06.11.2017 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred to as "the State Commission") in Misc. Applications No.1171 & 1172 of 2017 in consumer complaint No.176 of 2017.

4. The brief facts of the case are that on 09.10.2010 the complainants booked an apartment in the project of the opposite party for a consideration of Rs.51,06,982/-. Possession of the apartment was to be delivered within 36 months from the date of booking with grace period of 90 days. The complainants paid a sum of Rs.45,22,832/- and the builder buyer agreement was executed on 03.02.2011. The grievance of the complainants was that the opposite parties failed to deliver the possession of the apartment within the period stipulated in the agreement. Hence, the complainants filed a consumer complaint before the State Commission seeking refund of the deposited amount with interest.

5. The complaint was resisted by the opposite parties on several grounds. However, the State Commission finally allowed the complaint vide its order dated 06.11.2017 with following directions: -

i.) to refund the amount of Rs.45,82,334/-, alongwith interest at the rate of 12% per annum from the respective various dates of payment till realization as per Rule 17 of PAPRA.

ii.) to pay Rs.50,000/- as compensation for the mental agony and harassment suffered by the complainants and litigation expenses."

6. It is seen from the appeal that the appeal has been filed mainly on the following grounds: -

"(i) The complaint was time barred but the State Commission has ignored this fact.

(ii) The complainants failed to make timely payments and the complainants were defaulter and, therefore, complainants were not Consumers.

(iii) The complainants had another property at Mohali and this property was basically being purchased for resale and therefore complainants are not Consumers.

(iv) The State Commission did not have the pecuniary jurisdiction to decide the present complaint. This point was raised in the written statement. However, the State Commission has not considered the same.

(v) The State Commission has not found any deficiency in service on the part of the opposite parties, but has allowed the complaint which is against the principle of the Consumer Protection Act, 1986.

(vi) The complaints have accepted the terms & conditions of the agreement and the complainants cannot go against these terms and seek refund. The refund cannot be sought without cancelling/rescinding the agreement. The State Commission cannot pass any order for rescinding the agreement. Otherwise, also the State Commission does not have power to rescind/cancel the agreement which is the sole jurisdiction of a Civil Court.

(vii) State Commission has not considered the provision of earnest money which is required to be forfeited if an allottee seeks refund and cancels the agreement.

(viii) In a contract relating to immovable property, time is not of essence and, therefore, if some additional time has been taken for completion of the project, it would not be treated as deficiency in service and the complainants are not entitled to any compensation in this regard. It is also mentioned that Hon'ble Supreme Court in the case of Chand Rani vs. Kamal Rani, (1993) 1 SCC 519 has given a clear observation that in a contract relating to property, time is not the essence. In this respect the appellants have pleaded that clause 8 of the agreement only provides for tentative time period for completion of the project and giving possession. This clause also mentions the compensation if there is a delay in completion of the project and handing over the possession. No Court can pass an order beyond the contract entered between the parties. Hence, complainants are not entitled to any other compensation than is mentioned in clause 8 of the contract. However, in the present case refund has been asked and refund cannot be given without deduction of the earnest money.

7. On the other hand, the learned counsel for the respondents stated that the apartment was booked on 09.10.2010 and the builder buyer agreement was executed on 03.02.2011. The total price of the flat was Rs.51,06,982/- and the possession was to be given within 36 months from the date of execution of the builder buyer agreement with 90 days grace period. The complainants have already paid Rs.45,22,832/-. Thus, there has been already an inordinate delay in handing over the possession. An allottee cannot wait for an indefinite period for possession. The State Commission has considered these aspects and has passed a reasonable order which may be confirmed in the present appeal.

8. It was further stated that the preliminary objections raised by the appellants in the appeal are only for the sake of raising objections otherwise they do not have any merit. Keeping in view the price of the flat it would be clear that the State Commission had the pecuniary jurisdiction to decide the present matter. In respect of the flat at Mohali, the learned counsel stated that there is no bar if a person already owns a house and purchases another one and clearly this flat was not being purchased for resale. Therefore, the complainants are consumers. It was further submitted that if the possession is not given nor the amount is refunded the cause of action continues for the allottee to file a consumer complaint. Thus, it is wrong to say that the complaint was time barred.

9. We have carefully considered the arguments advanced by the learned counsel for the respondents/complainants and have examined the record including the appeal filed by the appellants. In respect of the limitation, Hon'ble Supreme Court in the case of Meerut Development Authority vs. Mukesh Kumar Gupta, (2012) 4 CPJ 12 (SC) decided on 09.15.2012 has observed that if neither the possession is given nor the amount is refunded then it is a continuing cause of action and the complaint cannot be considered as time barred. Similarly, in respect of pecuniary jurisdiction, it is clear that the total consideration for the apartment is Rs.51,06,982/- and the amount paid is Rs.45,22,832/-. The complainants have asked for refund alongwith interest @ 15% p.a. As per decision of Larger Bench of this Commission in Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd in CC/97/2016 decided on 7.10.2016, the pecuniary jurisdiction is to be decided by the total consideration and the compensation demanded. If the total consideration and this interest is added for the period before the complaint, it would not cross the limit of Rs.1 crore. Thus, the State Commission would have the pecuniary jurisdiction to decide the present complaint.

10. In respect of the complainants owning some other property at Mohali, it is now the established law that if a purchaser is not involved in trading and regular sale & purchase of the property then he will be considered as a consumer. This Commission in Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14.09.2016, 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".

11. In another case, Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd., (2016) 1 CPJ 31 (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".

12. So far as the question of earnest money is concerned, it is seen that the possession was to be delivered in the year 2014. However, the same was not granted till 2017 when the complaint was filed. Thus, there was already a delay of about three years in handing over the possession. Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan, Geetu Gidwani Verma & Anr., (2019) 2 CPJ 34 (SC) has clearly observed that if the project is not completed and the possession is not handed over even with reasonable delay an allottee has a right to seek refund and he cannot be compelled to take possession after a huge delay in handing over the possession. Hon'ble Supreme Court has observed as follows: -

"3.8. The National Commission vide Final Judgment and Order dated 23.10.2018 allowed the Consumer Complaint filed by the Respondent - Flat Purchaser, and held that since the last date stipulated for construction had expired about 3 years before the Occupancy Certificate was obtained, the Respondent - Flat Purchaser could not be compelled to take possession at such a belated stage. The grounds urged by the Appellant - Builder for delay in handing over possession were not justified, so as to deny awarding compensation to the Respondent - Flat Purchaser. The clauses in the Agreement were held to be wholly one - sided, unfair, and not binding on the Respondent - Flat Purchaser. 6 The Appellant - Builder was directed to refund Rs.4,48,43,026/- i.e. the amount deposited by the Respondent - Flat Purchaser, along with Interest @10.7% S.I. p.a. towards compensation.

9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant - Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent - Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent - Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent - Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent - Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent - Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.

10. The Civil Appeals are accordingly dismissed, and the Final Judgment and Order dated 23.10.2018 passed by the National Consumer Disputes Redressal Commission is affirmed."

13. From the above, it is clear that the complainants had right to seek refund of the amount paid by them as there was a huge delay in offering the possession. Thus, the opposite parties have first breached the condition of the contract and therefore clause of earnest money shall not be applicable in the present case. The earnest money could only be deducted if the complainants have rescinded the contract and demanded refund before the due date of possession. Moreover, appellants have not proved that any loss has been suffered by them on account of cancellation of this agreement. Earnest money cannot be deducted until it is shown that there was some loss to the opposite parties. Hon'ble Supreme Court in the matter of M/s. Kailash Nath Associates Vs. Delhi Development Authority & Anr., Civil Appeal No.193 of 2015, decided on January 09, 2015 has laid down that the opposite party is not entitled to deduct the earnest money until they have suffered the loss. Hon'ble Supreme Court observed as under:-

"29. Based on the facts of this case, it would be arbitrary for the DDA to forfeit the earnest money on two fundamental grounds. First, there is no breach of contract on the part of the appellant as has been held above. And second, DDA not having been put to any loss, even if DDA could insist on a contractual stipulation in its favour, it would be arbitrary to allow DDA as a public authority to appropriate Rs.78,00,000/- (Rupees Seventy Eight Lakhs) without any loss being caused. It is clear, therefore, that Article 14 would apply in the field of contract in this case and the finding of the Division Bench on this aspect is hereby reversed."

14. It has been mentioned in the appeal that time is not the essence of the contract, therefore, there is no deficiency in service, if there is delay in handing over the possession. In this regard, reference has been drawn to the judgment of Hon'ble Supreme Court in the case of Chand Rani vs. Kamal Rani, (1993) 1 SCC 519 . In clause 20 of the agreement, it is stated that as time is the essence of the contract for making timely payments by the allottee, so, the opposite parties cannot take totally opposite view wh

en it comes to payment by the opposite parties. In the light of decision of Hon'ble Supreme court in Pioneer Urban Land & Infrastructure Ltd. (supra), the deficiency on the part of the opposite parties is evident as the possession was not offered even after three years of the due date of possession. In the Consumer Protection Act, 1986, if deficiency in service is proved, then the complainants are entitled for compensation. Thus, in the present case, all the objections taken by the appellants against the order of the refund by the State Commission are found to be without any force. 15. Coming to the question of interest, it is seen that the State Commission has awarded interest of 12% p.a. on the amount of refund on the basis of Punjab Apartment and Property Regulation Act, 1995 (for sort the "PAPRA"). The present order has been passed by the State Commission under the Consumer Protection Act, 1986. Hence, it is not obligatory for the State Commission to award an interest as mentioned in the PAPRA. Hon'ble Supreme court in a recent case of Kolkata West International City vs Devasis Rudra decided on 25 March, 2019 has reduced the rate of interest from 12% p.a. awarded in a refund case ordered by this Commission to 9% p.a. Accordingly, we deem it appropriate to reduce the interest of 12% p.a. allowed by the State Commission to 9% p.a. 16. Based on the above discussion, the appeal is partly allowed and the order of the State Commission dated 06.11.2017 is modified to the extent that the interest of 9% p.a. shall be payable by the appellants instead of 12% p.a. as ordered by the State Commission. Rest of the order of the State Commission is maintained. 17. The amount deposited by the appellants in compliance of order dated 25.07.2018 of this Commission with the State Commission shall be paid to the complainants and the same shall be adjusted in the final payment to be made to the complainants. The order be complied within a period of 45 days.