1. This complaint has been filed before this Commission under Section 17 of the Consumer Protection Act 1986, the Act, by Dr. Satish Chandra, resident of NOIDA, Uttar Pradesh, the complainant, against the M/s Ferrous Infrastructure Pvt. Ltd., hereinafter referred to as OPs, alleging deficiency of service on the part of the OPs they not having handed over the possession of the flat within the agreed time despite the payment as required and as scheduled having been made and also alleging unfair trade practice the OPs not having refunded the money as sought for by the complainant owing to the inaction on the part of the OPs and praying for relief as under:-
In view of the submissions contained in the preceding paragraphs the complainant most respectfully prays to the Hon’ble State Commission, New Delhi to direct the OP:
a. To refund the principal amount of Rs. 17,70,340/- taken by the OP, along with the interest @ 24% per annum on principal amount which works out to be Rs. 32,17,069/- till 30th September 2015 and additional interest till actual payment is made.
b. To compensate Rs. 13,20,000 in lieu of the cost of rent @ Rs. 30,000/- per months (Rs. 25,000 X 44 Months) accruing from the due date of delivery of possession i.e. January, 2012 till 30th September 2015 and additional amount which become due @ of Rs. 30,000/- per month till refund is given by the OP.
c. To pay Rs. 20,00,000/- to the complainant for the mental agony and physical strain, and inconvenience suffered by the complainant and his family.
d. Pay Rs. 50,000/- towards cost of filing the complaint.
e. Pass any other order as deems fit to do complete justice.
2. Facts of the case necessary for the adjudication of the complaint are these.
3. The complainant paying Rs. Nine Lakhs to the OPs had initially booked three plots in Sector-89, Faridabad. Later the OPs according to the complainant, expressed their inability to deliver the possession of the plot and opted him to accept a flat which he accepted with reluctance. Resultantly the OP confirmed the allotment of a flat to the complainant bearing number 909, Block-N (9th Floor), Ferrous City, Sector-89 Faridabad having area of 1412 sq. ft., and simultaneously agreeing to adjust the excess amount against the subsequent instalments.
4. On 02.01.2020 the complainant entered into a MoU with the OPs. According to the terms of agreement the complainant was to pay Rs. 8,70,340/- in three instalments and remaining amount of Rs. 8,70,340/- was to be paid at the time of possession. The complainant paid the amount.
5. Simultaneously on that very day both the parties, the complainant and the OPs, had also signed a buyer-seller agreement. Clause 13 of the Buyer-Seller Agreement dated 2 January 2012 posits that the construction of the tower, comprising the said flat, would be completed within two years from the start of construction or execution of agreement whichever is later. This clause also says that if for any reason the company is not in position to allot the property applied for, the company, at its sole discretion, would consider for any alternative property or refund the amount deposited with simple interest @ 10% per annum. However the OPs failed to meet their obligation as per the agreement and did not hand over the possession of the flat within the agreed period. Consequently the complainant sought for the refund of the amount deposited with interest. The refund of the amount not having been done by the OPs as sought for the complainant has approached this Commission for the redressal of his grievances.
6. OPs were noticed and in response thereto they have filed reply resisting the complaint both on technical ground and on merit stating, inter alia, that the complaint is barred by limitation having been filed beyond two years prescribed period. Secondly the complainant having booked three plots initially is not a consumer within the meaning of Section 2(1)(d) of the Act as the transaction done would be deemed to have been for the purpose of investment. Thirdly the delay in completion of the construction is owing to force majeure. Fourthly, on merit, the objection is that the complainant has been a defaulter in making the payment and for his own wrong he cannot be allowed to take advantage. Finally the OPs while denying the averments contained in the complaint has argued that there exists no deficiency their part and if that be the case the complainant is not entitled for the relief claimed.
7. The complainant has filed rejoinder rebutting the contentions raised by the OPs in their written statement and reiterating the averments contained in the complaint. Evidence by way of affidavit has been filed by both sides. Written arguments are also on record.
8. This matter was listed for final hearing before this Commission on 21.01.2020 when the counsel for the complainant appeared and advanced his argument in support of the pleadings and pressed for the refund of the amount deposited, the construction of the flat not having been complete within the agreed period and thus depriving him of the flat for which, relying on the terms of agreement, he was fully entitled to. No appearance was made on behalf of the OPs. They were afforded opportunity to conclude their arguments any time on or before 28.01.2020. But the OPs did not appear even in the extended time. However they have filed their written synopsis within the time allowed reiterating what they had submitted in their reply. Accordingly I proceed to finalise the judgement based on the available records of the case.
9. I may in the first instance deliberate upon the stand taken by the OPs in their written statement while resisting the complaint. The first objection relying on Section 24A of the Act that the matter is barred by limitation, the complaint having been filed beyond the prescribed period of two years, has no legs to stand since the possession of the flat booked by the complainant was not handed over, nor the refund was done as sought for owing to the construction of the flat not having been completed which means there was continuing cause of action as against the OPs.
10.For this purpose reliance is placed on the judgement of the Hon’ble NCDRC in the matter of Mehnga Singh khera & Anr. versus Unitech Ltd. as reported in I  CPJ 93 (NC) holding in para 12 as under:-
The Opposite Party contested the complaint as being barred by limitation prescribed under section 24(a) of the Consumer Protection Act, 1986 since the last date stipulated in the buyers' agreement for giving possession of the flat expired more than 2 years ago. It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts. It is only when the seller virtually refused to give possession, that the period of limitation prescribed under section 24(A) of the Consumer Protection Act, 1986 would start. The Complainant has to file a case within two years from the date of refusal of delivery of possession to the buyer. In the present case, the Opposite Party has not refused possession of the flat to the complainants at any point of time. Therefore, the cause of action continues to subsist in favour of the Complainant.
11. Their second objection that the complainant having booked three plots has done the transaction for commercial purpose in which case, relying on Section 2(1)(d) of the Act, he is not a consumer and thus not entitled to raise a consumer dispute within the meaning of Section 2(1)(e), can also not be accepted for the reasons explained hereinafter. The NCDRC in a number of recent judgments has taken a view that if the complainant is not involved in trade or business of the house/ flats/plots, he will not be barred from filing complaint. This Commission in the case of 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".
It was also observed as follows:-
"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, Kavita 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).
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.
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.
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 held as follows:-
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. In the present case, clearly the opposite party has not filed any proof that the complainant is involved in regular purchasing and selling of flats. Clearly the act of trading or business on the part of the complainant has not been established. Accordingly the complainant would be treated as consumer.
15. Further the assertion of the OPs that the delay done in completion of the project is due to force majeure can also not be accepted since no evidence has been led in support of this arguments. It appears that this objection has been raised more out of routine than with objectivity. Besides it belies my conviction that builder of high repute as the OPs claim could not meet the requirement and complete the construction. In the absence of any cogent evidence in support of this defence, this argument of the OP, is overruled.
16. Finally the objection of the OP to the effect that the complainant was defaulter in making the payment is also not borne out from the records and this objection is also overruled.
17. Coming to the objection of the OPs on merit of the case, no tangible evidence has been led controverting the averments of the complainant.
18. Short question for adjudication in this complaint is whether the complainant is entitled for the relief as prayed for in the facts and circumstances of the case when admittedly the OPs have not been able to hand over the possession of the flat within the time as agreed to. Having bestowed my consideration to the facts at hand I am of the considered opinion that the complaint deserves to be accepted, the possession of the flat not having been delivered within the time as agreed to despite the payment having been made as per the demand of the OP.
19. Having arrived at the said conclusion, the point for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment he has suffered at the hands of OPs on account of non-delivery of the allotted flat.
20. The provisions of the Act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical, mental or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the Opposite Party. In Ghaziabad Development Authority Vs. Balbir Singh - (2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon'ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations given in the said decision was between the cases, where possession of a booked/allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon'ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the Complainant, 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 refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot. Additionally, in my view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc.
21. From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.
22. The Hon’ble NCDRC in the matter of Anil Shantilal Gandhi versus Sahara Prime City Ltd. as reported in IV  CPJ 24 (NC) in pleased to direct refund of the amount deposited with interest @ 10%, the OP having failed to offer the possession of the allotted unit to complainant even after more than eight years time.
23. The Hon’ble NCDRC in yet another matter, in the matter of Universal Infrastructure and Anr versus Binay Pal Singh and Anr. as reported in IV  CPJ 437 (NC), relying on a judgement of the Hon’ble Supreme Court of India in the matter of Kolkata West International City Pvt. Ltd. versus Devasis Rudra, Civil Appeal 3182/2019, decided on 25.03.2019, noting that more than seven years have a already expired held that the complainant cannot be expected to wait indefinitely for possession of the allotted flat and thus entitled for compensation.
24. The Hon’ble NCDRC in the matter of STUC Awasiya Grahak Kalyaan Association and ors versus Supertech as
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reported in III  CPJ 226 (NC) is pleased to hold that allottee cannot be compelled to accept possession at the belated stage and thus refund of the deposited amount alongwith compensation in the form of Simple Interest at the rate of 10% was ordered. The Hon’ble Supreme Court of India has taken the same view in the matter of Pioneer Urban Land and Infrastructure Ltd. versus Govindan Raghavan as reported in II  CPJ 34 (SC). 25. Besides, their Lordships in Apex Court in the matter of Fortune Infrastructure and Anr versus Trevor D’lima and ors as reported in II CPJ 1 (SC) are pleased to hold as under: Person cannot be made to wait indefinitely for possession of flats allotted to them. They are entitled to seek refund of amount paid by them, alongwith compensation. 26. The Hon’ble NCDRC in the matter of Parasvnath Buildwell Pvt. Ltd. and Anr versus Varun Dev, as reported in II CPJ 212 (NC) is pleased to direct as under: “Flat booked was never constructed. Allottee cannot be made to wait indefinitely for possession. They are entitled for refund. Refund allowed with 12% interest. 27. The Hon’ble NCDRC has taken similar view in the following matters also, namely, a. Emaar MGF Land Ltd. and Anr versus Amit Puri-II CPJ 568 (NC) b. Parasvnath Exotica Residents Association versus Parasvnath Developers Ltd. and ors-IV CPJ 328 (NC). 28. Having regard to the discussion done and the legal position having been explained I am of the view that the ends of justice would be met if a direction is issued to the OPs to refund the deposited amount with compensation in the form of simple interest at the rate of 10% from the date of deposit of the amount till its realisation. This rate of interest has been ordered keeping in view the agreement. This payment be made by the OPs to the complainant within a period of three months from the date of receipt of this order. 29. Ordered accordingly leaving the parties to bear the cost. 30. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.