IMPORTANT POINT
Occupancy Certificate – Thus an allottee/consumer was entitled to seek refund of the amount deposited by him with the Opposite Party since the Builder had failed to fulfill his contractual obligations of obtaining the Occupancy Certificate.

ORDER

Subhash Chandra, Presiding Member—This order shall dispose of First Appeals No.872 of 2021 and 873 of 2021 since they arise from the same impugned order which pertains to the same project and have the same conspectus of facts. For convenience, facts are being taken from First Appeal No.872 of 2021.

2. This Appeal has been filed by the Appellant/Opposite Party against the order dated 21.09.2021 of the State Consumer Disputes Redressal Commission, Rajasthan (for short “the State Commission”) in Complaint No.151 of 2019 filed by the Respondent (hereinafter referred to as “the Complainant”), praying for allowing the Appeal and to set aside the impugned order and to pass any such further other, as may be deemed fit and proper.

3. Briefly, the facts are that the Complainant is an allottee in the Appellant’s project “Avalon Royal Park”, Bhiwadi, Rajasthan and was allotted plot No.101, Tower A-4, 1st Floor admeasuring 1250 sq. ft. of super area for a basic sale price of Rs.30,44,400/- along with EDC/IDC, PLC, open car parking, IFMS, power backup, club membership etc. A booking amount of Rs.6,27,696/- was paid and a Builder Buyer Agreement (BBA) was executed on 27.04.2013. As per Clause 4 A, possession was proposed to be delivered by the Appellant within 42 months subject to force majeure circumstances with a grace period of six months. The Complainant paid a sum of Rs.35,97,440/- to the Appellant in installments. However, possession was not offered by 27.04.2017 as per the provisions in the BBA. A pre-possession intimation dated 13.05.2019 was issued by the Appellant to the Complainant and thereafter, on the basis of the Occupancy Certificate dated 20.03.2020, an offer of possession was made on 01.09.2020. However, the Complainant filed Complaint before the State Commission on 02.08.2019 seeking refund of the money deposited by him with compensation in view of the delay on the part of the Appellant in not making an offer of possession as promised.

4. On contest, the State Commission held, vide the impugned order, that the Appellant was guilty of deficiency in service and was liable to refund the money received by it from the Complainant. Accordingly, it was directed that the sum of Rs.35,97,440/- be refunded within three months with simple interest @ 10% p.a., failing which the interest payable would be 12% p.a., along with Rs.2 Lakhs and Rs.50,000/- towards complaint expenses, failing which interest @ 9% p.a. would be payable on the amount of Rs.2,50,000/-.

5. This order is impugned before us.

6. We have heard learned Counsel for the parties and perused the material on record. Both the parties have filed their short synopsis of written arguments and copies of the judgments relied upon.

7. On behalf of the Appellant, it was contended that the promised date of possession within 48 months was subject to force majeure circumstances which were beyond the control of the Appellant for which it was to be entitled to a reasonable extension of time as per Clause 8 B of the BBA. The Complainant was also required to make timely payments of the installments and other charges. It was admitted that there was a delay in the offer of possession; however, the same was ascribed to certain force majeure circumstances for which the Appellant was not liable to be held responsible. It was stated that vide letter dated 13.05.2019, an intimation regarding pre-possession formalities requiring the payment of Rs.3,14,368/- had been issued to the Complainant. Thereafter, a final demand letter cum registration information was issued on 01.09.2020. However, the Complainant failed to comply with these demand letters and instead chose to prefer a Complaint before the State Commission. The order of the State Commission is challenged on the grounds that it failed to appreciate that (i) the Complainant was not a consumer since he was a resident of Bharatpur, Rajasthan and had purchased the flat for investment purpose; (ii) that the construction had been completed