Binoy Kumar, Member The present Appeal No. 387 of 2021 has been filed under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”) by M/s Khanna properties and infrastructures Private Limited (hereinafter referred to as the ‘Appellant/Opposite Party’) assailing the Order dated 15.10.2020 passed by the State Consumer Disputes Redressal Commission, Bhopal, Madhya Pradesh (hereinafter referred to as the ‘State Commission’) in Complaint No. 72 of 2017, whereby the Complaint filed by the Complainant was allowed. Brief facts of the case as narrated in the Complaint are that the Respondent/Complainant (Mr. Ravinder Singh Channa) booked a flat on 06.12.2013 in the Project ‘Sukh Sagar Lifestyle’ situated in Lalpur Road, Gwarighat, Jabalpur, Madhya Pradesh. The Appellant/Opposite Party assured the Respondent/Complainant that the Project will be completed by May, 2015. The Apartment Buyer Agreement was signed on 06.12.2013 and total consideration of the flat as per the Agreement was Rs.22,20,000/-. He was allotted a flat no. 804, 8th floor in Tower-L.S.T, Area-1800 Sq/Ft. The Complainant stated that he had payment in the following manner as under: Date Amount Purpose and Receipt no. 11.01.2013 5,00,000/- Booking Advance 11.01.2013 5,00,000/- Booking Advance 16.12.2013 3,44,000/- Advance given vide receipt no. 1305 dated- 16.12.2013 07.04.2014 2,58,000/- Advance given vide receipt no. 2086 dated- 07.04.2016 25.07.2014 2,58,000/- Advance given vide receipt no. 2181 dated- 25.07.2014 19.01.2015 2,58,000/- Advance given vide receipt no. 2211 dated- 19.01.2015 Total 21,18,000/- Twenty One Lakh Eighteen Thousand Only 4. The Respondent/Complainant stated that when the Appellant/Opposite party could not complete the construction by May 2015, he sent letter dated 27.02.2017 and 20.03.2017 to the Appellant to refund the principal amount alongwith interest. He further stated that neither possession of the flat was given to him nor reply to the above letter was given by the Appellant/Opposite Party. 5. As per the Respondent/Complainant averments, the aforesaid acts, on the part of the Appellant/Opposite Party, amounted to deficiency in service. When the grievance was not redressed, the Respondent/Complainant filed a Complaint before the State Commission, Bhopal, Madhya Pradesh with the following prayer :- “ It is therefore prayed before the Hon’ble Court that the Hon’ble Court may kindly be pleased to accept the Complaint of the Complainant and thereby direct the non-applicant to pay the amounts of Rs.21,18,000/- to the Complainant, due to the default in service on the part of the non-applicant in respect of the said flat along with interest 18 % per annum also an amount of Rs.10,000/- in lieu of physical and mental compensation and also to pay 25,000/- as litigation expenses.” 6. The Appellant/Opposite Party in its written version resisted the Complaint by stating that the Complaint of the Respondent/Complainant has booked the flat for commercial purpose. It was further averred that it had received only Rs.14,00,000/- ( Fourteen Lakh Only) out of Rs.21.18 Lakh as stated by the Complainant. 7. The State Commission allowed the Complaint by issuing following directions to the Opposite Party/Appellant: “ Therefore, this Complaint case is allowed/accepted and respondent is directed to pay an amount of Rs.21.18 Lakh within a period of two months and also to pay simple interest of 9% per annum upon the above said amount from 19.01.2015 i .e. the last date of depositing installment till realization date. The respondent also to pay an amount of Rs. 5,000/- (Five Thousand Only) as litigation expenses to the Complainant. 8. Aggrieved by this Order passed by the State Commission, Appellant/Opposite Party has filed First Appeal No. 608 of 2021 before this Commission with the following prayer : (a) Kindly Set aside the Order dated 06.02.2020 passed by the Hon’ble State Consumer Dispute Redressal Commission, Punjab in Consumer Complaint No. 551 of 2019. (b) Pass such further and other Order as the Hon’ble Court may deem fit and proper in the interest of justice. The Opposite Party/Appellant raised following issues in its Appeal which reads as under: a. Respondent/Complainant is not a consumer under the Act as he had purchased 2 flats. b. The State Commission erroneously held that there is deficiency in service by the Appellant and the Respondent had paid Rs. 5,00,000/- twice at the time of booking. c. The State Commission has made false presumption that usual period for completion of a project is 2 years. It further submitted that any good project shall take atleast 5 years to be completed. There is no material on record to substantiate that the Appellant has promised to hand over possession by May 2015. The Project was completed on January 2017. 9. We have heard the learned Counsel for both the Parties and perused the material available on record. 10. We will deal with the preliminary objections of the Appellant. The objection of the Appellant/Opposite Party that the Respondent/Appellant is not a Consumer under the Act as he had purchased 2 flats is devoid of merit. In this regard attention is drawn to Order of this Commission in Sai Everest Developers v. Harbans Singh Kohli, 2015 SCC OnLine NCDRC 1895 decided on 21.07.2015, wherein it was held as under: “the Opposite Party should establish by way of documentary evidence that the Complainants were dealing in real estate or in the purchase and sale of the subject property for the purpose of making profits.” In the Instant case, there is no such Evidence filed by the Appellant/Opposite Party to establish its case that the said flat was purchased for the purpose of trading in real estate other than self-use. Therefore, this argument of the Opposite Party does not hold good. 11. The objection of the Appellant/Opposite Party that the State Commission has wrongly presumed that the time period for completion of project was 2 years and that any good project takes 5 year for completion is devoid of merit. It is pertinent to note that there was no delivery time given in the Agreement which is a deficiency in service. In this regard attention is drawn to Order of the Hon’ble Supreme Court in Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., Civil Appeal No(s). 3533-3534 of 2017 decided on 12.03.2018, wherein it was held as under: “Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the Agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draws us to an irresistible conclusion that there is deficiency of service….” The Appellant/Builder cannot arbitrarily choose any time period for it own convenience, if it is not given in the Agreement. We are inclined to consider 3 years as a reasonable time period for construction of the Project. 12. The main objection of the Appellant/Opposite Party is that the Respondent/Complainant has not paid the amount of Rs.5,00,000/- twice, but actually only once. The Appellant has cited two receipts viz. a “Katcha” receipt dated 11.01.2013 for an amount of Rs.5 lakh towards booking advance. The second receipt is dated 11.01.2013 as a booking advance for the same amount. Both the receipts are towards booking advance. It is not possible that the Complainant will pay booking advance twice. We are of the view that the second receipt which carries correction is the “Pucca” receipt as averred by the Appellant. Further in the Agreement dated 06.12.2013, the amount of booking advance is shown as Rs.5,00,000/- only. So the contention of the Appellant that Rs.5,00,000/- was paid only once has merit. On disallowing the payment of Rs.5 lakhs, the total net payment made by the Complainant is Rs.16.18 lakhs only. 13. We find that there is no doubt to the fact that there has been an unreasonable delay in handing over the possession of the flat. While the State Commission has presumed two years for the completion of the Project which would be by December, 2015, we are going to allow three years as reasonable time for completion. This would mean December, 2016. But the building was not yet constructed even after 3 years. The Learned Counsel for the Respondent argued that the building is still not completed as on this date. So the delay is more than 5 years with no clarity regarding completion. The Respondent/Complainant cannot wait for an indefinite time as he had invested heavy amount with the intention to get the possession of the Unit on time. There are a number of Case Laws wherein the Hon’ble Supreme Court decided favorably on the right of the buyers for getting refund of their money in case of undue and unreasonable delay by the Developer in giving possession in terms of the Agreement. 14. Reliance is placed on the Judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. DevasisRudra, II (2019) CPJ 29 SC, decided on 25.03.2019 wherein it has observed as hereunder : “.....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified.” 15. In another Landmark judgement of Hon’ble Supreme Court, titled Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan, ll (2019) CPJ 34 (SC), decided on 02.04.2019, it was held as under: “We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the 22 Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest”. 16. In view of the discussion above, the Order of the State Commission is partly allowed. The Appellant/Opposite Party is directed to Refund Rs.16.18 lakhs to the Respondent/Complainant alongwith delayed compensation @ 9% per annum simple interest within a period of two months from the date of this Order. Any delay beyond two months will carry as interest rate of 12% per annum simple interest for the same period. | 
