1.       The Complaint is filed under Section 21 of the Consumer Protection Act, 1986. Complainants are husband and wife. Opposite Party No.1 is a Company incorporated under the Companies Act, 1956. Opposite Party No.2 is Regional Manager of Opposite Party No.1. In 2006, Opposite Party No.1 launched a project “Central Plaza at Mohali Hills”, which inter alia included shops. Complainant No.1 was an ex-serviceman and Complainant No.2, a house wife. They required a shop to set up business to earn livelihood. The Complainants booked a shop in the project of the Opposite Parties by depositing an advance of Rs.17,58,337/- being 15% of the consideration amount. The Complainants were allotted unit No.37, Floor No. BG, premises No.37, having super area of 3537 sq. ft. and carpet area 2135 sq. ft. in Sector 105, Mohali Hills, Mohali, Punjab. Total sale consideration of the shop was approximately Rs.1,79,00,000/-. Initially, one Ms. Amandeep Kaur was also a co-applicant and co-signatory to the agreement as third applicant/allottee. Subsequently, a request for deletion of the name of Ms. Amandep Kaur was made and her name was deleted. At present, Complainants No.1 & 2 are allottees for all intents and purposes.

2.       On 24.04.2008, an agreement was executed between the Complainants and Opposite Party No.1 with respect to the shop allotted to them. In the Agreement it was specifically stated that the developer had been granted approval and licence by the Director, Town & Country Planning, Punjab to develop and construct the commercial complex. The Complainants were given the impression that construction work had already started. As per Clause 22.1 of the Agreement, possession of the shop was to be delivered within 36 months from the date of the Agreement, with grace period of 90 days. In case of delay in delivery of possession, the Opposite Parties were liable to pay a sum of Rs.50/- per sq. ft. per month. In case of delay on the part of the Complainants, the Opposite Parties were entitled to charge interest @ 15% p.a. The Complainants deposited an amount of Rs.1,70,73,286/- upto 06.11.2013. Despite several visits to the office of the Opposite Parties, they failed to get possession of the shop within the stipulated time. The Opposite Parties also failed to pay compensation @ Rs.50/- per sq. ft. per month as per the agreement. Alleging deficiency in service on the part of the Opposite Parties, the Complainants filed the present Complaint seeking following reliefs: -

 “a.   The opposite parties be directed to pay damages/penalty to the tune of Rs.1,00,21,500/- (amount calculated as per clause 24.1 of the agreement from 24.04.2011 till 13.09.2015) alongwith interest @ 12% per annum for not giving the possession of shop in question to the complainants within a period of 3 years from the date of execution of the agreement.

b.       The opposite parties be kindly directed to deliver the possession of the shop in question in all respects, including all the statutory/legal requirements, basic amenities of water, sewerage and electricity etc. by providing detailed information of availability of all the approvals from the statutory authorities including pollution control bard, electricity and public health apart from providing the date of execution of conveyance deed.

c.       The Opposite Parties be directed to pay the complainants an amount of Rs.70,000/- as litigation cost alongwith an amount of Rs.10 lacs for causing harassment, undue hardship and mental agony, unfair trade practice on account of deficiency in service on the part of opposite parties.

d.       Any other relief this Hon’ble Commission may deem fit be kindly awarded in favour of the complainants and against the opposite parties.

3.       The Complaint was contested by the Opposite Parties by filing the written statement. The Opposite Parties contested that the Complainants had booked the shop for commercial purpose and, therefore, they were not Consumers under Section 2 (1) (d) of the Consumer Protection Act, 1986.

The Opposite Parties also challenged the Complaint on the ground that the Complainants had concealed material facts that they had booked 4 commercial units, including the present one. They had booked 3 other units alongwith Mrs. Amandeep Kaur and Mr. Gurbinder Aulakh who permanently reside in New Zealand. The Complainants later cancelled the 3 units and diverted/adjusted the said amount to the present unit. The Complaint was, thus, liable to be dismissed as not maintainable.  

4.       On merits, it was stated that, vide letter dated 28.08.2015, the Opposite Parties offered possession of the shop subject to balance payment of Rs.45,98,896/-. The Opposite Parties had also obtained Occupation Certificate dated 18.11.2014. The Complainants had neither paid balance amount of Rs.45,98,896/- nor took possession of the shop offered by the Opposite Parties. They instead chose to file the instant Consumer Complaint.

5.       Heard the Learned Counsel for the Parties and carefully perused the record. The Learned Counsel for the Complainants submitted that as per clause 22.1 of the Agreement dated 24.04.2008, possession of the shop was to be handed over within 36 months with a grace period of 90 days. As the Opposite Parties failed to handover the possession within the stipulated period, the Complainants are entitled for compensation. Learned Counsel submitted that the Opposite Parties be directed to deliver possession of the shop in all respects, including all the statutory/legal requirements, basic amenities of water, sewerage and electricity etc.

6.       Learned Counsel for the Opposite Parties submitted that as the shop was booked by the Complainants for commercial purpose, the Complainants were not Consumers and the Complaint filed them before this Commission was not maintainable. Learned Counsel relied on the judgment in Laxmi Engineering vs. PSG Industrial Institute (1995) 3 SCC 583 and submitted that this Commission had no jurisdiction to entertain the Complaint. He also submitted that the Complainants supressed the material fact that they had booked 4 shops in the same project of the Opposite Parties. They had obtained Occupancy Certificate dated 18.11.2014 and, vide letter dated 28.08.2015, issued offer of possession to the Complainants after making payment of balance amount of Rs.45,98,896/-. Instead of making the above payment and take possession of the shop, the Complainants chose to file the Consumer Complaint seeking undue gain from the Opposite Parties.

7.       Admitted facts of the case are that the Complainants booked a shop in the project of the Complainants by depositing an advance of Rs.17,58,337/- being 15% of the consideration amount. The total consideration of the shop was approximately Rs.1,79,00,000/-. Agreement between the Parties was executed on 24.04.2008. As per clause 22.1 of the Agreement, possession of the shop was to be delivered within 36 months from the date of the agreement with a grace period of 90 days. The Opposite Parties failed to deliver the possession within the stipulated period.

8.       On maintainability, Complainant No.1 is an ex-service man and the couple had booked the shop to earn their livelihood. The contention of the Learned Counsel for the Opposite Parties that the Complainants were not ‘Consumers’, as they had booked the flat for commercial purpose, is unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/flats in his normal course of business to earn profits, shifts to the Opposite Party, which the Opposite Party failed to discharge by filing any documentary evidence to that effect. We are therefore of the considered view that the Complainant is a ‘Consumer’ as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.

9.       Regarding delay in delivery of possession, it is admitted that Agreement was executed on 24.04.2008. As per the Agreement, possession of the shop was to be delivered within 36 months with a grace period of 90 days. The Opposite Parties admitted in the written statement that Occupancy Certificate was obtained on 18.11.2014 and possession of the shop was offered vide letter dated 28.08.2015. Delay in delivery of possession is, thus, established.  In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., Civil Appeal No. 3533-3534 of 2017, decided on 12.3.2018, Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the property allotted to him/her, and is entitled to seek compensation. The Opposite Parties have not produced evidence of any circumstances amounting to force majeure. The Opposite Party failed to prove that there was any unforeseen and unexpected event or act of God which prevented the completion of the Project within the stipulated time period. 

10.     From the aforesaid facts, we hold the Opposite Parties guilty of deficiency in service in not delivering the possession of the shop in the stipulated time. The Opposite Parties are directed to handover possession of the shop to the Complainants after receiving the balance payment. The Opposite Parties are also directed to pay 6% p.a. interest on the amount deposited by the Complainants from the due date of possession till the date of offer of possession apart from litigation cost of Rs.20,000/-. Order be complied within eight weeks.