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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Mr. Mahesh Singh, Advocate, for the complainants and Mr. Siddharth Vasudev, Advocate, proxy counsel for Mr. TVS Raghavendra Sreyas, for the opposite party.
The complainants have filed above complaint for directing the opposite party to (i) hand over possession of apartment No.TE-1702 having an approximate super area of 211.72 sq. meters, complete in all respect; (ii) pay interest at the rate of 18% per annum on the amount deposited by the complainants from the date of default till the date of actual possession to be handed over; (iii) pay the complainants cost of Rs.5 lakhs for deficiency in service and unfair trade practice on the part of the opposite parties; (iv) pay litigation cost of Rs.1 lakh; (v) and any other/further order which is deemed fit and proper in the facts and circumstance of the case.
The complainants stated that they are mother and son; opposite party No.1 is a company incorporated under the Companies Act and opposite party No.2 is the authorised signatory of opposite party No.1 for executing and signing the builder buyer agreement. The opposite parties have advertised a project calling upon the customers that they are presenting four-side open sublimely designed luxury presides over all else. Being allured by the advertisement, the complainants have booked an apartment in the housing project known as “Presidia.” The complainants were allotted apartment No.TE-1702 having an approximate super area of 211.72 sq. meters on 17th floor, sector 62, Gurgaon, Haryana. The builder buyer agreement was executed on 03.08.2010, according to which the complainants have made entire payment of Rs.12677583/- in time. The language of the agreement was confusing totally favourable to the opposite parties and against the complainants. As per agreement, possession of the apartment was to be handed over within 36 months plus some confusing grace period but despite expiry of the above period, the opposite parties failed to hand over the possession. In clause 1.10 of the agreement it is mentioned that time period mentioned in the agreement shall not be binding upon the opposite parties in late handing over the possession. Drafting such an agreement which is one sided and advantageous to the opposite parties, amounts to unfair trade practice. Further, by not handing over possession of the apartment amounts to deficiency in service. The opposite parties issued intimation of possession, vide letter dated 20.11.2018 alongwith final demands. The complainants have complied with the said demand but the opposite parties failed to handover the possession. The complainants issued notice on 27.08.2018 to the respondents for furnishing the status of the project and reimbursement/adjustment of the interest @ 18% or 21% per annum for delay in delivery of possession.
The opposite parties filed their written reply on 12.04.2019 and contested the complaint. The opposite parties stated that the complainants booked the apartment for investment purpose so as to speculation in the real estate, therefore, they are not consumers under Section 2 (1) (d) of the Consumer Protection Act, 1986. It was further stated that opposite party No.2 was authorized representative of opposite party No.1, therefore, he was not personally liable for any business transaction done by opposite party No.1. Name of opposite party No.1 may be deleted from the array of the parties. Opposite party No.1 obtained the occupation certificate on 20.11.2018 and offered the possession to the complainants vide letter dated 20.11.2018. As per clause 10.3 of the agreement, in the event of any delay in handing over the possession, the opposite party reserved the right to refund the amount alongwith interest @ 9% p.a. and no other compensation was payable. Possession of the apartment was to be handed over within 42 months including 180 days as grace period from the date of the agreement. The delay in handing over possession occurred due to force majeure conditions. Opposite party No.1 obtained various licenses, approvals, sanctions and permits including some extensions from various authorities, which was time consuming process. Opposite party No.1 employed two agencies for early completion of the project. Sometimes there was acute shortage of labour due to commonwealth games and some social schemes, which also resulted in delay of the project. There was big slowdown in the real estate industry due to which it was very difficult for the contractors to finish the contracts in time as the labour has shifted from this industry to some other industries. There was no negligence or deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.
The complainant filed the rejoinder affidavit wherein they have reiterated the allegations made in the complaint.
I have considered the arguments of the counsel for the parties and examined the record. At the outset, I would like to mention that opposite party No.2 being authorized representative of opposite party No.1 is not personally liable for delay in delivery of possession. So far as maintainability is concerned, the interpretation of the phrase “commercial purpose” came up for consideration in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers and others, (2020) 2 SCC 265, Supreme Court has given various guidelines for deciding the commercial purposes i.e (i) manufacturing/industrial activities or business-to-business transactions between the commercial entities. (ii) the purchase of the good or service should have close and direct nexus with a profit-generating activity then it would be terms as “commercial purpose”. In Shrikant G. Mantri Vs. Punjab National Bank, (2022) 5 SCC 42, held that it is the purpose to which the goods so bought or put is material for deciding as to whether it was for commercial purpose or not. The legislative intent is to keep the commercial transactions out of the purview of the said Act. In National Insurance Company Limited Vs. Harsolia Motors, 2023 SCC OnLine SC 409, held that the goods purchased or services availed should be used in any activity directly intended to generate profit, which is main aim of commercial purpose, in order to apply exception.
In the light of aforesaid principles, the present case has to be examined. The complainants stated that they had booked the apartment for residential purpose. The opposite party has not adduced any evidence to prove that the complainants are engaged in the business of purchasing and selling flats. As such the complainants are consumers and complaint is maintainable.
Booking of the apartment, payments made by the complainants and the due date of possession are not disputed by the parties. Opposite party No.1 also admitted the delay in handing over possession of the apartment. The only question is whether the delay in delivery of possession is due to force majeure conditions. Neither any new legislation was enacted nor an existing rule, regulation or order was issued stopping/suspending or delaying construction. There was no evidence of any lock-out or strike by the labour at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the construction of the project. Opposite Party No.1 merely narrated a set of events and obstacles which are routinely faced by project developers. Agreement between the parties was executed on 03.08.2010, according to which possession was to be handed over within 42 months including six months extension i.e. latest by 03.02.2014. Opposite party No.1 has filed copies of the occupation certification as well as offer of possession (Annexure OP-2) dated 20.11.2018. After obtaining the occupation certificate, offer of possession was issued to the complainants on 20.11.2018 itself. Opposite party No.1 is liable to pay delay compensation in the form of interest @ 6% p.a. of deposit of the complainants from 03.02.2014 till 20.11.2018.
ORDER
In view of the aforesaid discussion, the complaint is disposed of directing opposite party No.1 to hand over possession of the apartment, complete in all respect within two months. Opposite party No.1 shall also pay delay compensation in the form of interest @ 6% p.a. from 03.02.2014 till 20.11.2018 within same period. On settlement of account, Opposite Party No.1 shall execute conveyance deed without any further delay. There will be no order as to costs.