Subhash Chandra, Member

This is a complaint under section 21 of the Consumer Protection Act, 1986 filed by the complainants herein seeking refund of the money deposited by them with the opposite party in respect of a flat booked in a project promoted and developed by the opposite party along with compensation for the delay in handing over the possession on grounds of deficiency in service and unfair trade practice.

2. The brief facts of the case are that the complainants had purchased/ booked a flat in re-sale in the project ‘Pavilion Court’, Jaypee Greens, Noida promoted by the opposite party. As per the allotment letter dated 10.01.2012 the opposite party had agreed to the transfer of the flat by the original allottee to the complainant by way of No Objection Certificate (NOC) on the same terms without change or abrogation of the terms and conditions of the original allotment. Vide letter dated 10.01.2013 the opposite party transferred the allotment of the flat no. PVC 005 – 0204 ad-measuring 1600 sq ft at a sale consideration of Rs.94,12,600/- and promised the delivery of the said flat to the complainant within 36 months ( i.e., by September 2015). The complainant avers that he has paid Rs.51,30,708/- to the opposite party as on the date of filing of this complaint. However, the possession has not been offered even after three years of the expiry of the promised 36 months for delivery which constitutes wilful delay and deficiency in service apart from unfair trade practice on the part of the opposite party. Opposite Party No. 1, M/s Jaiprakash Associates Limited, collected the deposited amount against the said flat. Refund was sought by the complainant from the opposite party on 22.12.2017 which has not been done. He has, therefore, filed this consumer complaint with the following prayer:

a. Grant a sum of Rs.1,02,04,188/- (i.e., a sum of Rs.51,30,708/- towards principal amount paid along with compensation in the form of interest amounting to Rs.50,73,480/- as calculated upto 30.06.2018) at the rate of 18% per annum along with pendent lite and future interest at the same rate or such higher rate of interest which this Hon’ble Commission may deem fit in the interest of justice, from the date of making payment till the date of actual realization of the payment;

b. Grant cost of litigation to the complainant;

c. Grant a sum of Rs.10 lakh towards exemplary damages as details above in the complaint; and

d. Any other order, relief or direction which this Hon’ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the complainant and against the opposite party.

3. The complainant admits that in addition to the flat in question he has booked two other flats in two other projects of the opposite party, viz., in ‘Imperial Court’ and ‘Wishtown’ for himself and another daughter respectively whom he wishes to settle by providing residential accommodation. He also admits that he had booked this flat in order to settle another daughter. According to him, this is not a commercial purpose or dealing in real estate.

4. The opposite party has resisted the complainant by way of a reply and affidavit in evidence. Both the parties have also filed their written arguments. We have heard the learned counsels for both the parties and perused the records carefully.

5. The admitted facts are that the complainant had purchased flat no. PVC – 005- 0204 in Pavilion Court in a resale against an NOC by the opposite party on the same terms and conditions for the original allottees for a total sale consideration of Rs.94,12,600/- against which Rs.51,30,708/- has been paid by the complainant and acknowledged by the opposite party. The allotment letter promises delivery of the said flat within 36 months, i.e., September 2015. Despite the lapsing of this date, neither the occupation certificate nor any offer of possession of the flat to the complainant has been brought on record by the opposite party.

6. The opposite party has taken preliminary objections on the grounds of pecuniary jurisdiction of this Commission to entertain this complaint. It has also been averred that the complaint is liable to be dismissed for non-joinder of parties since Jaypee Infratech Ltd., (JIL) which is a partner to the opposite party has not been impleaded in the memo of parties. It has also been averred that the complainant is not a “consumer” under the purview of section 2 (1) (d) of the Consumer Protection Act, 1986, since he has booked other apartments in other projects of the opposite party as well and that he is only before this Commission to make speculative gains from the sale of the apartment. It is averred that time was not of the essence in the allotment letter and that it had only indicated that the opposite party would make his best efforts to deliver the property in 36 months. Lastly, it has been argued that the delivery is covered by the clause relating to force majeure reasons and that the non-delivery of the flat is neither willful nor has the opposite party adopted any unfair trade practice.

7. The complainant has relied upon several judgments of the Hon’ble Apex Court and this Commission in support of his argument. He has relied upon the ruling of the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd., vs Govindan Raghavan and connected matter in CA no. 12238 of 2018 decided on 02.04.2019 – (2019) 5 SCC 705 that one sided clauses are not binding under section 2(r ) of the Consumer Protection Act, 1986 and in Kolkata West International City Pvt. Ltd., vs Devasis Rudra in Civil Appeal no. 3182 of 2019 decided on 25.03.2019 that a consumer/ allottee cannot be expected to wait indefinitely for the possession of the flat booked by him.

8. The Complainant has contested the opposite party’s defence of force majeure on the basis of M/s Laureate Buildwell Pvt. Ltd., vs Charanjit Singh – Civil Appeal no. 7042 of 2019 wherein it was held that:

“… although the NGT’s interim order had subsisted for a while, and the builder had taken shelter under it to say that construction could not take place, the record indicated that the builder had sought for installments from the original allottee, including demanding penal interest. Given these facts, there were no equities in favour of the builder, it was not open to it to claim that force majeure conditions operated and prevented it from going ahead with the construction”.

9. The complainant has contended that the onus of proving that he had booked the flat for speculative purposes, i.e., for buying and selling lies upon the opposite party in terms of this Commission’s order in Kavita Ahuja vs Shipra Estate Ltd., SCC Online NCDRC 930, which the opposite party has not been able to do. It has been admitted by the complainant that he had booked three flats including one for himself and the other two for his daughters which in itself cannot be considered to be for the purpose of dealing in real estate in the light of the findings of this Commission in Rajesh Malhotra vs Acron Developers, decided on 05.11.2015 (FA no.1287 of 2014).

10. On the issue of delay in delivery of the flat, the complainant has relied upon the findings of this Commission in Pradeep Narula & Anr., vs M/S Granite Gate Properties Pvt., CC no. 315 of 2014, decided on 23 August, 2016 wherein it has been held that delay in handing over possession constitutes deficiency in service except when this delay is minor. Lastly, he has also relied upon Anish Singhal vs Jaiprakash Associates Ltd., (CC no.2194 of 2016) decided on 01.10.2019, wherein it has been held that the complaint against Jaiprakash Associates Ltd., is maintainable.

11. It is an admitted fact that the OP has failed to deliver the possession of the said apartment within the time it had itself mentioned in the letter of allotment and even after three years of the promised date of handing over the possession there is no occupation certificate or an offer of possession brought on record. The complainant’s prayer is to refund the amount deposited along with compensation and interest. Complainant has admitted to booking of three flats.

12. The argument that the purchase/ booking of more than one flats in the names of family members does not per se constitute an act of commercial activity of dealing in real estate has been set to rest in Kavita Ahuja (Supra) and in Lakshmi Engineering Works vs P S G Industrial Institute – (1995) 3 SCC 582 where it was held that ‘commercial purpose’ needs to be determined from case to case. As regards the reliance of the OP ban on construction activities due to orders of the NGT constitute force majeure events, it is evident from the evidence produced that there was no stay on the construction by the Hon’ble NGT. In Alok Garg vs Parsavnath Developers Ltd., decided on 09.03.2021 (CC no. 31 of 2016) the NCDRC has held that:

33. In the instant case, there is no documentary evidence to support the contention of the opposite party that the ground raised by them can be construed as “Force Majeure”. In the absence of any material on record to substantiate the plea of the opposite party that the delay was for reasons beyond their control, we hold that the opposite party cannot take shelter under the Force Majeure clause. For the latches of the opposite party, the complainant cannot be made to suffer. Hence, it cannot be assumed that the actual cause of delay was such as has been stated by the opposite party.

13. In Manoj Kawatra and Anr., vs Pioneer Urban Land and Infrastructure Ltd., decided on 01.11.2021 – 2021 SCC Online NCDRC 325 had deliberated upon shortage of labour due to construction of commonwealth games village, shortage of water, dispute with construction agencies, delay in obtaining licenses, approval etc., as in the case of delay due to “force majeure” events, the opposite party would be entitled to extension of time, without incurring any liability and it was held that:

“9. In view of the above, the opposite party cannot take shelter of the “force majeure” clause. The reasons cited by the opposite party for the delay of the project, appear to be delaying tactics veiled as “force majeure” conditions and seem to be an attempt to wriggle out of its contractual obligations.”

14. Also, in Anil Patni and Anr vs Imperia Structures Ltd., - CC no. 3011 of 2017 decided on 12.09.2018 this Commission has held that:

“10. It is pertinent to note that the developer has not filed any evidence to support his contention that the delay occurred due to force majeure events. In fact demonetization, non-availability of contractual labour, delay in notifying approval cannot be construed to be force majeure events from any angle.”

15. Hence, we are inclined to accept the contention of the complainant in the light of Devasis Rudra (Supra) that he cannot be made to wait for indefinitely for the flat to be handed over. Having promised possession of the apartment within 36 months, the opposite party cannot now claim that time was not of the essence. This issue has been clearly settled in the case of Ireo Grace Realtech Pvt. Ltd., vs Abhishek Khanna and Others – Civil Appeal no. 5785 of 2019 decided on 11.01.2021 has held that:

“19.2 The aforesaid clauses reflect the wholly one-sided terms of the Apartment Buyer’s Agreement, which are entirely loaded in favour of the Developer, and against the allottee at every step.

The terms of the Apartment Buyer’s Agreement are oppressive and wholly one-sided, and would constitute an unfair trade practice under the Consumer Protection Act, 1986.

19.6 Section 14 of the 1986 Act empowers the Consumer Fora to redress the deficiency of service by issuing directions to the builder, and compensate the consumer for the loss or injury caused by the opposite party, or discontinue the unfair or restrictive trade practices”.

16. From the foregoing, the OP is also liable for unfair trade practice as having indicated a date for handing over possession agai

nst which deposits were collected, he failed to honour the commitment and now contends that there was neither any promise of delivery by a certain date nor was time of the essence. 17. In view of the rulings of the Hon’ble Apex Court in Pioneer Urban Land and Infrastructure Ltd., vs Govindan Raghavan and connected matter, Kolkata West International City Pvt. Ltd., vs Devasis Rudra (Supra) and findings of this Commission in Kavita Ahuja vs Shipra Estate Ltd.,, Anish Singhal vs Jaiprakash Associates Ltd.,, Rajesh Malhotra vs Acron Developers, and Shri Pradeep Narula & Anr., vs M/S Granite Gate Properties Pvt., (Supra), the contentions of the Opposite Party do not sustain. 18. In the light of the above, we accept the contentions of the complainant and accordingly allow the complaint with the following directions: a. Opposite party is directed to refund the amount of Rs.51,30,708/- along with simple interest @ 9% per annum from the respective dates of deposits till the date of repayment; b. The opposite party shall also pay Rs.50,000/- as litigation costs to the complainant; and c. Payment shall be made within three months from the date of receipt of this order failing which compensation shall be payable to the complainant with a penal interest of 12% simple interest for the period of delay.