JUSTICE DEEPA SHARMA, PRESIDING MEMBER

1.       The brief facts of the case as narrated by the complainant in the complaint are that he booked a Unit No.12A-012 in the project “Digital Greens”, Sector 61, Gurgaon with super area of 138.45 sq. mtrs. @ Rs.8500/- per sq. ft along with a car parking space @ Rs.4,00,000/- for total consideration of Rs.1,33,01,354/- vide allotment letter dated 22.01.2009.  Buyer’s Agreement was entered on 30.11.2009 and the sale consideration was revised to Rs.1,30,67,380/-.  A supplementary agreement dated 01.12.2009 was also executed and rate was reduced from 8500/- to Rs.7225/- per sq. ft. The complainant continued to make the payment on different dates and had so far deposited a sum of Rs.1,01,75,709/-. As per the agreement, the agreed date of possession was 01.06.2011  i.e. the possession was to be handed over within 18 months from the date of execution of the agreement.  As per clause 15 (a) (i) of the said agreement, the Force Majeure period was 120 days and the offer of possession was not made even on expiry of 18 months and the Force Majeure date and the offer of possession was made after 6 years  i.e. 29.06.2017.  It has further been submitted that complainant is an NRI and he had booked the property in January 2009 to settle down in India and look for a means of livelihood within the next 2-3 years and since opposite party had failed to hand over the possession of the property as per the said agreement, the necessity of having the property for his residence has been changed and the plan of the complainant NRI to settle down in Indian has been grossly jeopardized and he does not require the property due to the abnormal delay of 6 years in offering the possession and hence claimed refund of the said deposited amount alongwith interest @ 12% p.a.  He also claimed Rs.10,00,000/- towards mental harassment and mental agony and Rs.1,00,000/- towards legal charges.

2.       The claim is contested by the opposite party. It is contended that complainant is not a consumer since he had got the property for investment purposes with plan to sell it in future and he never had any intention to settle down.  He never had any complaint with the opposite party till the offer of possession was made on 29.06.2017.  The complaint has also been filed with undue delay as the cause of action arose from the date 01.06.2011 which was the due date of delivery.  It is also contended that as per clause 17 (a) of Buyer’s agreement, complainant is entitled to the interest @ 9% p.a. for the delayed period.  It is further contended that complainant has been chronic defaulter in payment of the instalment.  It is further contended that since offer of possession has been made, no cause of action survives in favour of the complainant and complaint is liable to be dismissed on this ground alone.

3.       Parties have led their evidences.  Parties have also furnished their written synopsises.

4.       I  have heard the arguments and perused the relevant record.  Undisputed facts are that opposite party had started a project ‘Digital Greens’ in Sector-61, Gurgaon, Haryana and unit no. 12A-012 was allotted to the complainant vide allotment letter dated 22.01.2009.  Buyer’s Agreement was executed on 30.11.2009.  Supplementary Agreement was also executed between the parties on 01.12.2009 revising the payment schedule.  As per this agreement, under clause 15 (a) (i), the possession was to be handed over within 18 months from the date of execution and subject to  Force Majeure condition of 120 days grace period which was agreed upon between the parties.   Agreed date of possession was, therefore, 01.06.2011 and adding the grace period of 120 days, it comes to 01.10.2011. Meanwhile, vide letter dated 14.04.2010, pursuant to execution of Buyer’s Agreement plus Supplementary Agreement, unit no.12A-012 was relocated to unit no.06 yars-012 in Tower-B on 6^th Floor for consideration of Rs.1,12,51,023/-.  It is also an admitted fact that offer of possession could not be made till the date of offer of possession i.e. 01.10.2011 ( adding the period of Force Majeure).  The offer of possession was made only on 29.06.2017.  The complainant has alleged that he did  not need the house by that time.  He had in his evidence alleged that he being NRI and settled in US, in 2009 was planning to settle down in India and for that he had  booked the said unit but since the possession could not be handed over by the opposite party, he changed his plan and does not need the flat any more.  The contention of the opposite party is that flat was bought for investment purposes and being an NRI, complainant is not a consumer.

5.       This Commission in Consumer Case No. 236 of 2011 titled Ram Balakrishnan Vs. Somitri Das decided on 24.05.2018 while dealing with the issue whether NRI is a consumer or not, has held as under:

“9.      Counsel for the opposite party has further contended that instant complaint is not maintainable because the complainant is an NRI and not a consumer as envisaged under section 2 (1) (d) of the Act as he intended to sell the subject apartment on profit.  The above argument of the opposite party is misconceived for the reason that perusal of the definition of ‘consumer’ as envisaged under section 2 (1) (d) of the Act would show that for the purpose of definition, Act do not make any distinction between the buyers who are Indian citizens or NRIs. Merely because the complainant is an NRI, it would not give rise to a presumption that he had booked the subject apartment with the intention to make profit by selling the same on a later date.  The opposite party has not led any evidence to substantiate the plea that the complainant had booked the flat with commercial intention to sell it at a higher rate.  Therefore, I find no force in the contention.”

6.       It is also settled proposition of law that it is upon the opposite party to lead evidences and prove its contention that property bought was for commercial purpose and he falls outside the definition of ‘consumer’.   No evidence has been led by the opposite party to prove that complainant had been dealing in the business of buying and selling of properties.  Merely because he is an NRI and bought a flat in India, no presumption can be raised that the same has been bought with the intention to sell it for profit.   This Commission in Aloke Anand Vs.  M/s Ireo Pvt. Ltd. & Ors. bearing Consumer Complaint No. 1277 of 2017 decided on 01.11.2021 relied on its earlier order in Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developers Pvt. Ltd. 1 (2016) CPJ 131 ( NC),     In Kavita Ahuja’s case, this Commission has held as under:

“11.      It is settled proposition that burden is upon the opposite party to prove that the complainant is indulging in commercial activities of sale and purchase of the flats and that he had booked the subject flat with the intention to sell it to earn profit as part of his commercial activities.  This Commission in Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developers Pvt. Ltd. 1 (2016) CPJ 131 (NC) has clearly held as under:

6. …xxx…..

“ 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).

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9.  In any case, it is not appropriate to classify such acquisition as a commercial activity merely on the basis of the number of houses purchased by a person, unless it is shown that he was engaged in the business of selling and purchasing of houses on a regular basis. xxxxx….”

                    In Aloke Anand (supra), this Commission relying on the findings in Kavita Ahuja has held as under :

“12.        It is, therefore, clear that burden is squarely upon the opposite party to prove the fact that complainant is indulging in the business of sale and purchase of the flats. There is no contention in the written version that the complainant is indulging in the business of sale / purchase of the properties.  Since the opposite party has failed to discharge this burden, we hold that complainant is consumer within the meaning of Section 2 (1) (d) of the Act.”

These findings of the Commission were confirmed by the Hon’ble Supreme Court in Civil Appeal No. 180 of 2022 titled M/s Ireo Private Limited Vs. Aloke Anand and Others decided on 21.01.2022.  Hence, the argument of learned counsel of the opposite party that NRI cannot be a consumer,  has no force. The opposite party has not led any evidence to prove that property was brought for commercial purpose.  In my opinion, his contention has no merit and same is rejected. 

7.       The next argument of the learned counsel for the opposite party is that complaint is barred by limitation.  The date of delivery was 01.06.2011 and since the complaint has been filed in 2018, after expiry of 7 years, it is barred by limitation.  It is settled proposition of law that in such matters, the cause of action is continuing one and it continues till the offer of possession has been made.  The offer of possession was made on 29.06.2017 and complaint has  been filed within the expiry of period of limitation from that date.  Therefore, it cannot be said that complaint is barred by limitation.

8.       The next argument of learned counsel for the opposite party is that since complaint has been filed after the offer of possession was made, complaint is liable to be dismissed.  The Hon’ble Supreme Court in Bangalore Development Authority Vs. Syndicate Bank (2007) 6 SCC 711 has held that if the possession is  not delivered within specified time, allottee is entitled for refund with reasonable interest from the date of payment till refund. 

9.       Hon’ble Supreme Court in the recent order in Experion Developers Pvt. Ltd. Vs.  Sushma Ashok Shiroor  (2022) SCC Online SC 416  decided on 07.04.2022 has dealt with the issue as to whether a complaint is liable to be dismissed since possession can be handed over and the Hon’ble Supreme Court has rejected the contention of the opposite party that complaint is liable to be dismissed on the ground that offer of possession has been made after the complaint was filed and ordered the refund of the deposited amount alongwith interest from the date of each deposit.

10.     In this case there is delay of about 6 years in offering of possession.  In other matter, the Hon’ble Supreme Court in Civil Appeal No. 12238 of 2018 titled Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan with Civil Appeal No. 1677 of 2019 titled Pioneer Urban Land & Infrastructure Ltd. Vs. Geetu Gidwani Verma & Anr. decided on 02.04.2019 has held that flat purchasers cannot be compelled to take possession at belated stage.           I hold that in the facts and circumstances of this case, complainant is not bound to take the possession at belated stage.

11.     As per clause 17 (a) of the agreement dated 30.11.2009, the complainant is entitled for compensation in case of failure of the opposite party to hand over the possession within the scheduled period.  The relevant clause reads as under:

“17.    Compensation

1. In case the Company is  not able to  hand over the possession to the Allottee (s) in terms of the timelines as stated in clause 15 (a) (i) ( provided however contingencies stated in clause 15 (b) have not occurred),  in such an event the Allottee (s) shall be entitled   to   an   interest   calculated at  9%   p.a. ( simple interest) on the amount (s) paid by the Allottee (s) for such period of delay.”

12.     Since there is a delay of about 6 years in offering possession, the complainant is entitled for refund of money at the agreed rate of simple interest @ 9% per annum. 

13.     In view of the above, while allowing the present complaint, I issue the following directions:

1. The opposite party shall refund the entire deposited amount of Rs.1,01,75,709 to the complainant alongwith interest  9% p.a. from the date of respective deposits till date of actual payment.
2. The opposite party shall also pay  Rs.50,000/- to the complainant towards cost of litigation.
3. The entire payment shall be made within a period of four weeks from the date of this order failing which the opposite party shall be liable to pay interest @ 12% p.a. from the date of respective deposits.

14.     With these directions, the Consumer Complaint stands disposed of.