Anoop Kumar Mendiratta, Member

Aggrieved against non-delivery of apartment booked by the complainant with the respondent, despite having paid 94% of the consideration amount, present complaint has been preferred on behalf of the complainant, seeking following reliefs:-

                   "i. Deliver to the complainants, within a time-bound period, vacant peaceful possession of the apartment/flat bearing number 'T25/15 01", Paras Tierea, Sector 137 Greater Noida Expressway, Noida (U.P.), after completing the finishing work along with authentic/certified copies of the Completion Certificate and the Occupancy Certificate; and also interest @18% per annum (on delayed delivery of possession) on the amounts paid by complainants to the OPs, which is estimated to be Rs.40,75,784/- till 31.01.2018;

                   ii. Pay to the complainants further interest 18% per annum w.e.f. the date of fling of the present complaint ill actual payment,

                   iii. Compensation to the tune of Rs.5,00,000/- (Rupees five lakhs) for the immense mental agony, harassment, loss and injury suffered by the complainants due to the deficient services and unfair trade practices of the OP's; and

                   iv. Costs to the tune of Rs.1,00,000/- (Rupees one lakh) to cover legal and miscellaneous expenses.

                   OR IN THE ALTERNATIVE

                   i. Refund to the complainants their entire principal amount of Rs.59,06,398/- with interest @ 18% per annum calculated w.e.f. the respective dates of payments, which is estimated as Rs.50,18,631/- (Rupees fifty lakh eighteen thousand six hundred thirty one) only till 31.01.2018:

                   ii. Pay to the complainants further interest @18% per annum w.e.f. the date of filing of the present complaint till actual payment;

                   iii. Pay to the complainants compensation to the tune of Rs.5,00,000/-(Rupees five lakhs) for the immense mental agony, harassment, loss and injury suffered by them; and

                   iv. Costs to the tune of Rs.1,00,000/- (Rupees one lakh) to cover legal and miscellaneous expenses.

2. In brief, as per the case of the complainants, apartment bearing No. 01 (15th Floor) in Tower No. 25 measuring 1567 sq. ft. was booked with the opposite party in project titled as 'Paras Tierea' for consideration of Rs.60,60,925/-. Amount of Rs.57,19,367/- which is over 94% of the consideration thereof along with sum of Rs.1,73,532/- towards service tax and Rs.13,499/- as interest demanded by Ops was paid by the complainants (i.e. total amount of Rs.59,06,398/- was paid).

An agreement was also executed between the parties on 25.04.2012 containing the detailed terms of the allotment. The offer of possession was issued by OP-1 vide letter dated 31.05.2016 followed by reminder dated 11.08.2016 with demand for balance payment, whereby it was also informed that interest @ 18% p.a. would be chargeable on delay in making the payment. It is further the case of complaint that letter dated 11.08.2016 with statement of account was forwarded by OP demanding a payment of Rs.3,24,188/- on being requested to provide copies of completion certificate (CC) and Occupancy Certificate (OC). Further, in response to an e-mail dated 03.10.2016 from the complainant, OPs instead of providing the OC and CC issued a letter dated 05.01.2017 reiterating the non-payment of balance amount by the complainant. The complainants to show their bona fide, issued letter dated 18.01.2017 along with photocopies of cheques for amount of Rs.2,63,311, 78,250/- and 54,336/- which was duly acknowledged by the OPs and informed that the amount due is Rs.3,19,773/-, Rs.78,250 and Rs.54,336/-. It is further the case of complainants that the flat was offered despite deficiencies and though the finishing work was yet to be completed. The flat was thereafter cancelled by OP vide letter dated 04.03.2017. On failure of OPs to deliver the flat, present complaint was preferred by the complainants.

3. In reply filed on behalf of the OPs, the maintainability of the complaint before this Commission has been challenged on the grounds of pecuniary jurisdiction, as the consideration for the flat is Rs.60,60,925/, much below the jurisdiction of Rs.1 crore at the relevant time. The flat is further stated to have been purchased by the complainants for investment and commercial purpose and, as such, the complainants did not fall within category of 'consumer' as defined under Section 2(d) of the Consumer Protection Act, 1986.

4. On merits, OP submits that complainants failed to take delivery of the flat despite reminders though the copy of occupancy certificate had been supplied to the complainants. The complaint is further stated to have been preferred by the complainants after the possession had been offered on 11.08.2016 and the cancellation was communicated vide letter dated 04.03.2017, on account of failure to make the balance payment. It is further submitted that if the complainants are willing to take the possession, they are liable to pay revival charges together with outstanding amount and holding charges in terms of the agreement. The process for cancellation is stated to have been taken up after issuing a final notice dated 05.01.2017 giving an opportunity to pay the balance amount. The occupancy certificate issued in terms of communication dated 29.04.2016 & 18.09.2017 has also been placed on record.

5. In the rejoinder filed on behalf of complainants, stand taken in the complaint was reiterated. Complainant further submitted that Occupancy Certificate had only been attached by the OPs along with their reply/written version which was never provided earlier. The said occupancy certificate is also stated to be conditional. It was emphasized that the complainants had always been ready and willing to pay the balance amount of about 6% of the purchase consideration.

6. In support of the case, complainants led evidence of Complainant No.1 by way of affidavit and relevant documents were exhibited as CW-1/1 to CW-1/12. Also, evidence by way of affidavit was filed by Naman Singhal, son of the complainants. On the other hand, opposite parties led evidence by way of affidavit of Sh.Mukesh Kumar Tripathi, Authorized Representative and relied on documents filed with the reply.

7. During the pendency of proceedings, a detailed Order dated 04.10.2023 was passed by this Commission, noticing the developments vide Order dated 07.05.2019 along with two applications moved by the complainants bearing IA No.4048/2019 and 4914/2021, which came up for consideration before the Commission on 20.07.2022.

8. The relevant excerpts of Order dated 04.10.2023 may be reproduced for reference:

                   "Heard Ld. Counsel for the Parties.

                   The case had proceeded earlier and Orders were passed by this Commission on 07/05/2019. The same is extracted herein under:-

                   "Mr. Amar Nath Gupta, learned Counsel for the Complainants stated that the Complainants had paid a sum of Rs.59,00,000/- (Rupees fifty nine lacs) towards the sale consideration of the flat in question. Some amount is still to be paid. According to the learned Counsel for the Complainants, about a sum of Rs.4.50 lacs remains to be paid, which he submits that the Complainants will deposit the same before this Commission and it may be kept in fixed deposit. However, Mr. Jasdeep Singh Dhillon, learned Counsel for the Opposite Parties states that the amount mentioned by the Complainants was due to be paid in the year 2016, which is not being admitted by the learned Counsel for the Complainants. He states that the amount was due and payable in the year 2017. Learned Counsel for the Complainants submitted that the Opposite Party be directed to hand over the peaceful and vacant possession of the flat in question alongwith Occupation Certificate and execute the sale deed in favour of the Complainants subject to the final outcome of the present Complaint.

                   Learned Counsel for the Opposite Parties, however, states that instead of depositing the said amount before this Commission, the Complainant should pay a sum of Rs.4.50 lacs (Rupees four lacs and fifty thousand) to the Opposite Party No.1, within two weeks and after receipt of the said amount, the Opposite Party No.1 shall hand over the peaceful vacant possession of Flat No. 1501, Tower No. 25 of Paras Tierea, Sector 137, Greater Noida, District Gautam Budh Nagar, within a week thereafter.

                   We, therefore, instead of directing the Complainants to deposit Rs.4.50 lacs before this Commission, direct the Complainants to pay a sum of Rs.4.50 lacs (Rupees four lacs and fifty thousand) to the Opposite Party No.1, within two weeks from today and after receipt of the said amount, the Opposite Party No. 1 shall hand over peaceful vacant possession of Flat No. 1501, Tower No. 25 of Paras Tierea, Sector 137, Greater Noida, District Gautam Budh Nagar alongwith Occupancy Certificate within a week thereafter and shall take immediate steps to get the Conveyance Deed executed in pursuant to the Tri - partite Agreement. The Complainants shall bear the amount of Stamp Duty and Registration Charges for the Conveyance Deed. The question as to what amount the Complainants are entitled to pay or the amount to be received by the Opposite Party, shall be decided at the time of final hearing.

                   Finishing work of the flat shall be done by the Opposite Party in consultation with the Complainants, within 6 weeks.

                   List on 29.08.2019."

                   After passing of the said Order two Applications have been moved by the Complainant being No.IA/14048/2019 and 1A/4914/2021. These Applications came up for consideration before the Commission on 20/07/2022, when the following Order was passed."

                   "IA/14048/2019 & A/4914/2021 (Directions, Directions)

                   Learned Counsel for the Complainants submits that both these applications be decided with final matter and matter be listed for final hearing.

                   Parties are directed to file their Written Synopsis not exceeding 3 to 4 pages along with pagination and case laws, if any, within eight weeks, with copy in advance to each other.

                   Registry will again list the matter for final hearing with due intimation to the Parties."

                   Thereafter, it appears that the Opposite Parties have filed the Written Submissions and also a Reply Affidavit to the aforesaid Applications. The stand taken in the Affidavit is that physical possession has been handed over to the Complainant in terms of the Order dated 07/05/2019, which according to the Opposite Party has been handed over on 12/08/2019.

                   Ld. Counsel for the Complainant submits that this was just a symbolic possession and no physical possession has been transmitted and hence the directions of the Commission dated 07/05/2019 have not been complied with. It is also submitted that the premises is not in a habitable condition also and hence the Application has also been moved for considering the prayer for refund of the entire amount.

                   The said Application for refund of the entire amount has been rebutted and is opposed through the Affidavit dated 29/03/2023 filed on behalf of the Opposite Parties.

                   In the wake of these developments and the pleadings on record Ld. Counsel for the Complainant prays for two weeks time to file a response to the Affidavit dated 29/03/2023. Time prayed for is granted.

                   Let the matter be listed on 10/01/2024."

9. It may be noticed at this stage itself that IA No.14048 of 2019 dated 26.08.2019 was filed by the complainants for directing the Director of OP Company to explain as to why OPs have violated various aspects of Order dated 07.05.2019 along with request for imposing penalties under Section 27 of the Consumer Protection Act read with Section 12 of Contempt of Courts Act, 1971.

Further, IA No. 4914 of 2021 dated 22.07.2021 was filed with the prayer to refund to the complainants the entire principal amount of Rs.63,56,398/- with interest @ 18% p.a. together with compensation and adequate cost.

10. Learned counsel for the complainants points out that detailed factual position and contentions raised in terms of affidavit dated 21.06.2024 are filed on record. The complainants vide affidavit filed on 21.06.2024 submitted that in terms of the Order dated 07.05.2019 passed by this Commission, an amount of Rs.4.5 lakhs was transferred to the account of OPs and they were accordingly informed vide e-mail dated 15.05.2019. However, the amount was returned back by OPs for reasons unknown. Further, a legal notice dated 17.06.2019 was served upon OPs whereupon complainants were informed by the OPs that they had closed the City Bank Account and provided information relating to new account with HDFC Bank. The amount was credited with HDFC Bank Account on 24.06.2019. Further, the premises was inspected on 10.07.2019 wherein it was revealed that the finishing work was yet to be completed and there were several deficiencies. On 03.08.2019, OP informed that the finishing work had been completed and the site was accordingly re-visited on 10.08.2019. However, some of the deficiencies were still to be rectified. Further, it was noticed that occupancy certificate dated 29.04.2016 given by the OP company is subject to the caveat that there is a pending case of Okhla Bird Sanctuary before the National Green Tribunal. The keys of the flat were further stated to have been handed over on 12.08.2019 as a symbolic possession which was obtained after observing 'possession is taken under protest'. Further, on 'No Dues Certificate' dated 12.08.2019 it was observed that the complainants reserve their rights to pursue pending court case. The opposite party in the facts and circumstances are stated to have failed to fulfill their obligations regarding handing over of possession after removal of deficiencies. Also, the occupancy certificate is stated to be conditional and no steps are taken to complete the pending work or for execution of sale deed. Learned counsel for complainants accordingly presses for refund of amount with interest.

11. On the other hand, with reference to pending IA No.4194/21 insisting refund of amount, learned counsel for the opposite party, submits that since possession had already been taken over by complainants on 12.08.2019 pursuant to the Orders passed by the Commission on 07.05.2019, no cause of action survives to seek the refund. Further, if the complainants have any grievance relating to deficiency in flat, the same is to be taken up by filing of fresh complaint. The complainant is further stated to have enjoyed the premises since taking over of possession on 12.08.2019 though the same was offered to the complainant vide letter dated 31.05.2016. Reliance is further placed upon Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna & Ors., (2021) 3 SCC 241 and Sanjay Gopinath & Ors. v. Ireo Grace Realtech (P) Ltd., CC NO. 3326 of 2016 dated 31.08.2021-MANU/CF/0196/2021. Learned counsel for opposite party further emphasizes that complainants themselves are responsible for delay in taking over the possession since the balance amount was not deposited by them as demanded by the OPs in terms of the agreement. The liability of the opposite parties, if any, towards delay compensation is further stated to be only from the assured date of possession till the date of offer of possession (i.e. 31.05.2016).

The refund of amount by the complainants at this stage is further opposed by the opposite parties on the ground that having taken the possession of the unit on 12.08.2019 in view of the Order passed by the Commission on 07.05.2019, the same cannot be reviewed.

12. We have given considered thought to the contentions raised and perused the record carefully. Learned counsel for the opposite parties has challenged the maintainability of proceedings on the ground that claim is below the pecuniary jurisdiction of Rs.1 crore of this Commission at the relevant time, since the consideration amount for the allotment of flat was Rs.60,06,095/-.

A bare perusal of the complaint filed on behalf of the complainants reflects that the relief sought by the complainants is not limited to the possession or in the alternative for refund, but also claims interest @ 18% p.a. along with compensation and litigation costs. It is well-settled that the value of the claim in terms of Consumer Protection Act, 1986 is determined not just by the amount of consideration between the parties but by the aggregate relief sought, which includes compensation, interest and other components. In view of above, we are of the considered opinion that this Commission had the requisite pecuniary jurisdiction at the relevant time to entertain the complaint. The objection is accordingly dismissed being without any merits.

13. A contention has also been raised on behalf of the opposite party that the complainants do not fall within ambit of Section 2(d) of the Consumer Protection Act, since the complainants are ordinarily resident of Qatar and the premises was booked for commercial and investment purposes.

The burden lies on the opposite party to prove that the dominant purpose behind purchasing the flat by the complainants was commercial, to reasonably infer that complainants do not fall within ambit of 'consumer' under Section 2(d) of the Consumer Protection Act, 1986. There is absolutely no evidence to infer that the flat was purchased by the complainants for commercial purposes. A bald objection raised by opposite party in absence of any evidence on record is devoid of merits.

Reliance may be placed upon Omkar Realtors & Developers Pvt. Ltd. v. Kushalraj Land Developers Pvt. Ltd. & Anr., (2025) 1 SCC 527, wherein similar objection was dismissed in absence of any evidence to prove that flat had been purchased for commercial purpose.

14. On merits, it is urged on behalf of opposite party that once the possession was offered by the opposite party to the allottee vide letter dated 31.05.2016 after the receipt of the occupancy certificate dated 29.04.2016 from the competent authority, the complainants were bound to accept the same. Further, since complainants failed to take over the possession after payment of balance dues, the opposite party was within its right to cancel allotment vide communication dated 04.03.2017. Learned counsel for opposite party has emphasized that opposite party cannot be saddled with compensation including payment of any interest for delay in handing over possession.

However, on the other hand, as per the complainants, despite having paid almost 94% of the consideration amount i.e. Rs.57,19,367/- along with service tax of Rs. 1,73,532/- and a sum of Rs.13,499/- towards interest of late payment, delay in offer of possession is apparent since opposite party failed to provide with the completion certificate and occupancy certificate which is necessary to ensure that apartment/flat is complete and ready for legal occupation. The complainants are stated to have been always willing to take over possession, subject to being provided with CC/OC by the opposite party. Even the photocopies of the cheques are stated to have been delivered.

15. The non-provision of OC/CC by the opposite party to the complainants appears to be apparent on the basis of the e-mails exchanged between the parties which have been placed on record.

Also, apparently, the occupancy certificate dated 24.09.2016 & 18.09.2017 obtained by the opposite party is conditional, as the same is subject to the final decision of the National Green Tribunal in the case of Application No. 375 of 2015, Paramveer Singh v. Union of India & Ors. and the allottees are bound by the same. In view of conditional occupation certificate, the purchaser could not have been compelled to take possession as the same was never in contemplation at the time of booking and appears to be a subsequent development. In the absence of furnishing unconditional OC, the offer of possession is vitiated. Also, there appears to be a lapse by opposite party in discharging the obligations to attend to deficiencies in flat despite order dated 07.05.2019 of this Commission. Reliance in this regard may be placed upon Debashis Sinha v. R.N.R. Enterprise, (2023) 3 SCC 195, Pioneer Urban Land & Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416 and Treaty Construction v. Ruby Tower Coop. Housing Society Ltd., (2019) 8 SCC 157.

16. It is also important to notice that after filing of complaint and during course of proceedings, the matter was taken up for handing over of possession which again stands disputed on account of repeated allegations of deficiency in flats by the complainants and it is emphasized by complainants that the Order for handing over possession has not been complied with, in letter and spirit by removal of deficiencies. We are of the considered view that the subsequent developments of handing over of possession wherein the sale deed is yet to be formally executed and both the parties have taken staunch position regarding determination of rights, this Commission needs to equitably address the issue by considering the right of the complainants to seek refund under the compelled situation. Considering the facts and circumstances of the case and shortcomings in the flat remaining unattended and in absence of sale deed being materialized, the possession taken by complainants under protest remains a paper possession. The application seeking refund bearing IA No.4914/2021 in the peculiar facts and circumstances is allowed.

17. For the foregoing reasons, opposite party is directed to refund the amount of Rs.63,56,398/- to the complainants from the date of respective deposits with interest @ 8% p.a. within six weeks from the date of this Order. In case the opposite party fails to reimburse the amount within a period of six weeks from the passing of this Order, the balance amount shall be refunded with interest @ 12% p.a. for the period of delay beyond six weeks.

The complaint is accordingly disposed of. No order as to costs. Pending applications, if any, stand disposed of. Registry is directed to provide a copy of this Order to both the parties.