ORDER

Dr. Sadhna Shanker, Member—The present appeal has been filed under Section 51 of the Consumer Protection Act, 2019 (for short “the Act”) by M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. (hereinafter referred to as the “builder company”) assailing the Order dated 19.04.2021 passed by the State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred to as the “State Commission”) in Complaint No. 176 of 2019, whereby the complaint of the complainant was partly accepted.

2. Heard the learned counsel for the builder company and the learned counsel for the respondent (hereinafter referred to as the ‘complainant’) and perused the record including the State Commission’s impugned Order dated 07.11.2017 and the memorandum of appeal.

3. There is a delay of 60 days in filing the present appeal.

In the interest of justice and considering the reasons mentioned in the application for condonation of delay, the delay in filing the appeal is condoned.

4. The brief facts are that the complainant was allotted plot No. 921, admeasuring 321 sq. yds. located at Phase-2, Omaxe, New Chandigarh, SAS Nagar, Mohali for a total sale consideration of Rs.31,72,345.98/- as per the agreement dated 07.02.2012. Against the said total consideration, the complainant paid a total amount of Rs.29,77,724/- as per the demand raised by the builder company. It is alleged that as per the terms and conditions specified in the agreement, the physical possession of the plot was to be handed over to the complainant within 24 months (18 months plus 06 months extended period as per condition no. 24(a) of the allotment letter/agreement date 07.02.2012) from the date of the agreement i.e. on or before 06.02.2014 but the builder company had failed to handover the possession of the plot within the stipulated period. It is further averred that after a delay of more than 7 years the builder company informed the complainant through a letter dated 25.01.2018 that due to certain changes in the allotment plan, complainant is relocated to plot No. 562 P24, admeasuring 289.27 sq.yds. but being unhappy with relocation of the plot the complainant requested for the refund of the amount paid by her but the builder company refused to refund the amount and again offered another plot no. 423B admeasuring 302.52 sq.yds. and when finally the complainant accepted the same, it was informed that the same had been sold to somebody else and ultimately, the complainant was relocated to Plot No. OCE/II/1870, located in Phase-3, Omaxe Cassia, New Chandigarh, which was accepted. The possession of the said plot was handed over to the complainant on 29.03.2019.

5. The complainant filed a complaint before the State Commission.

6. The builder company contested the complaint by filing written statement and raised several preliminary objections to the complaint. Firstly, the builder company stated that the complaint was not maintainable due to an arbitration clause in the agreement, which stated that all disputes to be settled through arbitration. Another preliminary objection is that the complainant has purchased the plot for commercial purpose, hence, she does not fall within the definition of ‘consumer’. Other objections are that the State Commission does not have territorial and pecuniary jurisdiction to entertain the complaint. Furthermore, it is contended that complex legal and factual matters requires adjudication by a civil court, not the State Commission. The builder company emphasized that time was not the essence in the contract regarding immovable property and that the agreement only stipulated the builder’s best efforts for possession within 24 months. It is further alleged that the builder company retained the right to relocate due to changes in the tentative allotment plan. The builder company highlighted that the complainant was relocated to another plot, possession of which was taken over, and a partial completion certificate for the project was obtained. Moreover,