1.      Heard Mr. Aditya Parolia, Advocate, for the complainants and Mr. Aditya Narain, Advocate, for the opposite party.

2.      Ashish Dhingra and Rishi Pahuja have filed above complaint for directing the opposite party to (i) refund Rs.9052908/- with interest @18% per annum from the date of respective deposit till the date of realization; (ii) pay Rs.1500000/-, as compensation for mental agony and harassment; (iii) pay Rs.200000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that Emaar MGF Land Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a group housing project in the name of “Palm Gardens”, at village Kherki Dhaula, Sector-83, Gurgaon, in the year 2010 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, the complainants booked an apartment on 09.03.2011 and deposited booking amount of Rs.750000/-. The opposite party provisionally allotted Unit No.PGN-06-1202, Tower-6, super area 1900 sq.ft. and executed Buyer’s Agreement on 21.04.2011, in which total cost was mentioned as Rs.9711253.59. Annexure-3 of the agreement provides payment plan as “construction link payment plan”. The opposite party had been realizing instalments without completion that mile stone. The opposite party realized instalment of ‘completion of internal flooring’ on 31.08.2015. The complainants paid the instalments on time as per demand of the opposite party and paid Rs.9052908/- till October, 2016. The opposite party has charged Rs.285000/- showing ‘green view’ and Rs.190000/- for corner flat, showing green area across the boundary in front of the apartment of the complainants, but that land has not been acquired by the opposite party. The opposite party represented that the project land has connectivity with Dwarka Expressway through 24 meter wide road but it is also not part of the project land. Without any information to the home buyers, the opposite party revised ‘layout plan’ in July, 2016. Clause-10(a) of the agreement provides that the opposite party shall deliver possession within a period of 36 months from the date of start of the construction. The construction was started on 09.08.2012 and period of 36 months expired on 08.08.2015. Palm Gardens Home Buyers Welfare Association moved a representation dated 28.06.2016, for giving final date for delivery of possession. After persuasion, a meeting was held on 06.08.2016, with the officers of the opposite party, in which they assured that possession would be delivered by December, 2017. The construction was not progressed with appropriate paces so that possession would be delivered in December, 2017. Then Palm Gardens Home Buyers Welfare Association again held a meeting with the officers of the opposite party on 04.03.2017, then the opposite party again shifted expected date as ‘application for occupation certificate’ in May, 2018. The opposite party has charged Rs.300000/- towards ‘car parking’, although the opposite party was not entitled to charge it. The opposite party has realized about 24% of BSP towards taxes, which is exorbitant. EDC & IDC, PLC, IFMS etc. were also realized exorbitantly. The various amenities as promised were missing. Due to inordinate delay in delivery of possession, the purpose of buying the flat was frustrated. Then this complaint was filed on 25.07.2017, alleging deficiency in service.

4.      The opposite party filed written reply on 02.11.2017, in which, booking of the apartment, allotment of the apartment, execution of the agreement and deposits made by the complainants, have not been denied. The opposite party stated that Director, Town and Country Planning, Haryana, granted licence for development to the opposite party on 18.12.2010 and approved the project on 20.07.2011. The building plan was sanctioned on 22.03.2012. The opposite party obtained the approvals/NOC from other departments and started construction in August, 2012. The complainants and various buyers committed defaults in timely payment of the instalments. The opposite party issued payment reminders to the complainants dated 13.08.2012, 28.01.2013, 01.10.2013, 02.12.2013, 03.03.2014, 01.08.2014 and 01.09.2015. For delayed payment of the instalment, Rs.6910/- was levied as interest upon the complainants. Due to paucity of the fund, the construction proceeded with slow pace. The land of 726 sq.yard shown as green area is in the ownership of many persons including the opposite party. Other co-owners have no objection in respect of that land and it will remain as green area. It has been denied that Rs.285000/- and Rs.190000/- were charged due to that portion of the land. The complainants have been allotted a covered car parking, for which, Rs.300000/- has been charged. Under clause-9(f) of the agreement, the complainants have agreed to pay sales tax, VAT, service tax etc. which are statutory liability. Other charges such as EDC/IDC, PLC, IFMS, Club membership etc. are payable as per agreement. EDC/IDC have been realized on pro-rata basis from the buyers. 25 years warrantee for the lift will be provided by the lift vendor from the date of handing over possession. 24 meter wide sector road was never part of “Palm Gardens” project. It has to be constructed by Haryana Urban Development Authority. As per clause-4 of the agreement, the opposite party had right to revise layout plan and no consent of the buyers is required. It has been denied that due to revision of layout, the project was materially changed. The opposite party completed construction of Tower-6. As soon as “occupation certificate” is issued possession will be offered to the buyers. Clause-10 of the agreement cannot be read in isolation. A joint reading of clauses-1.2(b), 1.2(h), 10, 12 and 26 makes it clear that time for delivery of possession was not an essence of the contract. Interest of the buyers has secured by providing delay compensation under clause-12(a) of the agreement. The agreement does not provide for refund with 18% interest. This Commission has no jurisdiction to alter the contract between the parties. Delay was caused for the reasons beyond the control of the opposite party and liable to be condoned under clause-26 of the agreement. Ashish Dhingra is resident of 5/7-A, Panna Lal Road, George Town, Allahabad and Rishi Pahuja is resident of 36/01, Adarsh Nagar, Alambagh, Lucknow. The complainants are not related to each other. They are speculative investors and now the market in real estate has gone down as such the complaint has been filed for refund with interest @18% per annum. The complainants do not fall within the meaning of ‘consumer’ and the complaint is not maintainable. The agreement contains an arbitration clause as such the complainants be relegated for arbitration. The complaint is liable to be dismissed.

5.      The complainants filed Rejoinder Reply, Affidavits of Evidence, Affidavits of Admission/Denial of documents of Ashish Dhingra and Rishi Pahuja and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Shipra Shabu and documentary evidence. The opposite party filed copy of letter dated 08.05.2019, offering possession to the complainants with demand of Rs.1039029/-, along with Affidavit of Evidence. The opposite party filed Additional documents through IA/1874/2019. In this application, the opposite party stated that the contract to construct the project of “Palm Gardens” was given to Infrastructure Leasing & Financial Services through agreement dated 25.04.2012. Under the agreement, the construction had to be completed within 36 months. Infrastructure Leasing & Financial Services has failed to complete the construction within stipulated period, in spite of several reminders and timely payments by the opposite party. The work was stopped several times owing to shortage of man-power, shortage of construction materials, prohibition of use of ground water etc. The opposite party then engaged M/s. Pashupati Construction & Engineering and M/s. Aryan Construction, through agreement dated 05.07.2018, who completed the project. Thereafter, the opposite party obtained “occupation certificate”. The complainants have filed written synopsis.  

6.      We have considered the arguments of the counsel for the parties and examined the record. So far as preliminary issues raised by the opposite party are concerned, Supreme Court in Emmar MGF Land Limited Vs. Aftab Singh, (2019) I CPJ 5 (SC) held that arbitration clause does exclude the jurisdiction of consumer foras. The word “consumer” has been defined under Section 2(1)(d) and word “service” has been defined under Section 2(1)(o) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which are quoted below:-

Section-2 (1) (d).- “consumer” mean any person who,-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such use is made with approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails such services for any commercial purpose;

Explanation.- For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning livelihood by means of self-employment.

Section 2(1) (o):- “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

7.      The term “housing construction” was added by Act No.50 of 1993, under Section-2(1)(o) of the Act. Earlier the Explanation was added by Act No. 50 of 1993 w.e.f. 18.06.1993 under Sction-2(1)(d)(i) of the Act. By Act No. 62 of 2002, w.e.f. 15.03.2003, Section-2(1)(d) (ii) was also amended and the term “but does not include a person who avails such services for any commercial purpose” was added in it and the Explanation was placed in last.

8.      Scope of the expressions “commercial purpose” and “exclusively for the purposes of earning livelihood by means of self-employment” came up for consideration before Supreme Court in relation to purchase of goods in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583. In which, it has been held that the Explanation was an exception to an exception. Expression “commercial purpose” has not been defined, as such, its dictionary meaning has to be taken into consideration. “Commerce” means financial transaction, especially buying and selling of merchandise on large scale. In view of the Explanation the term “large scale” has no significance. As the Explanation excludes the transaction which was done for “exclusively for the purposes of earning livelihood by means of self-employment”, from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such a buyer from the purview of the “consumer” so long as it is used by the buyer or his family members or with the help of one or two other persons. It is question of fact and has to be decided in each case independently.

9.      The interpretation of the phrase “commercial purpose” again came up for consideration in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers and others, (2020) 2 SCC 265, Supreme Court has given various guidelines for deciding the commercial purposes i.e (i) manufacturing/industrial activities or business-to-business transactions between the commercial entities. (ii) the purchase of the good or service should have close and direct nexus with a profit-generating activity then it would be terms as “commercial purpose”. In Shrikant G. Mantri Vs. Punjab National Bank, (2022) 5 SCC 42, held that it is the purpose to which the goods so bought or put is material for deciding as to whether it was for commercial purpose or not. The legislative intent is to keep the commercial transactions out of the purview of the said Act. In National Insurance Company Limited Vs. Harsolia Motors, 2023 SCC OnLine SC 409, held that the goods purchased or services availed should be used in any activity directly intended to generate profit, which is main aim of commercial purpose, in order to apply exception.

10.    In the light of aforesaid principles, the present case has to be examined. The complainants stated that they had booked the apartment for residential purpose. Only for the reason that the complainants are not related to each other, no presumption can be drawn that they had booked the apartment for sale or for any other commercial purpose. The opposite party has not adduced any evidence to prove that the complainants are engaged in the business of purchasing and selling flats. As such the complainants are consumers and complaint is maintainable.  

11.    Out of basic cost of Rs.9711253.59, the complainants paid Rs.9052908/- till October, 2016. The opposite party realized instalment of ‘completion of internal flooring’ on 31.08.2015. Clause-10(a) of the agreement provides that the opposite party shall deliver possession within a period of 36 months from the date of start of the construction. The construction was started on 09.08.2012 and period of 36 months expired on 08.08.2015. Grace period of three months also expired on 08.11.2015. Possession was offered through letter dated 08.05.2019, i.e. long after filing the complaint. There was more than three and half years delay in offer of the possession. The opposite party took plea that the construction was delayed by the contractor. But the opposite party has realized instalment on time. For some delay in payment of some instalment by the complainants, long delay of three and half years cannot be attributed to the complainants. Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, held that the home buyer cannot be made to wait for possession for an unlimited period.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants with interest @9% per annum from date of respective deposit till the date of refund, within a period of two months from the date of this judgement.