This appeal has been filed by the appellant M/s. Taneja Developers & Infrastructure Limited challenging the order dated 19.03.2012 passed by the State Consumer Disputes Redressal Commission, Punjab, (in short ‘the State Commission’) in CC No.50 of 2010.2. Brief facts of the case are that the respondent/complainant booked one residential unit with the appellant/opposite party in the year 2005 and paid booking amount of Rs.3,56,188/- on 16.07.2005. The complainant further paid amount of Rs.1,65,062/- on 16.11.2006 and Rs.3,80,000/- on 19.7.2008. Thus, complainant paid a total amount of Rs.9,01,250/- against the total consideration of Rs.17,37,500/-. The allotment letter was issued on 19.12.2008. The opposite party further demanded the money from the complainant and issued various reminders. The complainant had booked a commercial unit (SCO) and had paid Rs.17.50 lacs along with Jiwandeep Singh Ghai and seeing no progress in the commercial project, the complainant had requested to refund the amount of Rs.17.50 lacs so that he could make the payment for the residential plot. However, it is the allegation of the complainant that the amount of Rs.17.50 was not refunded by the opposite party and therefore, he could not make the payment. Consequently opposite party cancelled the allotment on 12.10.2009. Aggrieved with the cancellation, the complainant filed a consumer complaint being CC No.50 of 2010 before the State Commission. The complaint was resisted by the opposite party by filing the written reply. It was contended that the complainant was a defaulter and did not pay the remaining instalments as per the demand sent by the opposite party. Accordingly, the opposite party cancelled the allotment vide their letter dated 12.10.2009. Thus, there is no deficiency on the part of the opposite party and dismissal of the complaint was requested.3. The State Commission vide its order dated 19.03.2012 allowed the complaint as under:-“46. Accordingly, this complaint is partly accepted with costs of Rs.20,000/- and the order dated 12.10.2009 vide which the respondents have cancelled residential plot no.878 in favour of the complainant is set aside. The respondents are burdened with compensation amount of Rs.1 lac for causing mental tension, agony and physical harassment to the complainant.”47. The complainant would deposit the balance amount (by reducing the amount already paid out of Rs.17,37,500), within two months after receipt of a copy of this judgment. If he fails to do so then the complainant will be liable to pay that amount with interest at the rate of 18% per annum with effect from today till the date of payment. The respondents will deliver the possession of residential plot no.878 to the complainant within one year after the amount was deposited by the complainant. If the respondents failed to deliver the possession of the plot to the complainant within one year, then the respondents would be liable to pay interest on the amount deposited by the complainant hereafter at the rate of 18% per annum from the date of deposit till the date of delivery of possession of the plot.”4. Hence the present appeal.5. Heard the learned counsel for the parties and perused the record. The learned counsel for the appellant stated that it is wrong to say that the complainant ever asked for adjustment of the amount of Rs.17.50 lacs paid in connection with booking of SCO for the purpose of payment against the residential plot. In fact, in the letter dated 13.08.2009 the respondent/complainant had only asked for refund of the amount of Rs.17.50 lacs. As that amount was paid under a joint booking of the complainant and Jiwandeep Singh Ghai and was under a different project, its refund was not connected in any way with the payment to be made for the residential plot. There can be no condition for making payment under one scheme that the payment would be made after refund of amount from another scheme. Had there been any request for adjustment of amount, then the same could have been considered after properly examining the issue. Thus, the application for refund of the amount of Rs.17.50 lacs paid for the booking of a SCO has no relation with the payment in respect of the residential plot booked by the complainant. Learned counsel further argued that though the State Commission has finally given an order in respect of claim of Rs.17.50 lacs that the complainant may file separate complaint in this regard, but the State Commission has considered this aspect while setting aside the cancellation order dated 12.10.2009 by the opposite party.6. Learned counsel further argued that the complainant had already booked three residential units with opposite party and three other residential units with Unitech Limited. One unit was booked by the complainant for which the present appeal is under consideration and one unit has been booked under the name of the HUF whose karta is the complainant as well as the third unit has been booked in the name of the wife of the complainant for which the amount has been paid by the complainant from his account. Complainant who has booked six units cannot be called a consumer, rather, he is a pure investor, who is basically a property dealer. Thus, the State Commission did not have any jurisdiction to adjudicate the complaint of the complainant.7. Learned counsel for the appellant further pointed out that the order of the State Commission allows the complainant to pay the remaining amount within a period of two months otherwise the complainant will be paying 18% p.a. interest on the remaining amount. The complainant has not paid any amount within two months nor even till date. The complainant has also not filed any appeal against the impugned order of the State Commission. Thus, the order of the State commission has become final qua the complainant. Clearly, the complainant does not seem to have been interested in the residential unit as he has not complied with the order of the State Commission which has ordered delivery of possession of the plot to the complainant on certain conditions. Moreover, as the complainant has not approached the opposite party for accepting the money as per order of the State Commission, the opposite party has disposed off the plot in question and now there is no plot available to be given to the complainant. The appellant is ready to refund the amount of Rs.9,01,250/- to the complainant along with appropriate interest.8. On the other hand, the learned counsel for the respondent/complainant stated that the booking amount was deposited in the year 2005 and further amounts deposited in the year 2006 and 2008 and the allotment letter was issued on 19.12.2008 which should have been issued within six months from the booking of the plot as per the Terms & Conditions mentioned in the booking form. There was no payment schedule attached with the allotment letter and as and when the amount was demanded by the opposite party, the complainant paid the amount. When only about Rs.8,00,000/- was left to be paid, and there was a demand from the opposite party, the complainant requested to adjust the amount of Rs.17.50 lacs paid for booking of SCO in another project of the opposite party as there was no progress in that project. However, there was no response from the opposite party and they straightway cancelled allotment of the residential plot. Thus, the opposite party kept the money paid by the complainant for roughly three years without even allotting any plot, whereas the opposite party has shown great urgency in cancelling the allotment. This issue has been thoroughly analysed by the State Commission and State Commission has clearly reached to the conclusion that there was an undue haste in cancelling the allotment of the complainant after issuing quick reminders. Moreover, even after cancellation, the amount was not refunded to the complainant. This was a clear unfair trade practice on the part of the opposite party/appellant herein. A demand letter was made by the opposite party on 08.07.2009 and the plot was cancelled on 12.10.2009.9. Coming to the number of different units booked by the complainant and his family members, the learned counsel for the complainant stated that the unit in the name of wife and in the name of HUF have not yet been delivered to the respective buyers. All these persons are different legal entities and cannot be clubbed with the complainant. Learned counsel further informed that one unit booked with Unitech Ltd. was never constructed and the complainant has taken refund of that unit. The other unit with Unitech was booked by the married daughter of the complainant and third unit was booked by the son-in-law of the complainant and they cannot be clubbed together with the complainant to assess the applicability of the Consumer Protection Act, 1986 in the present complaint. Thus, there is no question of any trade of residential units by the complainant. Mere booking more than one unit would not disentitle complainant from becoming a consumer under the Consumer Protection Act, 1986 untill he is engaged in regular sale or purchase or trading of such properties. Thus, by no stretch of imagination, complainant can be ousted from the purview of Consumer Protection Act, 1986.10. We have carefully considered the arguments advanced by the learned counsel for the parties and examined the record.11. Coming first to the question of complainant being a consumer or not, it is seen that the complainant has booked only one unit in his name with the opposite party. The other units are in the name of other family members or in the name of HUF which is also a different legal entity. Moreover, even if the complainant had booked more than one residential units in his name, even then if the complainant is not involved in regular trading of the plots or flats, he cannot be ousted from seeking remedy under Consumer Protection Act, 1986.12. This Commission in the matter of Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14.09.2016, has 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 that:-“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”.13. In another case, Kavit 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).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”.14. This Commission, in Rajesh Malhotra & Ors. Vs. Acron Developers & 2 Ors., First Appeal No. 1287 of 2014, decided on 05.11.2015 has held as follows:-“12. 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”.15. From the above observations of this Commission in aforesaid cases the basic principle that emerges is that even if the consumer had booked more than one residential unit, but is not involved in trading of such properties, he will be deemed to be a consumer under the Consumer Protection Act, 1986. The opposite party/appellant herein has not filed any proof that the complainant is involved in regular trading of such properties. Thus, we are unable to accept the contention of the learned counsel for the appellant that the respondent/complainant is not a consumer.16. Coming to the merits of the case, it is seen that the allotment letter was issued after three years of the booking of the residential plot, whereas the plot was cancelled only after two months of the demand letter. In fact, the State Commission has observed the following:-“42. The respondents were more than keen to issue reminders to the complainant for remitting the money to the respondents, but they had not shown any urgency in issuance of the allotment letter or in making delivery of possession. The respondents had shown utmost hastiness in cancelling the plot vide letter dated 12.10.2009 i.e. merely after 6/7 months which was allotted on 9.12.2008/ 12.3.2009 i.e. it was allotted more than 3 years after accepting the booking amount. Even when they received an amount of Rs.3,56,188/- on 16.7.2005, Rs.165,062/- on 16.11.2006 and Rs.3,80,000/- on 19.7.2008 against the total price of Rs.17,37,500/-. In all, the respondents had collected Rs.9,01,250/-against the total plot price of Rs.17,37,500/- when the money collected by the respondents from the complainant to complete the preliminaries and they were nearing the destination, they cancelled the plot of the complainant. This conduct of the respondents was totally unfair and unreasonable. It clearly proved not only deficiency in service on their part but also revealed unfair trade practice.43. If the respondents are reputed builders, they should have specified the payment plan, the approximate date, by which the allotment letter would be issued and the approximate dates by which the possession of the residential plot would be delivered. In sending reminders to the consumers asking them to deposit the money without caring for issuance of the allotment letter and without caring for the delivery of possession of the plot amounts to unfair trade practice. Whether the respondents were to deal with the various departments of the government was a concern of the respondents, the burden of which they could not put on the persons from whom they were accepting the money and who had booked the plot with the respondents. The respondents also owed some duty to them and they had some obligations towards them to maintain schedule for delivery of possession. The respondents cannot exploit the persons who deposit with them the money for a residential plot.44. Moreover, the respondents had already with them an amount of Rs.17.5 lacs which was deposited by the complainant along with one Jiwandeep Singh Ghai. The complainant alongwith Jiwandeep Ghai had written letter dated 13.8.2009 (Annexure C-19) to the respondents seeking refund of Rs.17.5 lacs, but it hurts the respondents when they are required to refund the money or when they are required to issue the allotment letter or deliver the possession. They are happy when the customers/consumers are depositing the money with them. The respondents must have some moral values and humane element that after all the persons, who invest the money with them against the booking of plot was their hard earned money and the customers also expect corresponding duty of the respondents.45. In view of the discussion held above, we hold that the respondents have committed deficiency in service by cancelling the plot of the complainant vide letter dated 12.10.2009 (Annexure C-21) and have also displayed unfair trade practice.”17. From the above observations of the State Commission, it is clear that the plot was cancelled due to some ulterior motive on the part of the opposite party which clearly proves unfair trade practice on the part of the opposite party. It is also clearly brought out that there were various deficiencies on the part of the opposite party in issuing the allotment letter without any payment schedule and without any due date of possession. Clearly, these aspects reveal unfair trade practice adopted by the opposite party and therefore, the State Commission rightly allowed the restoration of the allotment. However, it is seen that the respondent/complainant has not deposited the remaining amount as ordered by the State Commission within a period of two months or later with interest @18% p.a. Even during the pendency of the appeal, no demand was made by the complainant to allow the complainant to deposit the amount as per the order of the State Commission. The order of the State Commission is dated 19.03.2012 whereas the notice in the appeal filed by the appellant was issued on 04.07.2013 to the complainant. Thus, there was ample time of one year and four months for the complainant to have deposited the remaining amount as per the order of the State Commission, if the complainant was interested in getting the plot. However, as the State Commission has not given any final limit to t
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he complainant to deposit the amount otherwise his right to get the plot will extinguish, we deem it appropriate to allow three months’ time to the complainant from the date of this order to deposit remaining amount along with interest with opposite party as per the order of the State Commission in case the complainant is interested in getting the plot. Learned counsel for the complainant has stated that complainant sent a draft to opposite party, but the same was not taken by the opposite party. If this was the case, the complainant should have brought this to the notice of this Commission during the pendency of the appeal. Moreover, if the opposite party does not accept the amount as per the order of the State Commission, the complainant may deposit this amount with the State Commission within a period of three months and the State Commission shall release this amount to the opposite party after giving notice to the opposite party for compliance of the order dated 19.03.2012. If the complainant does not pay to the opposite party or does not deposit the same with the State Commission within the stipulated period, it would be deemed that the complainant is not interested in getting the plot. In such situation, the opposite party will refund the amount of Rs.9,01,250/- paid by the complainant along with interest @9% p.a. from the date of respective deposits till actual payment. The rate of interest @9% p.a. is being awarded on the basis of the judgment of the Hon’ble Supreme Court in Kolkata West International Pvt. Ltd. Vs. Deva Asis Rudra, II (2019) CPJ 29 (SC) where the Hon’ble Supreme Court has reduced the interest rate @12% p.a. as awarded by this Commission to 9% p.a. Further, in DLF Homes Panchkula Pvt. Ltd. & anr. Vs. D S Dhanda, ETC; Sudesh Goyal, ETC, 2019 Law Suit (SC) 1207 the Hon’ble Supreme Court has again confirmed the order of interest @9% p.a. in refund cases. Once the State Commission had passed the order for delivery of possession of the allotted plot no.878 to the complainant, and after filing the appeal the matter was pending for final adjudication, the appellant/opposite party was required to keep the plot no.878 in question as available for allotting to the complainant, therefore, the argument of the appellant cannot be accepted that the plot has been sold to some other person. The appeal stands disposed of in terms of this order.