DR. SADHNA SHANKER, MEMBER 1. This appeal has been filed under section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) in challenge to the Order dated 10.09.2018 of the State Commission in complaint no. 79 of 2016, whereby the complaint was partly allowed. 2. We have heard the learned counsel for the appellant (hereinafter referred to as the ‘complainant’) and have perused the record including inter alia the Order dated 10.09.2018 of the State Commission and the memorandum of appeal. None is present for the respondents (hereinafter referred to as the ‘builder’) and they are being proceeded ex-parte. 3. There is a delay of 16 days in filing the present appeal. In the interest of justice and considering the reasons mentioned in the application for condonation of delay, the delay in filing the appeal is condoned. 4. The facts, in brief, of the case are that in January, 2012, the complainant, being influenced by the assurances and promises advanced by the builder, booked a plot No. D0081 at Rs. 36837/- per sq. mt. admeasuring 128 sq. mtrs. (total consideration Rs. 47,15,110.40) in Sushant Aquapolis, NH-24, Doondahere, Ghaziabad and paid an amount of Rs. 4.75 lakh, which was encashed by the builder on 14.01.2012. The total consideration of the plot included all the charges but the builder did not communicate the complainant with the letter of allotment and the terms and conditions of the allotment. It is alleged that the complainant as per the direction of the builder deposited half cost of the property i.e. Rs. 23,57,575.15 and the remaining payment is to be deposited at the time of the execution of the ale deed. It is alleged that the possession of the plot would be given within two years from the date of first payment i.e. 14.01.2012 but the builder failed to hand over physical possession of the plot. It is alleged that the complainant requested for allotment letter and the terms and conditions but the same were not supplied to the complainant. 5. Alleging deficiency in service as well as unfair trade practice on the part of the builder, the complainant filed a complaint before the State Commission seeking possession of the plot in question, execution of the sale deed compensation on delayed possession and other relief. 6. The builder contested the case by filing written statement raising the preliminary objection that the complainant is not a ‘consumer’ within the meaning of section 2(1)(d) of the Act, 1986 as the complainant is an investor, who had invested in Real Estate business with a motive to earn profits. It is stated that the complainant has registered himself with the answering respondent and she was allotted a plot in Sushant Aquapolis in the year 2012. It is further stated that the builder floated a scheme of Sushant Aquapolis and booking was done in January 2012 and the construction of the premises is delayed due to force majeure circumstances which interalia include delay on account of non-availability of steel and or cement or other building materials, or water supply or electric power or slow down strike or due to a dispute with the construction agency, earthquake or any act of God, delay in certain decision/clearance from statutory body or if non-delivery of possession is as a result of any notice, order or for any other reason beyond the control of the company then in any of the aforesaid event, the company shall be entitled to a reasonable corresponding extension of the time of delivery of the said premises on account of the force majeure circumstance. It is further stated that the complainant had totally paid Rs. 23,57,575.15 i.e. half of the total consideration and remaining 50% will be charged once the answering respondent start the development of the said plot. 7. The State Commission, vide its Order dated 10.09.2018, allowed the complaint in part and directed the builder to give possession of the allotted plot or plot in Sector D of the same area after development to the complainant. The State Commission also ordered that if the builder failed to give the possession of the plot to the complainant within the stipulated period of three months from the date of order, the builder shall pay interest at the rate of 10% per annum on the deposited amount till the date of giving the possession along with litigation cost of Rs. 10,000/-. 8. Not satisfied with the Order dated 10.09.2018 of the State Commission, the complainant has filed the instant appeal seeking enhancement in the compensation before this Commission. 9. Before this Commission, learned counsel for the complainant has argued that as the builder had failed to handover the plot in question, the complainant is entitled for interest from the promised date of possession (i.e. 14.01.2014) till the date of payment as has been done in identical case no. 362 of 2016. He further argued that the State Commission had ignored the ruling passed by this Hon’ble Commission in consumer complaint no. 1479 of 2015 in which this Hon’ble Commission ordered offer of possession with a penalty of Rs. 5,000/- per day to per allottee of apartment till the needful is done and interest at the rate of 12% per annum on the deposited amount. He further argued that in addition to this, compensation of Rs. 10,00,000/- towards deficiency in service and for the harassment and mental agony may also be granted to the complainant. 10. Learned counsel for the builder did not appear, however, he has filed written short synopsis. In the written short synopsis, it is stated that due to force majeure event that the stay order was passed by the Hon’ble Court of Allahabad, the builder could not execute the sale deed of the booked plot and the possession of the plot in question could not be handed within 36 months. It is further stated that the interest at the rate of 10% per annum awarded by the State Commission on the failure of the builder to hand over possession within three months from the date of the order of the State Commission is on the higher side keeping in view the decision rendered by Hon’ble Supreme Court in the case of Wing Commander Atifur Rahman Khan and Aleya Sultana and Ors. vs. DLF Southern Homes Private Limited (2020) 16 SCC 512 wherein 6% interest has been awarded in case of delay. It is further stated that the complainant has not led any evidence for his extra ordinary claim of interest @24% per annum and there is no ground to claim for rental loss as the allotment is of plot and not a flat. It is further stated in the written arguments that the complainant has failed to produce any documentary evidence to show that she intends to construct any building and live at Lucknow. It is further stated that the appeal has no merit and the same is liable to be dismissed. 11. The first issue raised by the builder is that the complainant is not a consumer, but an investor. However, no evidence has been placed on record in support of his contention. Builder’s assertion that the complainant is not a consumer within the scope of this Act lacks substantiation as the burden of proof rests on the builder and there is no evidence on record supporting this claim. In view of this Commission’s judgment in Kavita Ahuja Vs. Shipra Estate Ltd. and Jaikrishan Estate Developers Pvt. Ltd. and Ors., I (2016) CPJ 31 (NC) the onus of proof to prove the same lies upon the builder which has not been discharged. Therefore, in absence of any evidence, this contention of the builder is rejected. 12. It is not in dispute that the complainant had booked the plot. It is seen that the total sale consideration of the flat was Rs.47,15,110.40 and the complainant paid Rs. 23,57,575.15 i.e. half of the total consideration. As regards promised date of possession is concerned, the complainant has stated that the possession of the plot was to be handed over within 24 months i.e. by 14.01.2014 while the builder has stated that the possession was to be handed over within 36 months i.e. 14.01.2015 but both the parties have not filed any documentary evidence to prove the promised date of possession. Neither the allotment letter nor the agreement has been filed. 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 if specific date of possession has not been mentioned in the agreement, the opposite party is required to handover the possession within a reasonable period of three years. The home buyer cannot be made to wait for possession for an unlimited period. Considering that the three years period is a reasonable period, we are of the opinion that the possession was to be handed over within three years from the date of booking i.e. by 14.01.2015 to the complainant by the builder. 13. It is contended by the builder that delay in handing over of possession was caused due to force majeure circumstances. As noted by the State Commission, the builder has not been able to prove that the Hon’ble High Court had granted stay in respect of the land on which the plot of the complainant situated. No evidence in regard to the same was produced before us. Therefore, the contention of builder is rejected. 14. In view of the above, we are of the opinion that builder had neither executed the sale nor handed over the possession of the plot in question till date even after receiving 50% of the sale consideration of the plot. This act of the builder constitutes deficiency in service on its part. 15. The Hon’ble Supreme Court in the case of DLF Homes Panchkula Pvt. Ltd. vs. D.S. Dhanda, in CA Nos. 4910-4941 of 2019 decided on 10.05.2019 has held that multiple compensations for singular deficiency is not justifiable. 16. In view of the above and the facts and circumstances of this case, the first appeal is partly allowed and the order dated 10.09.2018 of the State Commission is modified as under: a. the complainant is directed to deposit the balance amount without any interest, if not done, within six weeks from the date of this order. b. the builder is directed to execute the sale deed and to handover the possession of the plot in question or the alternative plot in Sector D of the same area after development to the complainant within two weeks thereafter. c. the builder shall pay delay compensation in the form of interest at the rate of 6% p.a. on the amount deposited after the expiry of three years (reasonable period) from the date of booking of the plot (i.e. 14.01.2015) till the date of handing over of the possession of the plot, within period of six weeks of this Order, failing which, the rate of interest shall be enhanced to 9% p.a. d. The builder is directed to pay Rs.10,000/- as cost of litigation. - . The appeal is disposed of. Pending application, if any, stands disposed off.
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