1. The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Party as detailed above, inter alia praying for directions to the OP to:-

1.     Refund the entire amount paid by the complainant;
2.     Grant compensation to the tune of Rs. 5 lakhs for mental harassment and agony;
3. Costs incurred by complainant in filing complaint.

2. Notice was issued to the OP on 07.12.2018.  Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A.  The details of the flats allotted to the Complainant /other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure-A.

3. It is averred/stated in the Complaint that:

1. The complainant booked a villa No. 48 in residential projet of OP called “The Villas Mohali Hills” in Sector 106, Mohali for a consideration of Rs. 1,20,43,300/- on 13.03.2008. Complainant entered into buyers agreement on 12.06.2008 with OP. The possession was to be handed over within 24 months i.e., upto 12.06.2010.

2. The officials of OP requested to allot Villa no. 43 in lieu of Villa no. 48 via letter dated 02.03.2011 on which complainant agreed. That the complainant has been paying instalments and paid the whole amount but OP has not been given the possession of Villa. OP neither delivered physical possession of plot nor refunded the money, hence the cause of action still continues.

4. The OP in their written statement/reply stated that:

1. The complainant is not a consumer and complainant’s purpose was only investment/ commercial gains. That the OP offered possession on 03.06.2014. The present complaint filed on 10.09.2018 is beyond the period of two years and is barred by limitation. That the complainant has been offered an alternative unit of their choice, based on their request but complainant failed to pay the balance consideration of the said unit.
2.  The Occupancy Certificate has already been obtained by OP in 2014, which the complainant has been informed via letter of intimation of possession dated 03.06.2014. The complainant has failed to take possession and defaulted in making payments which in turn resulted in delay in construction.   

5. Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
6.  Main contention of the OP is that possession was offered on 03.06.2014, while the complainant denies having received any such offer of possession on 03.06.2014. OP contends that complainant failed to make payment of dues as per of possession dated 03.06.2014. Along with written statement, OP enclosed copies of letter dated 03.06.2014, 05.07.2014, 22.07.2014, 25.08.2014, 31.03.2015, 14.05.2015, 11.02.2016 Annexure R-1 (Colly.). A perusal of letters dated 03.06.2014 titled ‘intimation of possession’ shows that OP demanded certain payments from the complainant by 04.07.2014. However, subsequent letter dated 05.07.2014 refers to a ‘payment request/ demand notice’ dated 04.06.2014, but bears no reference to offer of possession/intimation of possession letter dated 03.06.2014. Similarly, subsequent letter dated 22.07.2014 and 25.08.2014 bears a reference to earlier letter dated 05.07.2014, but no reference to intimation of possession letter dated 03.06.2014. Although letter dated 31.03.2015, 14.05.2015, 11.02.2016 makes a reference to ‘intimation of possession’ letter, but not to any letter dated 03.06.2014. The OP could not place on record any proof/evidence of ‘intimation of possession’ letter dated 03.06.2014 having been issued. Hence, we tend to agree with the contention of Complainant that no possession letter dated 03.06.2014 as alleged by OP, have been issued. 

7.  The objection that the Complaint is barred by limitation is not accepted. The OP have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that complainant is not a consumer as he has purchased the unit for commercial purpose is also rejected as no such evidence has been adduced by the OP in this regard. It has been observed by this Commission in various cases (Kavita Ahuja Vs Shipra Estates Ltd, CC 137 of 2010, decided on 12.02.2015, Santosh Johri Vs M/s Unitech Ltd, CC 429 of 2014 and connected Cases, decided on 08.06.2015, Aloke Anand Vs M/s Ireo Grace Pvt Ltd & Others, CC no 1277 of 2017 decided on 01.11.2021) that purchase of a house can only be for a commercial purpose if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose.  The contention of the OP that the parties are bound by the agreement is also not acceptable. In Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan  (2019) 5 SCC 725, Hon’ble Supreme Court observed that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.”

8. In the instant case, committed date of possession with grace period was 12.12.2010. So far possession has not been handed over. There is an inordinate delay in handing over the possession of villa by the OP. It was held by Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512, “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency”.  In Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra- (2020) 18 SCC 613, Hon’ble Supreme Court observed that “A buyer can be expected to wait for possession for a reasonable period.”. Hence, the complainant in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP.

9. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

(i) The OP shall refund the entire principal amount of Rs.1,15,29,972/- (Rupees One crore fifteen lakh twenty nine thousand nine hundred and seventy two only) to the complainant, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund.  The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.

(ii) The OP shall pay a sum of Rs.25,000/- as cost of litigation to the           complainants.      

(iii) The payment in terms of this order shall be paid within three months from today.

(iv) In case the complainant has taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.

10. The pending IAs, in the Consumer Complaint, if any, also stand disposed off.

*Subsequently changed to Villa No. 43