V .K.JAIN,PRESIDING MEMBER - (1.)Ghaziabad Development Authority (GDA) started construction of 14 Multi -storied Residential Apartment Towers. However, the construction of the aforesaid residential towers ran into difficulties and came to be a grinding halt, in the year 1995. The Authority then decided to dispose them off, either through an outright sale/lease deed or through a joint venture agreement, where the joint venture would complete and market the flats on behalf of the GDA in such a manner that it was able to recover full cost of its investment and highest possible margin, without any further risk on its investments and thereafter, allow the joint venture partner to obtain a return on its investments. The flats were to be advertised and marketed by the joint venture partner and the deed of conveyance was to be executed only by GDA, which continued to be the sole owner of the property.
The opposite party which is a partnership firm of two companies submitted highest bid for Module II in Indirapuram Scheme, which was accepted by the GDA. As per the MOU executed between the opposite party No. 1(hereinafter referred to as the developer) and GDA, a Monitoring Committee under the chairmanship of Vice Chairman, GDA was to be constituted for monitoring the progress for timely completion of the project. It was also agreed between the developer and GDA that a joint account in the name of the Authority and the Developer shall be opened in a nationalized Bank and all the monies received out of the proceeds of bookings etc. will be credited to the said account. The minimum amount stipulated in the MOU was to be paid to the Authority out of the accumulation in the said account and shortfall, if any, was to be met by the developer from his own sources. After meeting the aforesaid minimum liability, the proceeds in the account were to be distributed between the Authority and the developer in the ratio of 60:40. Once all the amount due to the authority had been paid, all the proceeds in the account were to go to the developer. It was also agreed in the MOU that the developer would complete the construction and internal development within seven years from the date of the agreement. It was also agreed between the GDA and the developer that in case of any litigation by the purchaser, the responsibility will be that of the developer and the said clause should be incorporated in the Flat -Buyers Lease Deed.

(2.)THE complainant Smt. Kavita Ahuja submitted three separate applications for purchase of flats in the aforesaid project and paid the booking amount of Rs.5.00 lacs each against all the three bookings. Three separate Letters of Allotment were issued to the complainant, allotting flats No. Deodar 1301, Deodar 1302 and Deodar 1303, to her for a consideration of Rs.1,09,76,100/ -, 1,13,93,825/ - and 1,25,66,150/ - respectively. The construction was to be completed within 22 months of the date of commencement. The complainant paid a total sum of Rs.65,85,800/ -, 68,36,400 and 75,39,730/ - respectively against flat No. Deodar 1301, Deodar 1302, and Deodar 1303 respectively. However, the developer failed to complete the construction within the stipulated time and according to the complainant when she visited the site on 02.02.2008, she found that the construction had barely commenced with no prospects of its being completed in near future. The complainant wrote a letter to the developer, seeking complete details as to the stage of construction of the flats and the date on which the possession would be handed over to her. The developer however, did not respond to the said letter of the complainant. Later, vide letter dated 12.3.2009; the developer intimated a revised installment schedule on 31.3.2009. In reply, the complainant pointed out to the developer that it had failed to hand over the possession of the flat and sought refund of the money she had paid along with interest on that amount @ 21% per annum. In reply, the developer offered a rebate of Rs.5/ - per sq. ft. per month to the complainant which was not acceptable to her. Being aggrieved from the failure to refund the amount paid by her, the complainant is before this Commission, seeking refund of the aforesaid amount, alongwith interest @ 21% per annum, compensation and cost of litigation. Initially, the complaint was filed only against the developer. Later on, opposite party No. 2 and 3 were impleaded in view of the preliminary objection taken by the developer.
(3.)THE complaints have been resisted by the developer on the ground that (i) time was not the essence of the contract between the parties (ii) the delay in completion of the project took place due to adverse global market scenario which seriously affected the infrastructure and development projects across the Globe (iii) In case of delay, compensation is payable only in terms of Clause -11 of the Agreement, which provides for compensation at the rate of Rs.5/ - per sq. ft. of the super area of the flat per month, for the period of delay in the cases where delay was due to reasons other than force -majeure, unknown availability of material, change of Laws etc. and (iv) if the complainant wants to cancel the booking, 10% of the price of the flat is liable to be forfeited by the developer. (v) The complainant having booked the flats for investment cannot be said to be a consumer.
The first question, which arises for consideration in this case is as to whether the complainant can be said to be a 'consumer' within the meaning of Section 2(1)(d) of the Consumer Protection Act. The aforesaid provision, to the extent it is relevant, provides that the 'consumer' means any person, who hires or avails any services for a consideration but does not include a person, who avails of such services for any commercial purpose. The term 'service' has been defined in Section 2(1) (o) of the Act to mean service of any description which is made available to potential users and includes 'housing construction'. Since the complainant had booked three residential flats which were to be constructed by the developer, she would be a 'consumer' unless it is shown that she had booked the said residential flats for a commercial purpose. The plea taken by the opposite parties in this regard is that booking of as many as three residential flats in the same project clearly shows that the said flats were purchased by the complainant for the purpose of making investments, meaning thereby that she did not intend to live in those flats but intended to sell them later at a higher price. Vide letter dated 29.10.2012, the complainant was directed to file an affidavit, disclosing therein that for what purpose the three flats were booked by her. In compliance of the aforesaid direction, the complainant filed an affidavit stating therein that she had booked three residential flat for use and occupation for herself and her family members. She wanted to retain one flat for use as her own residence and the other two were for the use and occupation of her in -laws and younger sister Ms. Priya Chopra. She also stated that she does not have any flat or residential house in her name and is staying in a rented accommodation provided by the company; whereas her in -laws are staying in a house constructed in pre -independence period, which is more than thirty years old. She also stated that her younger sister Priya is staying with her parent and does not own a residential flat in her name. According to the complainant she wanted all the family members to stay together and at the same time also have their respective independence and that is why three flats in the same project were booked by her. No evidence has been led by the opposite parties to rebut the aforesaid averments made by the complainant. If the complainant wanted her younger sister as well as her in -laws to stay in her vicinity so that the family can be together while simultaneously maintaining their individual privacy, it cannot be said that the flats were purchased by her for a speculative purpose or for making profit by selling them at a later date. If one of the family members has resources to buy houses for the other members of the family and utilises those resources with a view to enable the family members to live together in the same complex, it would be difficult to say that such a purchase would be for a commercial purpose.

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