IMPORTANT POINT
Whether the State Commission was justified in holding that the Complainants were not ‘Consumers’ as they had purchased ‘Commercial Space’.

ORDER

M. Shreesha, Member

Aggrieved by the orders dated 25.04.2019 in Consumer Complaint Nos. 226 and 227 of 2015, passed by the Haryana State Consumer Disputes Redressal Commission, Chandigarh (in short “the State Commission”), the Complainants preferred these First Appeals, under Section 19 of the Consumer Protection Act, 1986 (in short “the Act”). By the impugned order, the State Commission has dismissed the Complaint.

2. For reason cited in the Affidavit and also the Medical Certificate given for Parkinson’s Disease we find it a fit case to condone the delay.

3. Since both these Appeals deal with an identical issue, they are being disposed of by this common order. For the sake of convenience, First Appeal No. 815 of 2016 is being treated as a lead case.

4. The brief facts as set out in the Complaint are that the Developer (hereinafter referred to as “the Developer”) after obtaining license No. 97 of 2018 from the State of Haryana, launched a project by the name of “Landmark Cyber Space” at Sector 67, Gurgaon, Haryana. It is stated that the project was widely advertised and lured by the promises made in the advertisements, the Complainants decided to purchase a super area space of 1000 sq. ft. and invested their life savings of Rs.25,00,000/- ( i.e. 100% cost) vide two cheques dated 23.07.2008 and 08.08.2008 and entered into an Agreement with the Developer on 10.08.2008. It was stated that at the time of booking, according to condition D of the Application Form, the Developer had agreed that if the possession was not given within 36 months, the Developer would refund the amount paid within 30 days from the date of the receipt of the request for refund with 12% simple interest p.a. It was averred that as per condition No. 4 of the Agreement, the Developer agreed to pay Rs.55,000/- per month as assured return but stopped making this payment after the year 2013. It was averred that after a lapse of three years, the Complainants visited the site and had several meetings with the Developer and each time they were assured that the project would be completed very soon.

5. It was averred that the Developer had not complied with the terms and conditions of the Agreement dated 10.08.2008 and failed to give possession even after 7 years. On 31.07.2014, the Complainants got issued a legal notice to the Developer asking for refund of the amount according to condition no. 11 of the Agreement i.e. 2.2 times of the Principal Amount (Rs.25,00,000/-) along with 18% interest annually from the date of Agreement, but there was no response. The Complainant vexed with the attitude of the Developer approached the State Commission seeking the following reliefs:

“It is therefore, respectfully prayed that the complaint be accepted and opposite party be directed to refund 2.2 times amount of principal amount i.e. Rs.25 lacs with 18% interest the total claimed amount is Rs.8,434,471/- including the interest upto Nov. 2015 according to condition no.11 of the agreement in the interest of justice.

It is further prayed that the opposite party be directed to pay Rs. two lac for the expenditure on account of litigation charges and Rs. 1 lac for mental harassment as the opposite party has cheated the complainants as mentioned above.”

6. The Developer filed its Written Statement stating that the space booked by the Complainants was a ‘Commercial’ one and not ‘Residential’, hence, the Complainants do not fall within the definition of ‘Consumers’ as defined under the Act. It was averred that the Complainant relied upon the Memorandum of Understanding and the genesis of the MOU can be proved before the Civil Court; that the Developer has already applied for the Completion Certificate and if any time is taken for completion of the legal formalities the same cannot be treated as an intentional delay; that as per clause 4 of the Agreement the Developer has already paid the assured return three years as per Agreement; that despite their best efforts, the Developer could n