Chandigarh

StateCommission

CC/332/2017

Harpreet Chawla - Complainant(s)

Versus

Emaar MGF Land Ltd. - Opp.Party(s)

Gaurav Bhardwaj, Adv.

28 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	332 of 2017
Date of Institution	:	18.04.2017
Date of Decision	:	28.08.2017

Harpreet Chawla W/o S.Nirmal Mohan Singh Chawla, H.No.1026, Sector 37-B, Chandigarh.

……Complainant

V e r s u s

Emaar MGF Land Ltd., SCO No. 120-122, First Floor, Sector 17-C, Chandigarh, through its Manager.
HDFC Ltd., SCO No.153-155, Sector 8-C, Chandigarh, through its Branch Manager.

.... Opposite Parties

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER

Argued by:

Sh. Gaurav Bhardwaj, Advocate for the complainant.

Sh. Ashim Aggarwal, Advocate for Opposite Party No.1.

Ms. Anjali, Advocate for Opposite Party No.2.

PER PADMA PANDEY, MEMBER

The facts, in brief, are that the complainant was willing to have a commercial space of her own near Chandigarh for education consultancy and coaching for earning her livelihood by way of self employment, so she applied for a unit in ‘Central Plaza’ Sector 105 in the project “Mohali Hills” with Opposite Party No.1 by depositing the registration amount of Rs.6,91,003/- on 25.03.2008. Copy of rent deed and receipt are Annexures C-1 & C-2. Thereafter, Plot Buyer’s Agreement was executed between the complainant and Opposite Party No.1 on 28.03.2008 – Annexure C-3 (colly.). It was further stated that unit No.49, Top Floor, having super area of 1477 sq. ft. and premises area of 854 sq. ft. with one car parking was provisionally allotted vide letter dated 09.04.2008 for a total consideration of Rs.49,21,459/-. Thereafter, the complainant paid the amount of Rs.4,60,669/- vide receipt dated 10.06.2008 & Rs.4,60,669/- vide receipt dated 22.11.2008 (Annexures C-5 & C-6). It was further stated that the construction at the site never started and the installments were to be paid from the start of construction and, therefore, the complainant did not pay any amount to Opposite Party No.1. It was further stated that initially, it was a time based plan and then it was construction based plan. The complainant was asked by Opposite Party No.1 to deposit the amount, as construction has started. Therefore, the complainant approached Opposite Party No.2 and availed a loan of Rs.34 lacs by signing Tripartite Agreement on 15.03.2011 – Annexures C-8 & C-9. As such, amount of Rs.26,03,345/- was duly paid by Opposite Party No.2 to Opposite Party No.1 on 24.03.2011. It was further stated that Opposite Party No.1 demanded service tax of Rs.56,058.05 on the amount of Rs.26,03,345/- and Rs.7726/- as service tax, which were duly deposited on 17.10.2011 & 17.10.2013 vide receipts (Annexures C-13 & C-14). As per Clause 22.1 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of execution of the Agreement with grace period of 90 days, failing which, penalty of Rs.50/- per sq. ft. per month is to be paid for the period of delay beyond three years till offer of possession and the amount so accrued shall be adjusted in the last installment. It was further stated that the complainant was shocked to receive a letter dated 20.02.2014 (Annexure C-15) from Opposite Party No.1, vide which, the allotment of the complainant was cancelled and an amount of Rs.30,31,344/- was shown as refundable. Then, the complainant approached Opposite Party No.1 and obtained an account statement. As per the said statement, the balance amount due was only Rs.4,15,834/- and delayed payment charges of Rs.6,51,440/- was also mentioned and total balance was shown as Rs.10,67,274/- (Annexure C-16). The complainant protested the cancellation and gave a written request to Opposite Party No.1 to refund the amount alongwith interest. Copy of the letter dated 31.05.2014 and postal receipt are Annexures C-17 & C-18. It was further stated that the cancellation was not done by Opposite Party No.1 and Opposite Party No.1 apologized that the letter has been wrongly sent. Thereafter, the complainant received an email dated 21.05.2015, vide which, the complainant was informed that possession is ready and Opposite Party No.1 received the occupation certificate and it demanded an amount of Rs.31,18,799/- from the complainant – Annexures C-19 & C-20. It was further stated that the complainant visited the site and found that the work is not complete because electricity, water connections and sewage system was not available and unit was not complete due to lack of amenities. It was further stated that only paper possession was offered after more than four years from the stipulated date of delivery. It was further stated that the complainant deposited an amount of Rs.42,79,470/- out of the total price of Rs.49,21,459/- but the Opposite Parties failed to deliver physical possession to the complainant, despite repeated requests and visits. It was further stated that the aforesaid acts, on the part of Opposite Party No.1, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2. Opposite Party No.1, in its written version, has taken objection regarding arbitration clause in the Agreement, and also it separately, moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was stated that the complainant is proprietor of ‘connect overseas’ and the said connect overseas has more than 7 offices across Chandigarh, Punjab and Haryana, as is clear from the website, mentioned in para No.4 of its written statement. However, it is clear that purchase of space was with view to expand the business and earn huge profits for commercial purposes, therefore, the complainant did not fall within the definition of “Consumer” as defined under Section 2(d) of the Consumer Protection Act, 1986. It was further stated that the complaint is time barred, as the complainant herself alleged that she sought refund in 2014. It was further stated that possession was offered on 21.05.2015 and the complainant has chosen to await till the fag end of 2 years from that date and filed complaint only in April, 2017. It was further stated that this Commission has no territorial jurisdiction to entertain the complaint, as the impugned property is located at Mohali and registered office of Opposite Party No.1 is at New Delhi and as per settled law, a company can be sued only at the place its registered office is located. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint. It was admitted regarding booking of the unit ; execution of the Agreement ; allotment of the unit and receipt of the amount of Rs.42,79,470/- against the unit, as per statement of account (Exhibit OP/4). It was denied that the construction at the site never started. It was further stated that the construction started in 2009 and the complainant availed the loan from HDFC Bank for Rs.34 lacs. It was further stated that the complainant is a defaulter because every time, she made a default at the time of making payment and accordingly, the complainant is liable to pay approx. Rs.10 lacs against delayed payment charges. It was denied that the possession of the plot was to be delivered within 36 months with the grace period of 90 days from the date of Agreement. As per Clause 21 of the Agreement, the Company proposed to handover possession of the unit within 36 months from the date of allotment plus a grace period of 90 days and in case of delay, the interest of customers was protected by the penalty clause under the Agreement. It is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract more so when there is penalty clause under the Agreement for any alleged delay. It was further stated that the cancellation letter was served due to non payment, as mentioned in the letter dated 20.02.2014. The amount of more than Rs.4 lacs was outstanding as on 20.02.2014. It was further stated that the amount of Rs.19,74,511/- is due on account of basic price in addition to the delayed payment charges of Rs.10,35,216/- as is clear from statement of account. It was further stated that the replying Opposite Party offered possession of the plot vide letter dated 21.05.2015 on completion of all the amenities. The Occupation Certificate for the said unit was received on 18.11.2014, however, the complainant failed to take possession of the same for the reasons best known to her. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Party, nor it indulged into unfair trade practice.

3. Opposite Party No.2 in its written statement has stated the complainant was granted loan of Rs.34 lacs on 18.02.2011 and the replying Opposite Party disbursed an amount of Rs.26,03,345/- to Opposite Party No.1 on 24.03.2011. It was further stated that tripartite Agreement was executed between the parties and in case of cancellation of the unit or termination of the Agreement, the HDFC Limited has the first charge/right to seek apportionment of its due. It was further prayed for dismissal of the complaint qua Opposite Party No.2.

4. The Parties led evidence, in support of their case.

5. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

6. The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled Mrs.Anjani Dass Vs. DLF Universal Limited, Complaint Case No.295 of 2017, decided on 19.07.2017. Para No.12 of the said order, inter-alia, being relevant, is extracted hereunder:-

“12. At the time of arguments, it was also argued by Counsel for the opposite parties that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication.

We are not going to agree with the argument raised. This Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126 has already elaborately dealt with this question, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6 SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Furthermore, under similar circumstances, the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016, held as under:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

Furthermore, the National Commission in a case titled Omaxe Limited Vs. Dinesh Lal Tarachandani, First Appeal No.1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder (Omaxe), held as under:-

“We are unable to persuade ourselves to agree with the Learned Counsel. In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon’ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. Vs. M/s Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon’ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors. (Supra) still holds good, no fault can be found with the view taken by the State Commission.

Consequently, the Appeal fails and is dismissed accordingly.”

Recently, the larger Bench of the National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

In view of the above, argument raised by Counsel for the opposite parties, in this regard, being devoid of merit is rejected.”

In view of the above, the objection raised by Counsel for Opposite Party No.1, being devoid of merit, is rejected.

7. The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that receipt/acknowledgment cum receipt (Annexures C-2, C-5, C-12, C-13) and letters (Annexures C-4, C-7, C-15) annexed by the complainant was sent by Opposite Party No.1 from its Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by Opposite Party No.1, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

8. Another objection taken by Opposite Party No.1, with regard to pecuniary jurisdiction, also deserves rejection. As per admitted facts, the complainant has sought refund of amount of Rs.42,79,470/- alongwith interest @15% p.a. from the date of deposit till actual payment to the complainant; compensation to the tune of Rs.5 lacs and cost of litigation to the tune of Rs.55,000/-. Even the issue, whether interest is to be counted when looking into pecuniary jurisdiction of this Commission, came up for consideration in the case of Surjit Singh Vs. M/s Emaar MGF Land Pvt. Ltd. and another, Consumer Case no. 484 of 2016 decided on 15.12.2016, wherein, after noting similar objections it was observed as under:-

“13. Now we will deal with another contention of the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/-. It is argued by Counsel for the opposite parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.

14. In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint. However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties. Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

15. It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition, it was observed as under:-

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

16. In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission. If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

In view of above, this objection taken by Opposite Party No.1 that this Commission lacks pecuniary jurisdiction, being devoid of merit, fails and the same stands rejected.

9. It has vehemently been contended by Counsel for Opposite Party No.1 that the complainant is proprietor of ‘Connect Overseas’ and the said connect overseas has more than 7 offices across Chandigarh, Punjab and Haryana, as is clear from the website, mentioned in para No.4 of its written statement. As such, the purchase of space was with view to expand the business and earn huge profits for commercial purposes. Therefore, the complainant did not fall within the definition of “Consumer” as defined under Section 2(d) of the Consumer Protection Act, 1986.

We are not going to agree with the contention raised. There is nothing on record to show that the space was purchased by the complainant to earn profits, in future, by selling it at a higher premium. The complainant is not the property dealer and deals in the sale and purchase of property, on regular basis, and as such, there is no evidence to show that the space/unit, in question, was purchased by her, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Similar controversy, as to whether the complainant(s) on purchase of a shop/unit would fall within the definition of consumer complaint, came up for consideration, before this Commission, in a case titled as M/s Chandigarh Overseas Private Limited Vs. Easow Mathew, First Appeal No.284 of 2015, decided on 25.01.2016. Taking note of similar contentions, this Commission, gave findings as under:-

On interpreting provisions of application form for allotment/agreements, and other documents on record, the Forum came to the conclusion that construction at the project, was to be completed by 18.01.2010, however, it was not done and possession of the unit, was not delivered, as per promise made by the opposite parties. Defence taken by the appellant that the respondent was not a consumer was righty rejected, by observing as under:-

“As we have already observed, the complainant has specifically pleaded in his complaint that he wanted to settle a business for himself for earning his livelihood and to become an independent business owner, he agreed to purchase the said unit of 100 sq. ft. in Design Studio No.12. The complainant has also pleaded that he is a consumer as per the provisions of the Consumer Protection Act as the said unit was purchased by him for earning his livelihood. The allegations of the complainant are supported by his own affidavit. The OPs have not produced any such evidence that the complainant is a property dealer dealing in the sale and purchase of real estate. The total area of the unit purchased by the complainant from the OPs is only 100 sq. ft. which is for small investors. Since the complainant wanted to settle a business for himself for earning his livelihood, it cannot be inferred that the said unit was purchased by him with the sole motive of earning profits. As far as the contention of the learned counsel for the OPs that the complainant is not qualified to run his unit in the project is concerned, it was the duty of the OPs to verify the same before accepting the application for allotment of the unit whether he was eligible under “Small Investor Scheme” or not. At this stage, such an objection is not tenable. In Arun Mandhana Vs. Chandigarh Overseas Pvt. Ltd. & Anr., Consumer Complaint No.19 of 2012 decided on 12.10.2012 and Ruchira V. Arora Vs. M/s Chandigarh Overseas Private Limited, First Appeal No.8 of 2013 decided on 1.3.2013, our own Hon’ble State Commission in somewhat similar circumstances in the complaints against the same very OPs held that the size of the studio was small and the sale price of the said studio was also not too high, therefore, it was established that the complainant never intended to run commercial activity in the studio on a large scale with a view to earn huge profits and he fell within the definition of consumer.”

Contention of Counsel for the appellant that the respondent was not a consumer also needs to be rejected, taking note of ratio of the judgement of the National Commission, titled as Kavit Ahuja Vs. Shipra Estate Limited and Jai Krishna Estate Developers Private Limited, Consumer Complaint No.137 of 2010, decided on 12.02.2015. Similar objection was raised, in that case. The National Commission while interpreting the provisions of Section 2 (1) (d) of the Act, held as under:-

“Going by the Dictionary meaning of the expression ‘Commerce’ as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged. In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services. It would ordinarily include activities such as manufacturing, trading or rendering services. 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.

By noting ratio of the judgment of the Hon'ble Supreme Court of India, titled as Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, it was stated by the National Commission in that case that the word commercial purpose is a question of fact to be decided in the facts of each case. It is not value of the goods, which matters, but the purpose, for which the goods bought are put to, needs to be noted. Same would be clearly applicable to, for hiring or availing services. In the present case, application to purchase a unit, was moved in the year 2006. Out of Rs.5 lacs, an amount of Rs.4,75,000/- stood paid, for purchase of the built-up unit. Rest of the amount was to be paid, at the time of possession of the unit. In the year 2009, when completion of the project was not visible, under above circumstances, when buyback offer was made by the appellant on 22.06.2009, may be on account of frustration in not getting possession of the unit, in time, it was accepted by the respondent, on 04.08.2009 vide letter Annexure C-7. On account of that act, the respondent cannot be excluded from the definition of a consumer. Even otherwise, as has been observed by the National Commission, in the case of Kavit Ahuja's case (supra), that surplus funds can be invested, in such a manner, in purchasing property/unit(s), to earn better returns, in future and unless there is evidence on record that the purchaser thereof, was indulging into sale and purchase of unit(s), on regular basis, he would fall within the definition of a consumer.”

10. In the instant case, it is specifically stated by the complainant in para No.1 of her complaint that she is in the field of education and is providing coaching and consultation for IELTS etc. It is further stated that the complainant is earning her livelihood by way of self employment through the same and is working from a rented premises in Sector 17, Chandigarh. She specifically stated in her complaint that she was willing to have a commercial space of her own near Chandigarh for earning her livelihood by way of self employment. Had the complainant purchased two spaces, in the project of Opposite Party No.1, in that event, it would have been said that the same had been purchased by her, for commercial purpose, with a view to gain huge profits and, as such, she did not fall within the definition of consumer. There is nothing, on record, that the complainant owned any other space, in the tricity, in her name. On the other hand, Opposite Party No.1 failed to produce on record any evidence that the complainant was property dealer or she intended to purchase the commercial space/space, by way of investment, with a view to sell the same, in the event of escalation in prices or to rent out the same. The complainant, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Party No.1, in its written reply, therefore, being devoid of merit, is rejected.

11. Another objection raised by Opposite Party No.1 that since it was mentioned in the Agreement that the Company shall endeavour to deliver possession of the unit within maximum period of 36 months, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 22.1 of the Agreement that possession of the unit will be delivered by Opposite Party No.1, within a maximum period of 36 months from the date of signing of the Agreement, subject to force majeure circumstances or reason beyond the control of Opposite Party No.1. In the instant case, Opposite Party No.1 did not raise any force majeure circumstances, if any, encountered by it. In the absence of any force majeure circumstances having been faced by Opposite Party No.1 or any other valid and legal reason beyond its control, the stand taken by it, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 22.1 of the Agreement, Opposite Party No.1 was bound to deliver possession of the unit, within a maximum period of 36 months from the date of signing of the Agreement, as such, time was, unequivocally made the essence of contract.

Even otherwise, Opposite Party No.1 cannot evade its liability, merely by saying that since the word tentative/ proposed was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof. It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of Opposite Party No.1 in this regard also stands rejected.

12. The next question, that falls for consideration, is, as to within which period, the delivery of possession of the space/unit, was to be given to the complainant. In this regard Clause 22.1 of the Central Plaza Premises Buyer’s Agreement (Annexure C-3) reads thus :-

“22.1 Subject to Force Majeure conditions and reasons beyond the control of the Developer and subject to the Allottee not being in default of any of the provisions of this Agreement and having complied with all provisions, formalities, documentation etc. and the terms and conditions of this Agreement, the Developer proposes to hand over the possession of the premises within a period of thirty-six (36) months from the date of signing of this Agreement. The Allottee agrees and understands that the Developer shall be entitled to a grace period of ninety (90) days, after the expiry of thirty-six (36) months for applying and obtaining the occupation certificate in respect of the CENTRAL PLAZA.”

In view of the afore-extracted clause, it is clear that possession of the unit was to be delivered to the complainant within a maximum period of 36 months from the date of signing of the Agreement. In the instant case, the Agreement was executed between the parties on 28.03.2008 and, as such, possession was to be delivered to the complainant latest by 27.03.2011. However, Opposite Party No.1 sent letter of intimation of possession dated 21.05.2015 (Annexure C-20) i.e. after a delay of more than four years.

13. The next question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, in respect of the unit, in question, when the same was offered to him vide intimation of possession letter dated 21.05.2015 (Annexure C-20), i.e. after a huge delay of more than four years and that too, in the absence of any force majeure circumstances. Since, in the instant case, the Agreement was executed between the complainant and Opposite Party No.1 on 28.03.2008 and Opposite Party No.1 was bound to give possession within a maximum period of 36 months, which was expired on 27.03.2011. Opposite Party No.1 offered intimation of possession only vide letter dated 21.05.2015 i.e. after a huge delay of more than four years. No doubt, a plea is taken by Counsel for Opposite Party No.1 that since Opposite Party No.1 has already received Occupation Certificate on 18.11.2014 (Exhibit OP/6) in respect of the project, in question, as such, it could very well be said that the development at site was complete and that Opposite Party No.1 was in possession of all the necessary approvals/sanctions and was ready to offer/deliver possession of the unit to the complainant. It may be stated here that non-delivery of possession of the unit, in question, by the stipulated date, complete in all respects, is a material violation of the terms and conditions of the Agreement. It is not the case of Opposite Party No.1 that the said delay occurred, on account of force majeure circumstances, met by it, on account of some stay or any other valid reason. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon`ble National Commission, held as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the Complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

Even the judgment passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided on 03.07.2015.’ The relevant portion of the judgment reads thus :-

“16. Admittedly, appellants did not offer possession of the apartment within the prescribed period, in terms of Clause 21 of the “Apartment Buyer’s Agreement”, Moreover, no explanation has been given by the appellants as to why they did not offer the possession of the apartment by the stipulated period, though respondents had paid substantial amount. As per copy of the Statement of Account filed by the appellants, as on 04-Sep-2012 (Page No.133 of Paper Book of F.A. No.462 of 2014), the respondent has paid a sum of Rs.41,45,068/- out of the total sale price of the apartment, which was Rs.48,65,580.50. Thus, deficiency on the part of the appellants started right from that very moment. It is an admitted fact, that as per the agreement possession of the apartment was to be handed over latest by 23.8.2011. But the appellants admittedly offered the possession of the apartment for the first time only in the year 2013. When the appellants did not offer the possession of the apartment in question within the specified period, under these circumstances, the respondents were fully justified to refuse the offer of possession, as late as in the year 2013. Thus, appellants themselves have violated the relevant terms and conditions with regard to handing over of the possession. Now it does not lie in their mouth to blame the respondents for their own negligence (i.e. of the appellants). Therefore, appellants by not delivering the legal physical possession of the apartment within the prescribed period, are not only deficient in rendering service but are also guilty of indulging into unfair trade practice. The appellants in the present case are enjoying the hard earned money of the respondents since 2008. Now on one pretext or the other, appellants do not want to refund the same, though negligence on the part of the appellants, is writ large in this case.”

The aforesaid appeal was dismissed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi with punitive damages. Aggrieved against the aforesaid order, Emaar MGF Land Limited filed Special Leave to Appeal (C) No(s). 32492/2015 before the Hon’ble Supreme Court of India and the same was also dismissed.