Bookmark
PDF
Share
CaseIQ

Sanjeev Dhir v. Unitech Ltd.

State Consumer Disputes Redressal Commission

Aug 1, 2016

Judgment

Subsequent
References

CaseIQ

Smart Summary (Beta)

Opinion Summary: State Consumer Disputes Redressal Commission, U.T., Chandigarh — Complaint No. 177 of 2016

Factual and Procedural Background

The complainant, Sanjeev Dhir, booked and paid for a residential apartment in the "Uniworld City" project launched by Unitech Limited. A buyers' agreement dated 10.07.2012 allotted apartment No. 0092 (3BHK), measuring 1,796 sq. ft., for a total sale consideration of Rs. 53,38,370/-. The complainant paid Rs. 48,03,140/- (including earlier booking amount) and financed payments through a bank loan (EMI approx. Rs. 30,000/-). Under Article 4.a.(i) of the Agreement the builder was obliged to hand over possession within 24 months (on or before 09.07.2014). Possession was not delivered by the stipulated date; the complainant alleges construction stopped and unpaid dues remained with the builder. The complainant sent a legal notice dated 04.02.2016 seeking refund with interest; having received no relief, he filed the consumer complaint on 03.05.2016 seeking refund of amounts deposited with interest, compensation of Rs. 3,00,000/- and litigation costs of Rs. 33,000/-. The opposite party filed written objections raising preliminary pleas (territorial and pecuniary jurisdiction, maintainability, claimant being an investor not a consumer, force majeure, contractual remedies including stipulated penalty and forfeiture). Both parties filed affidavits and documents and were heard; the Commission issued the decision on 01.08.2016.

Legal Issues Presented

Whether the State Consumer Disputes Redressal Commission, U.T., Chandigarh has territorial jurisdiction to entertain the complaint.
Whether the Commission has pecuniary jurisdiction to decide the complaint.
Whether the complainant qualifies as a "consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986 or is an investor/speculator excluded from that definition.
Whether the dispute is maintainable before the Consumer Fora (i.e., whether housing construction is a "service"), or whether only a Civil Court can adjudicate contractual disputes between the parties.
Whether time was or was not the essence of the contract and whether the builder can invoke force majeure or Article 8.b. to escape liability for delay.
Whether the complainant is entitled to refund of amounts deposited, along with interest, compensation and litigation costs, or whether the remedy under Article 4.c. (penalty of Rs.5/- per sq.ft. per month) and forfeiture clauses of the Agreement exclusively govern relief.
Whether the complaint was premature.

Arguments of the Parties

Complainant's Arguments

Booked and paid for a residential unit (agreement dated 10.07.2012) and paid Rs.48,03,140/- towards the purchase price.
Possession, promised within 24 months (by 09.07.2014), was not delivered by the builder; construction halted and basic amenities were not provided.
Sought refund with interest, compensation for mental agony and harassment, and litigation expenses after issuing a legal notice that failed to produce results.
Asserted that he purchased the unit for residential purposes (not as an investor/speculator) and thus falls within the statutory definition of consumer.

Opposite Party's Arguments (Unitech Limited)

Raised a territorial jurisdiction objection: unit situated in Mohali, agreement executed in New Delhi, payments/demand raised from Gurgaon/New Delhi; Chandigarh role only as a facilitator.
Challenged the pecuniary jurisdiction of the Commission.
Asserted that time was not the essence of the contract and the delivery period was tentative; complaint premature.
Contended that the complainant is an investor/speculator (not a consumer) as the unit was purchased for future gain/resale.
Argued the dispute was contractual and should be decided by a Civil Court rather than consumer fora.
On merits admitted inability to deliver possession by the stipulated date and invoked global recession/cash crunch and objections by Punjab State Power Corporation Limited (PSPCL) (electricity not available) as reasons for delay—i.e., force majeure-type grounds and operational obstacles; asserted that work was underway and a partial completion certificate had been applied for.
Maintained that contractual remedies apply, including Article 4.c (penalty at Rs.5/- per sq. ft. per month) and that forfeiture clause might apply on refund (i.e., forfeiture of earnest money or deduction as per agreement).
Offered to pay the contractual penalty under Article 4.c. for the period of delay.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Punjab Vs. Nohar Chand, 1984 SCR (3) 839	The forum/court in whose jurisdiction products/goods are marketed will have territorial jurisdiction to entertain and decide a complaint.	Applied to hold that because the developer had a marketing/branch office at Chandigarh and received payments there, a part of the cause of action arose in Chandigarh and the Commission has territorial jurisdiction.
Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd., II (2003) CPJ 81 (NC)	Interest claimed (rate and period) is within the discretion of consumer fora and is "imaginary" at the filing stage; therefore interest need not be included to determine pecuniary jurisdiction.	Relied upon to exclude interest claimed by the complainant when determining the pecuniary jurisdiction of the Commission.
Denis Exports Pvt. Ltd. Vs. United India Insurance Co. Ltd., Consumer Case No. 196 of 2016 (decided 08.03.2016)	Reiterates that the interest component being "imaginary" should not be added to reliefs for determining pecuniary jurisdiction.	Applied alongside Shahbad Cooperative to conclude the Commission had pecuniary jurisdiction (aggregate principal relief excluding interest fell between Rs.20 lakhs and Rs.1 crore).
Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31	Buyer(s) of residential unit(s) are to be treated as consumers unless it is proved that booking was for commercial purposes.	Applied to reject the opposite party's bald assertion that the complainant was a speculator; the Commission held complainant purchased for residential purposes and is a consumer under Section 2(1)(d).
DLF Universal Limited Vs. Nirmala Devi Gupta, 2016 (2) CPJ 316	Reiterates the view that residential buyers are consumers unless proven otherwise.	Used as supporting authority to find the complainant was a consumer.
Narne Construction P. Ltd. Vs. Union of India & Ors., II (2012) CPJ 4 (SC)	When a person enters an agreement for allotment of a flat/site, the transaction is covered by "service" under Section 2(1)(o); housing construction constitutes a service.	Applied to hold the dispute involves a consumer dispute and is maintainable before the consumer fora because housing construction is a service.
Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors., AIR 2014 S.C. 1766	Affirms the principle that housing/construction activity can fall within the ambit of "service".	Used to support the conclusion that the complaint is maintainable as a consumer dispute.
Swaran Talwar & 2 others v. M/s Unitech Limited (and connected complaints), National Commission, 2015 (4) CPR 34	Rejection of pleas that economic recession/market slowdown or agitation suffices as force majeure or justifies delay in construction; "slow down" must relate to labour action when used with "lock-out" and "strike".	Applied to reject the opposite party's plea of global recession/market meltdown as a valid force majeure ground to excuse delay in delivering possession.
Rajeev Nohwar & Anr. v/s Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769	Promoter must stipulate a specific date for delivery of possession in the agreement; merely expressing an endeavour is insufficient.	Invoked to hold that non-specification of an exact date is an unfair trade practice and to reject the builder's contention that time was not the essence because the agreement used "proposed" or "tentative".
Union of India v. Tata Chemicals Ltd., (2014) 6 SCC 335	When money received by a party is ordered to be refunded, the right to interest follows as a matter of course.	Applied to support the award of interest on the refund to the complainant.

Court's Reasoning and Analysis

The Commission proceeded in a stepwise fashion to address the preliminary and substantive contentions, applying statutory provisions and the precedents cited above.

Territorial jurisdiction: The Commission analyzed the buyers' agreement and contemporaneous documents and found that the developer had a marketing/branch office at SCO 189-90-91, Sector 17-C, Chandigarh and that the Chandigarh office was responsible for development/marketing, correspondence with authorities and issuance of customer ledger (Annexure C-25). The opposite party itself admitted that payments were received by the Chandigarh office. Relying on State of Punjab v. Nohar Chand, the Commission held that because marketing activities occurred in Chandigarh and part of the cause of action arose there, the Commission has territorial jurisdiction. The territorial objection was rejected.
Pecuniary jurisdiction: The complaint sought refund of Rs.48,03,140/- plus interest, compensation of Rs.3,00,000/- and litigation costs of Rs.33,000/-; excluding interest the aggregate relief falls between Rs.20 lakhs and Rs.1 crore. The Commission followed precedents (Shahbad Cooperative; Denis Exports) holding that speculative interest claims are not to be included when determining pecuniary jurisdiction. On that basis the Commission held it has pecuniary jurisdiction and rejected the opposite party's plea.
Consumer status and maintainability: The Commission considered the opposite party's contention that the complainant was an investor/speculator. There was no evidence on record showing the complainant was a property dealer; rather the complaint and rejoinder averred the purchase was for residential use. Relying on Kavita Ahuja and DLF Universal decisions, the Commission held the complainant is a consumer under Section 2(1)(d). Further, the Commission analyzed Section 2(1)(o) (definition of "service") and authoritative decisions (Narne Construction; Haryana Agricultural Marketing Board) concluding that housing construction constitutes a service and that the dispute is therefore maintainable before consumer fora; Section 3 of the Act provides an alternative remedy even if a civil suit were available. The objection that only a Civil Court could decide the dispute was rejected.
Force majeure / time being essence: The opposite party admitted inability to deliver possession by the stipulated date and attributed delay to global recession and PSPCL objections (no electricity). The Commission examined factual record and found no cogent material to establish a legally cognizable force majeure (no new law/regulation preventing work, no strikes/lock-outs, no act of God or civil commotion). The Commission observed that economic downturn/market slowdown does not constitute force majeure; it relied on the reasoning in Swaran Talwar (and related discussion) to reject the builder's plea under Article 8.b. Consequently, the Commission held that Article 4.a.(i) — which provided for delivery within 24 months subject to bona fide force majeure — made time the essence of the contract and the opposite party could not escape liability by invoking the "proposed/tentative" language. The Court also cited Rajeev Nohwar to reject the contention that the absence of an exact date rendered time non-essential; non-specific delivery timelines were characterized as unfair trade practice by reference to precedent.
Entitlement to refund, interest, compensation and costs: Given the opposite party's admitted failure to deliver possession and lack of proof for force majeure or other lawful excuse, the Commission held that the builder had no right to retain the amounts paid by the complainant. The Commission reasoned that the complainant cannot be forced to wait indefinitely. The court also found that permitting the builder to rely solely on the contractual penalty in Article 4.c. (Rs.5/- per sq.ft. per month) would unjustly enrich the builder given the large sums retained; accordingly Article 4.c. could not be the exclusive remedy in the circumstances. The Commission accepted the principle in Union of India v. Tata Chemicals Ltd. that a refund order carries interest as a matter of course. Considering the contractually charged interest rate of 18% (compounded quarterly) for delayed payments, the Commission awarded interest on the refund at 15% compounded quarterly (less than the contractual penal rate) from the respective dates of deposit until realization.
Prematurity and forfeiture: The Commission found the complaint was not premature because it was filed after the promised delivery date (09.07.2014) and after the complainant had waited a reasonable period. The plea of forfeiture by the opposite party (i.e., deduction of earnest money because the allottee rescinded) was rejected because the opposite party did not contend that it had been ready to deliver possession and that the complainant had rescinded for personal reasons; rather the builder had defaulted in completing the project.
Relief structuring and compliance terms: The Commission structured reliefs (refund, interest, compensation, costs) and set specific compliance timelines and penal consequences for non-compliance (see Holding section below). It also provided that if the complainant had a bank loan, the lending institution would have first charge on amounts payable to the extent due.

Holding and Implications

Core Ruling: The complaint is partly accepted (the Commission granted substantive relief in part and costs to the complainant).

Specific Orders and Direct Consequences for the Parties

The opposite party (Unitech Limited) is directed to refund Rs. 48,03,140/- to the complainant.
Interest on the refunded amount is awarded at 15% per annum, compounded quarterly, from the respective dates of deposit until realization.
Compensation of Rs. 3,00,000/- is awarded for mental agony, physical harassment and escalation in prices.
Costs of litigation of Rs. 33,000/- are awarded to the complainant (as prayed).
All awarded amounts must be paid within two months from receipt of certified copy of the order. If the refund amount (Rs.48,03,140/-) is not paid within that period, it shall carry penal interest at 18% compounded quarterly (instead of 15%) from the respective dates of deposit; amounts awarded as compensation and costs shall carry 15% compounded quarterly from the date of filing of the complaint until realization.
If the complainant has availed a bank/financial institution loan for payments, that institution has the first charge on amounts payable to the extent the loan is due.
Certified copies of the order were to be sent to the parties free of charge and the file consigned to records after completion.

Broader Legal Implications (as stated or implied in the Opinion)

The Commission applied and reaffirmed established principles: marketing/receipt of payments in a forum's territory gives cause-of-action elements for territorial jurisdiction; interest claims are not to be included when determining pecuniary jurisdiction; buyers of residential units are consumers unless proved to be investors; housing construction constitutes a "service" under Section 2(1)(o); economic recession/market slowdown does not amount to force majeure within these facts; promoters cannot evade liability by using tentative language about delivery dates. The decision enforces consumer fora jurisdiction and remedies where promoters fail to deliver possession by the contractual timeline and lack credible force majeure defenses.

Direct effect: The decision orders refund with interest, compensation and costs in favour of the complainant and imposes penal interest upon non-compliance. The opinion applies existing precedents and does not announce a novel legal principle beyond their application to the facts of the case.

Show all summary ...

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 177 of 2016 Date of Institution : 03.05.2016 Date of Decision : 01.08.2016 Sanjeev Dhir son of Krishan Gopal aged 48 years, resident of House No.52, Sector 20-D, Subhash Nagar, Mandi Gobindgarh, District Fatehgarh Sahib, Punjab. Complainant V e r s u s Unitech Limited, through its Chairman/Managing Director, SCO No.189-191, Sector 17-C, Chandigarh. .... Opposite party Complaint under Section 17 of the Consumer Protection Act, 1986 BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER. MRS. PADMA PANDEY, MEMBER. Sh.N.S. Jagdeva Advocate for the complainant.Argued by:- Mrs.Vertika H.Singh, Advocate for the opposite party. PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT The facts in brief are that the complainant approached the opposite party, in the year 2011, in order to purchase a house/flat, for his residential purpose, in a project, launched by it, under the name and style of Uniworld City, Sector 97, Mohali, Punjab. Flat was booked by him, with the opposite party on making payment of Rs.5,05,141/- towards booking amount. Vide Agreement dated 10.07.2012, the complainant was allotted apartment no.0092 (3BHK), Floor-02, measuring 1796 square feet, Block D, (in short the unit) in the said project, for a total sale consideration of Rs.53,38,370/-, inclusive of External Development Charges (EDC), Preferential Location Charges (PLC) etc. The complainant opted for construction linked payment plan. As per Article 4.a.(i) of the Agreement, the opposite party was liable to deliver possession of the constructed unit, to the complainant, within a period of 24 months, from the date of execution of the same (Agreement) i.e. on or before 09.07.2014. It was further stated by the complainant that as per agreed terms and conditions between the parties, in case of delay in handing over possession of the unit, penalty @Rs.5/- per square feet, per month of the saleable area, for the period of delay was payable by the opposite party, to him. To make payment towards price of the said unit, the complainant availed loan from the Bank, against which, he has been paying Equated Monthly Installment (EMI) @Rs.30,000/- . As per record, from time to time, against the total sale consideration of Rs.53,38,370/-, the complainant paid an amount of Rs.48,03,140/-, to the opposite party. However, possession of the unit was not offered to the complainant by the stipulated date. After making payment of substantial amount, the complainant contacted the opposite party, number of times, to know the stage of development and construction work at the site but no positive response was given. Construction at the spot was stopped by the opposite party. Legal notice dated 04.02.2016 sent by the complainant to the opposite party, seeking refund of the deposited amount alongwith interest also failed to get any result. It was stated that the opposite party is not in a position to deliver possession of the unit(s) in the said project, even as on today. By stating as above, prayer has been made to issue directions to the opposite party to refund the amount deposited, alongwith interest, compensation and litigation expenses. Upon notice, reply was filed by the opposite party, wherein numerous preliminary objections were taken stating that since the unit, in dispute, is situated in Mohali; Buyers Agreement was executed at New Delhi; and even the demand for payment was raised from Gurgaon Office; payments were also made through bank in an account maintained by the opposite party at New Delhi; this Commission lacks territorial jurisdiction. It was averred that the demand draft(s)/cheque(s) were received by the opposite party from the complainant, at Chandigarh, only as a facilitator. Pecuniary Jurisdiction of this Commission was also disputed. It was stated that time was not the essence of contract, as the period mentioned in the Agreement for delivery of possession was only tentative. It is averred that the complaint is premature. It is asserted that the unit, in question, was purchased for future gain, as such, the complainant being investor, would not fall within definition of a consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. On merits, it is admitted that the complainant had purchased a residential unit, in question, from the opposite party. Fact qua price of the unit, as mentioned in the complaint was also not disputed. Payment made by the complainant towards price of the unit, as mentioned in the complaint was admitted. It is stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was also not disputed that as per Article 4.a.(i) of the Agreement, the opposite party was to hand over possession of the fully constructed unit, to the complainant within a period of 24 months, from the date of execution of the same (Agreement), subject to force majeure conditions. It is clarified that the opposite party could not complete the construction/development work and hand over possession of the unit to the complainant, by the stipulated date, as there was global meltdown/recession of the economy worldwide, resulting into cash crunch throughout and also due to some objection raised by the Punjab State Power Corporation Limited (PSPCL), a number of times, as such, electricity could not be made available at the site, by the opposite party, due to which, rest of the construction/development work and providing of the basic amenities was delayed. It is stated that recently vide letter dated 16.05.2016, it was intimated by the PSPCL to get the proposed new route, to be vetted by the GMADA. Vide letter dated 18.05.2016, No Objection Certificate in that regard, was provided to the PSPCL. It is stated that development work at the site, is being carried out, in full swing and the opposite party is making sincere efforts to hand over possession of the constructed unit, to the complainant. It is averred that for any delays, stipulated penalty has been provided in the Agreement, which safeguarded rights of the complainant. It was also stated that the opposite party vide letter dated 03.02.2016, has applied to the Competent Authority, to issue partial completion certificate, in respect of the project, in question. It was averred that if still the complainant is interested in seeking refund of the amount deposited, his case will be governed strictly, in accordance with the terms and conditions of the Agreement. In other words, it is said that forfeiture Article shall be attracted and the complainant will lose considerable amount, in case, refund of the deposited amount is ordered by this Commission. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed. In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and repudiated those, contained in the written version of the opposite party. The parties led evidence in support of their case, by way of filing their respective affidavits, alongwith which, number of documents were attached. On completion of the proceedings, arguments of the parties were heard, in detail. We would first like to deal with the objection raised by the opposite party that this Commission has got no territorial Jurisdiction, to entertain and decide the complaint. According to Section 17 of the Act, a consumer complaint could be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. It is apparent on record that the Branch Office of the opposite party is situated at Chandigarh. In the Buyers Agreement dated 10.07.2012, description of first party to the Agreement is given as under:- , a Public Limited Company duly incorporated under theUNITECH LIMITED Companies Act 1956, having its Marketing Office at SCOUnitech Ltd., 189-90-91, Sector 17-C, Chandigarh and its Registered Office at 6, Community Centre, Saket, New Delhi 110017 (hereinafter referred to as the whichDevelopers expression shall, unless it be repugnant to the context or meaning thereof, be deemed to include its executors, administrators, successors and assigns) acting through its authorized signatory(ies). It is clearly mentioned that the Company has its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh. Registered Office is situated at 6, Community Centre, Saket, New Delhi. Be that as it may, as per documents placed on record by the opposite party, alongwith written statement, it becomes apparent that Marketing Office at Chandigarh/opposite party was responsible for development and marketing of the project, in question. Entire correspondence with the Authorities qua development of the project and getting necessary permissions were being taken up by the Officers of the opposite party, posted at Chandigarh. Above fact makes it clear that the Branch Office at Chandigarh was substantially taking up the activities qua the project, in question. Copy of customer ledger account Annexure C-25 in respect of the unit, in question, was also issued by the opposite party at Chandigarh. In para no.1 of the preliminary submission, it is also mentioned that Marketing Office of the Company is situated at Chandigarh. Besides all above, it has been candidly admitted by the opposite party, in para no.24 of its reply on merits, that that all the payments were received from the complainant by Chandigarh Office of the Company. The Honble Supreme Court of India in State of Punjab Vs. Nohar Chand, 1984 SCR (3) 839 held that the Court(s), in whose Jurisdiction, products/goods are marketed, will have the territorial Jurisdiction to entertain and decide a complaint. The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. In view of fact of Marketing Office of the opposite party at Chandigarh and also as per the documents, referred to above, a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. Another objection raised by Counsel for the opposite party, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainant has sought refund of an amount of Rs.48,03,140/-, paid by him, towards price of the unit, in question, alongwith interest @18% p.a. from the respective dates of deposits, till realization; compensation to the tune of Rs.3 lacs, for mental agony & physical harassment, deficiency in providing service and adopting unfair trade practice; and cost of litigation, to the tune of Rs.33,000/-, aggregate value whereof [excluding the interest claimed] fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. As far as the interest claimed by the complainant, on the deposited amount and litigation expenses is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by of the National Commission, in a case titled as three Member Bench Shahbad Cooperative , wherein it wasSugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC) clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of De nis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case it was clearly held by the National Commission thatNo. 196 of 2016, decided on 08 March 2016, interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the submission of Counsel for the opposite party, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected. To defeat claim of the complainant, another objection was raised by Counsel for the opposite party, that the complainant is a speculator, as he has purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, he would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. On the other hand, the complainant, in paragraph no.2 of his complaint supported by his affidavit and also in the rejoinder, has clearly averred that he had purchased the said unit, for his residential purpose. In the absence of any cogent evidence, in support of the objection raised by the opposite party, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. , by the NationalShipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31 Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in The principle of law, laidDLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316 . down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. The complainant, thus, falls within the definition of consumer, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite party, in its written reply, therefore, being devoid of merit, is rejected. Another objection was raised by Counsel for the opposite party that the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainant hired the services of the opposite party, for purchasing the unit, in the manner, referred to above. According to Article 4.a.(i) of the Agreement, the opposite party was liable to deliver physical possession of the constructed unit, within a period of 24 months, from the date of execution of the same (Agreement) i.e. latest by 09.07.2014, alongwith all basic amenities as mentioned in Article 2.a.(iii) [at page 35 of the file) of the Agreement. Section 2 (1) (o) of the Act, defines service as under:- service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs. Union Of it was held that when a person applies for theIndia and Ors. Etc., II (2012) CPJ 4 (SC), allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression service of any description. Housing construction or building activity carried on by a private or statutory body constitutes service within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar . Under these circumstances, the complaint involves theDayal Goyal & Ors. (AIR 2014 S.C. 1766) consumer dispute, and the same is maintainable. Not only this, Section 3 of the 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by him, as he falls within the definition of a consumer. In this view of the matter, the objection of the opposite party, in this regard, being devoid of merit, must fail, and the same stands rejected. Admittedly, possession of the unit, was not delivered to the complainant, by 09.07.2014 or even till date. Even, in the written version, the opposite party, frankly admitted that possession of the unit, in question, could not be offered to the complainant, by the stipulated date, as it had failed to complete the development work, on account of extreme financial hardship, due to recession in the market/global meltdown, and also on account of non-provision of electricity in the said project, by the Punjab State Power Corporation Limited (PSPCL). Even partial completion certificate has not been obtained by the opposite party, till date, what to speak of obtaining final completion certificate, which is mandatory, before delivery of possession of the unit. Admission made by the opposite party, itself makes it clear that it has not obtained necessary approvals/sanctions from the PSPCL, as a result whereof, it was not provided with electricity, for the project in question. Still, the opposite party is working on obtaining permissions, from the PSPCL/GMADA. Secondly, when the opposite party, had already received more than 90% of the sale consideration, towards the unit(s), from the allottee(s), then it does not lie in its mouth, that it faced extreme financial hardship, due to recession in the market, as far as the project, in question, is concerned. It is not that the opposite party was, in the first instance, required to develop the project, by arranging funds out of its own sources, and, thereafter, the units were to be sold to the allottees, on future payment basis. Had this been the case of the opposite party, only in those circumstances, the plea with regard to facing extreme financial hardship would have been considered to be correct, by this Commission. Even otherwise, the said difficulty/ground i.e. recession in the market/global meltdown would not fall under the definition of force majeure circumstances, for not completing the construction and development work at the site. A change in economic or market circumstances affecting the profitability of a contract or the circumstance, is not regarded as a force majeure condition. Neither any new legislation was enacted nor an existing rule, regulation or order was amended, stopping suspending or delaying the construction/development work of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. There is no allegation of any lock-out or strike by the labour, at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it, 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 completion of construction/development work in the project, within the time stipulated in the Agreement. A similar question fell for determination before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in a case titled as Swaran Talwar & 2 others v. M/s Unitech Limited . The National Commission, in that case,(along three connected complaints), 2015 (4) CPR 34 while rejecting the plea of the builder, held as under:- Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant. Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainant. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it 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 completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression slow down would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word slow down having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.. The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. The opposite party, therefore, cannot take shelter under Article 8.b. of the Agreement, for extension of period, for delivery of possession of the unit. By making a misleading statement, that possession of the unit, in question, would be delivered within a period of 24 months, from the date of execution of the Agreement but on the other hand, by not abiding by the commitments made, the opposite party was not only deficient, in rendering service, but also indulged into unfair trade practice. Another objection raised by Counsel for the opposite party that time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Article 4.a(i) of the Agreement that possession of the unit was proposed to be delivered by the opposite party, within a period of 24 months, subject to force majeure circumstances. At the same time, force majeure conditions claimed by the opposite party has been negated by this Commission, while giving detailed findings, as per law. Thus, under these circumstances, as per Article 4.a.(i) of the Agreement, the opposite party was bound to deliver possession of the unit, within a maximum period of 24 months, from the date of execution of the same i.e. 09.07.2014. The time was, thus, unequivocally made the essence of contract. Even otherwise, the opposite party cannot evade its liability, merely by saying that since the word proposed or tentative was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyers Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof. It was so said by the Hon'ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) . Relevant portion of the said case reads thus:-CPR 769 Merely making possession by a particular date will also notendeavour to deliver meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer. In view of above, the plea of Counsel for the opposite party in this regard also stands rejected. The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.48,03,140/-, deposited by him. It is an admitted fact that the opposite party is unable to deliver possession of the unit, in question, on account of pending development works; construction of the unit; want of basic amenities etc. as admitted by it, and firm date of delivery of possession of the unit, could not be given to him (complainant). Still, the opposite party is saying that it is making efforts to complete the construction and deliver possession of the unit to the complainant. No firm date has been given in this regard. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. As stated above, the opposite party failed to prove, by placing on record, any cogent and convincing material, that it actually encountered any force majeure circumstances, as a result whereof, its stand has been negated by this Commission. The opposite party, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the opposite party is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.48,03,140/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the opposite party, for its own benefit. There is no dispute that for making delayed payments, the opposite party was charging heavy rate of interest (compounded quarterly @18%) as per Article 2.c. of the Agreement, for the period of delay in making payment of instalments. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon'ble Supreme Court of India, in UOI vs. Tata , (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6Chemicals Ltd (Supreme Court) In view of above, the complainant is certainly entitled to get refund of theSCC 335). amount deposited by him, to the tune of Rs.48,03,140/-, alongwith interest @15% compounded quarterly, from the respective dates of deposits (less than the rate of interest charged by the opposite party, in case of delayed payment i.e. 18% compounded quarterly, as per Article 2.c. of the Agreement), till realization. The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, is premature or not. It may be stated here, that possession of the unit, was required to be delivered, in favour of the complainant by 09.07.2014. Admittedly, possession of the unit, in question, was not even offered to the complainant by the stipulated date, or even by the time, the complaint was filed, for want of construction and basic amenities. Under these circumstances, the complainant was at liberty to file the complaint after 09.07.2014 i.e. the promised date, when after waiting for sufficient time, he found that the opposite party is unable to deliver possession of the unit, in question. Had the complainant filed this complaint before 09.07.2014 (promised date), only in those circumstances, it would have been said that the complaint filed is premature. In view of above, an objection taken by the opposite party, in this regard, is rejected out-rightly. As far as the plea taken by the opposite party regarding forfeiture of earnest money is concerned, it may be stated here that the same also stands rejected, because it is not the case of the opposite party, that it was ready with possession of the fully constructed unit, to be delivered to the complainant, by the stipulated date i.e. 09.07.2014, but the complainant wanted to rescind the contract, on account of some financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the opposite party, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the opposite party, in this regard, has no legs to stand and is accordingly rejected.

iii. It was, however, submitted by the Counsel for the opposite party, that since the parties are governed by the terms and conditions of the Agreement, in case of delay, in delivery of physical possession of the unit, it (opposite party), was only liable to make payment of penalty, in the sum of Rs.5/- (Rupees Five only) per sq.feet, per month of the saleable area, for such period of delay, as per Article 4.c. of the Agreement. She further submitted that the opposite party is ready to pay this amount, for the period of delay, in delivery of possession of the unit. The hard-earned money of the complainant was used by the opposite party, for investment, for a long time. He was not refunded the amount, to which he was entitled to. If the opposite party is allowed to invoke Article 4.c. of the Agreement, in the instant case, that would amount to enriching it, at the cost of the complainant. Under these circumstances, shelter cannot be taken by the opposite party, under Article 4.c. of the Agreement. In this view of the matter, the plea taken by the opposite party, in this regard, has no legs to stand and is accordingly rejected. No other point, was urged, by Counsel for the parties. For the reasons recorded above, the complaint is partly accepted, with costs. The opposite party is directed as under:- To refund the amount Rs.48,03,140/-, to the complainant, alongwith interest @15% compounded quarterly, from the respective dates of deposits onwards. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices. To pay cost of litigation, to the tune of Rs.33,000/- (as prayed) to the complainant. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization. However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant). Certified Copies of this order be sent to the parties, free of charge. The file be consigned to Record Room, after completion. Pronounced. 01.08.2016 Sd/- [JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/- (DEV RAJ) MEMBER Sd/- (PADMA PANDEY) MEMBER -10-