This consumer complaint has been filed by the complainant Aerostar Helmets Pvt. Ltd. alleging deficiency on the part of the opposite party Adani M2K Project LLP.2. The brief facts of the case are that the complainant booked Apartment No. G-1502 at 15th floor on 06.2.2013 in a building proposed to be built by the opposite party. The Apartment Buyer Agreement was signed on 31.08.2013. Against the total consideration of the apartment, the complainant paid total sum of Rs.2,34,24,181/- in the period 2013-2015. The possession was due on 01.09.2017. It is the case of the complainant that the building was constructed only upto 10th floor and the opposite party informed the complainant on 06.10.2017 that the apartment allotted to the complainant on 15th floor will not be constructed and alternative apartment was offered to the complainant. It is the further case of the complainant that the complainant had paid Preferential Location Charges (PLC) of about Rs.12,00,000/- for the said apartment and therefore, the complainant did not agree for the alternative apartment. The complainant then requested for a refund of the amount deposited with the opposite party along with 21% p.a. interest. The opposite party agreed to refund the principal amount paid by the complainant, however, did not agree to give any interest on the said amount as per the conditions of the Apartment Buyer Agreement. Hence, the present complaint has been filed with the following prayers:-“(a) to handover to the complainant lawful possession of Apartment No.G-1502, Oyster Grande situated within the revenue estates of village Khedki Mazra, Sector-102/102A, District Gurgaon, Haryana, complete in all respects as per specification contained in the Apartments Buyer Agreement and in accordance with law, along with adequate compensation for the period of delay from the committed date of possession till the date lawful possession is actually handed over to the complainant,ORto refund to complainant the entire amount of Rs.2,34,24,181 paid by complainant together with interest thereon at least at the rate of 21% per annum with effect from the date/s of receipt by Opposite Parties till the date/s of realisation by complainant,OR(b) to pay to complainant compensation of at least Rs.2,00,00,000 and also adequate compensation for the future, till possession/refund is given to complainant;AND(c) to pay to complainant costs of proceedings throughout.Any other or further order/s which this Hon’ble Commission may deem fit and proper may also be passed in favour of the complainant.”3. The complaint has been resisted by the opposite party by filing the written statement. The opposite party stated that the agreement was signed on 31.08.2013 and including the grace period the possession was to be given in 54 months i.e. by 28.02.2018. The opposite party offered an alternative similar apartment in the same project and in the same vicinity at the same price to the complainant before the due date of possession. The complainant did not agree for allotment of alternative apartment for which the occupation certificate was already obtained and requested for refund of the amount paid along with 21% interest per annum. This demand of refund along with interest has been contested by the opposite party on the ground that as per the provision of the Apartment Buyer Agreement, if the alternative apartment is not accepted by the complainant then the opposite party will refund the amount paid by the complainant without any interest.4. Both the parties have filed their evidence by way of affidavits which have been taken on record.5. Heard the learned counsel for the parties and perused the record. The main argument of the learned counsel for the complainant is that the substantial amount about 72% of the total consideration of the apartment was paid to the opposite party, but the opposite party never informed that the allotted apartment No. G-1502, on 15th floor of the building will not be constructed and kept on demanding the money from the complainant. The complainant had deposited about Rs.12,00,000/- as PLC charges on account of location of the allotted apartment No. G-1502, on 15th floor. Obviously, the complainant was not interested in taking any alternative apartment and therefore, the refund has been sought. The agreement is one sided and there are many judgments of this Commission as well as the Hon’ble Supreme Court that a complainant who is not getting the possession of the apartment has to be appropriately compensated. In this regard the learned counsel referred to the judgment of Hon’ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh, decided on 17.03.2004, MANU/SC/082/2004 and drew our attention to the following observations of this judgment:-“9. That compensation cannot be uniform and can best be 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. Further if the construction is not of good quality or not complete, the compensation would be the cost of putting it in good shape or completing it along with some compensation for harassment. Similarly, if at the time of giving possession a higher price or other amounts are collected unjustifiably and without there being any provision for the same the direction would be to refund it with a reasonable rate of interest. If possession is refused or not given because the consumer has refused to pay the amount, then on the finding that the demand was unjustified the consumer can be compensated for harassment and a direction to deliver possession can be given. If a party who has paid the amount is told by the authority that they are not in a position to ascertain whether he has paid the amount and that party is made to run from pillar to post in order to show that he has paid the amount, there would be deficiency of service for which compensation for harassment must be awarded depending on the extent of harassment. Similarly, if after delivery of possession, the sale deeds or title deeds are not executed without any justifiable reasons, the compensation would depend on the amount of harassment suffered. We clarify that the above are mere examples. They are not exhaustive. The above shows that compensation cannot be the same in all cases irrespective of the type of loss or injury suffered by the consumer. ”6. On the basis of the above judgment, the learned counsel emphasised that a person who does not get the possession is entitled to a higher compensation in terms of rate of interest as compared to a person who gets the possession with delay. Thus, the complainant is entitled to get atleast 18% per annum interest on the amount of refund.7. It has been argued by the learned counsel that the opposite party is charging 18% per annum interest on the delayed payment of instalment and therefore, the complainant should also get 18% per annum interest on refund.8. Learned counsel for the complainant further referred to the judgment of this Commission in Anila Jain Vs. Emaar Mgf Land Ltd., CC No.2208 of 2017, decided on 11.11.2019 (NC), wherein the amount has been refunded along with interest @10.3% per annum as per Rule 15 of Haryana Real Estate (Regulation And Development) Rules 2017.9. On the other hand, learned counsel for the opposite party stated that the complainant was informed within the due date of possession that the allotted apartment No. G-1502 on 15th floor was not coming up and alternate apartment was proposed for allotment to the complainant. However, the complainant refused the same and sought refund with 21% per annum interest. The learned counsel for the opposite party drew attention to Clause 22 of the Booking Application and stated that this provision makes it clear that if for any reason, the Developer is not in a position to allot the Apartment applied for, it may consider for allotment of an alternate Apartment and in case of failure to do so, it shall refund the entire amount received by it, without any deduction and it shall not be liable for payment of any damages/interest/compensation.10. Learned counsel for the opposite party further emphasised that same condition is also mentioned in the Apartment Buyer Agreement as follows:-“I (ii) If due to any of the aforesaid reason, or for any other reason whatsoever, the particular apartment which is allotted to Allottee(s) is not being constructed or in case of absolute deletion of the particular apartment in the said Project, the Developer shall allot an alternative apartment in the said Project, subject to availability and the Allottee(s) shall be liable to pay the difference in the Sale Consideration and Other Charges, of the erstwhile unit vis--vis the alternative unit, if any. If no alternative unit is available, the Developer will refund the amount paid by the Allottee(s), as reduced by the amount mentioned in Article 6(V)(ii)(c)(I) to (iii), without any interest. The Allottee(s) understand and agrees that such allotment of alternative Unit or refund of the amounts paid by the Allottee(s), shall adequately and completely redress the Allottee(s) and the Allottee(s) shall have no claim against the Developer whatsoever.”11. It was stated by the learned counsel for the opposite party that the opposite party is not interested in making any deduction for brokerage etc., but is ready to refund the total amount paid without any interest as per the above condition. The learned counsel further argued that the complainant is not an individual, rather, it is a company which understands well the legal implication of various conditions of the agreement. Parties are bound by this agreement and therefore, the opposite party is not liable to pay interest on the amount of refund. The learned counsel for the opposite party further raised the issue that the complainant being a company is involved in commercial venture and the purchase of the apartment was for commercial purpose. In this regard, the learned counsel drew attention to resolution dated 11.02.2013 of the complainant company where the following is mentioned:-“Mr. Kuljit Singh Arora, Director of the Company, placed before the Board the proposal to buy residential property for the residence of Directors/Employees/Officials/Staff members etc. of the Company and after deliberations and discussions it was:“RESOLVED THAT Mr. Kuljit Singh Arora, Director of the Company be and is hereby authorized to buy property on behalf of the Company.”12. On the basis of the above resolution, the learned counsel for the opposite party argued that no clear purpose is mentioned for purchase of the said apartment as it is mentioned that the apartment was to be purchased for the directors and employees of the company. The learned counsel stated that a residential apartment can only be used for one director or one employee of the company. The learned counsel mentioned that it seems that this apartment was being purchased for a guest house which would definitely be a commercial activity of the company. Thus, the complainant is not a consumer under the provisions of Consumer Protection Act 1986.13. We have carefully considered the arguments advanced by the learned counsel for both the parties and examined the record. There is no doubt that a company is a consumer as held by the Hon’ble Supreme Court in Karnataka Power Transmission Corporation and Anr. Vs. Ashok Iron Works Private Limited, (2009) 3 SCC 240, wherein the following has been observed:-“18. Section 2(1)(m), is beyond all questions, an interpretation clause, and must have been intended by the Legislature to be taken into account in construing the expression “person” as it occurs in Section 2(1)(d). While defining “person” in Section 2(1)(m), the legislature never intended to exclude a juristic person like company. As a matter of fact, the four categories by way of enumeration mentioned therein is indicative, Categories (i), (ii) & (iv) being unincorporate and Category (iii) corporate, of its intention to include body corporate as well as body un-incorporate. The definition of “person” in Section 2(1)(m) is inclusive and not exhaustive. It does not appear to us to admit of any doubt that company is a person within the meaning of Section 2(1)(d) read with Section 2(1)(m) and we hold accordingly.”14. The Hon’ble Supreme Court in Lilavati Kirtilal Mehta Medical Trust Vs. Unique shanti Developers & Ors., IV (2019) CPJ 65 (SC) has given certain parameters to examine whether a particular purchase or availment of a service will be treated as for commercial purpose. The Hon’ble Supreme Court has observed the following:-“7. To summarize from the above discussion, though a strait- jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial purpose’:(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose’ is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity.(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.(iv) If it is found that the dominant purpose behind purchasing the goods or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self- employment’ need not be looked into.”15. Clearly a residential apartment, even if being purchased for a guest house will not come under the commercial activity of the company if examined on the above norms because this purchase/transaction/activity would not have close and direct nexus with the profit generating activity of the company. Thus, clearly the proposed purchase of the said apartment cannot be considered a purchase for a commercial purpose.16. It is also a fact that originally allotted apartment No. G-1502, on 15th floor is not available to be given to the complainant and the opposite party offered to allot some alternate flat to the complainant which was refused by the complainant on the ground that the complainant has paid PLC charges of about Rs.12,00,000/- for the said apartment because of its preferred location, therefore, the complainant cannot be compelled to take alternative apartment. In the present case, the complainant has not accepted the alternate property being given by the opposite party as per the Apartment Buyer Agreement. Hence, it raises a question mark on the requirement of a residential flat by complainant company though legally as per the agreement the complainant company is entitled to get refund of the paid amount without interest.17. As per Clause 22 of the Booking Application and Clause I(ii) of the Apartment Buyer Agreement, the opposite party is bound to refund the amount paid if the alternative apartment is not taken by the complainant. As money has remained with opposite party for some time, the opposite party is liable to pay interest on this amount as held by the Hon’ble Supreme Court in Alok Shanker Pandey Vs. Union of India &Ors., II (2007) CPJ 3 (SC) wherein the following has been observed:-“9. It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B.”18. The complainant has demanded interest @21% per annum in the complaint, but during the argument learned counsel stated that 18% interest per annum may be awarded on the amount of refund on the basis of the judgment of the Hon’ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (supra). The import of the judgment of the Hon’ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (supra) is that a person who does not get the possession of the apartment due to deficiency of service on the part of the opposite party is entitled to higher compensation as compared to the person who gets the possession of the property with some delay. This observation came at a time when this Comm
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ission was awarding 18% per annum interest in most of the cases. Now, situation has changed and the interest rates have fallen manifold. We also do not see any force in the argument of the learned counsel for the complainant that 18% per annum interest should be granted on the amount of refund because the opposite party is charging 18% per annum interest on delayed instalment. The opposite party is charging interest on the delayed payment as per the agreement which has been agreed by the complainant, whereas there is no such provision in the agreement to refund the amount along with 18% per annum interest.19. The Hon’ble Supreme Court in Kolkata West International Pvt. Ltd. Vs. Deva Asis Rudra, II (2019) CPJ 29 (SC) has reduced the interest rate of 12% p.a. granted by this Commission in refund case to 9% p.a. Similarly, the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. & anr. Vs. D S Dhanda, ETC; Sudesh Goyal, ETC, 2019 Law Suit (SC) 1207 has allowed 9% per annum interest on the amount of refund. As these judgments are of the year 2019 and interest rates have further fallen, recently, this Commission in CC No.2094 of 2019, Ankur Goyal Vs. M/s. Rise Project Pvt. Ltd., decided on 14.10.2020, (NC) has allowed refund of the paid amount along with interest @ 8% per annum. In the circumstances mentioned above, we deem it appropriate to allow refund of the amount paid by the complainant along with interest @8% p.a. from the date of respective deposits till actual realization.20. Based on the above discussion, the CC No.930 of 2018 is partly allowed and the opposite party is directed to refund the amount of Rs.2,34,24,181/- to the complainant along with 8% per annum interest from the date of respective deposits till actual payment. The opposite party will also pay a cost of Rs.50,000/- (rupees fifty thousand only) as cost of litigation to the complainant. The order be complied within 45 days from the date of receipt of this order.