For the Appellants Mr Nitin Garg, Advocate For the Respondent Mr Biswajit Kr Patra, Mr Robin and Mr Vedant Kumar Mund, Advocates ORDER PER SUBHASH CHANDRA
1. The short issue in this appeal under section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’) is whether the appellant continues to be a ‘consumer’ under the Act in view of having taken possession of the flat in question. The State Commission by way of impugned order in CC no.2054 of 2017 dated 23.02.2018 has held, based on this Commission’s judgment in Smita Roy vs Excel Construction II (2012) CPJ 204 (NC) and Harpal Arya vs Housing Board Haryana II (2016) CPJ 36 (NC) that “one does not remain consumer after taking possession”.
2. Briefly put, the facts of this case are that the appellant purchased Flat no. 67, Second Floor, Omaxe North Avenue II, Bahadurgarh being constructed by the respondent from one Lalit Kumar as per the endorsement dated 19.03.2013. The appellant has stepped into the shoes of the original allottee on 19.03.2013. As per the Apartment Buyer’s Agreement (in short, ‘the ABA’) dated 14.03.2013 with the original buyer, possession was promised under clause 33 (a) within 18 months from the signing of the ABA with six months grace. Possession was offered in May 2016 as against the due date of March 2015. The appellant approached the State Commission seeking compensation for delay in possession and other compensations for rectification of defects in construction. The State Commission, vide impugned order, dismissed the complaint at admission stage on the grounds that the complainant was not a ‘consumer’ having taken over possession and therefore, the complaint was not maintainable under the Act. 3. We have heard the learned counsel for both the parties and perused the records. 4. Counsel for the appellant relied upon this Commission’s judgment in Anita vs Omaxe Ltd., in FA no.2380 of 2017 dated 06.04.2022 which pertains to the same project and wherein the State Commission had held similarly that the complaint was not maintainable since the complainant had taken possession of the flat. Counsel for the respondent argued that liquidated damages of Rs.5/- per sq ft per month for the super area had been paid by way of delay compensation amounting to Rs.1,20,540/-. It was contended that the occupancy certificate had been obtained on 27.07.016 and possession was offered on 18.04.2016 and that the appellant had taken over possession in July 2016. It was submitted that the appellant had been delaying the registration of the conveyance deed despite letters dated 23.08.2016 and September 2016. The complaint before the State Commission had been filed after more than 1 ½ years of taking over the possession and after receiving the delay compensation. Reliance was placed on the judgment of (i) Wg Cdr Arifur Rahman Khan vs DLF Southern Homes Pvt., 2020 SCC Online SC 667; (ii) HUDA vs Raje Ram (2008) 17 SCC 407; and (iii) IV (2019) SLT 675 – DLF Home Panchkula Pvt. Ltd., vs D S Dhanda. 5. In Wg Cdr Arifur Rahman Khan (supra) it had been held that: “we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.” 6. In view of the law laid down by the Hon’ble Supreme Court, it is evident that the complaint was maintainable and that the State Commission has erred in dismissing same at the admission stage. Accordingly, the appeal is allowed and the order of the State Commission in Complaint no.2054 of 2017 dated 23.02.2018 is set aside and the First Appeal is remanded back to the State Commission with the directions to admit the complaint and decide the same expeditiously on merits, preferably within a period of six months in accordance with law, after giving due opportunities of hearing to the parties. There shall be no order as to cost. 7. Parties are directed to appear before the State Commission, Delhi on 1st May 2024. | 
