The builder's delay in possession constituted deficiency of service, requiring compensation with interest under consumer protection law.

1. This appeal under S.19 of The Consumer Protection Act, 1986 is in challenge to the Order dated 5.11.2018 of the State Commission in complaint No. 491 of 2017.

2. Mr. Arjun Jain, learned Counsel appears for the appellant (the 'builder co.'). Mr. Raktim Gogoi, learned Counsel appears for the respondents No. 1 and No. 2 (the 'complainants'). The respondent No. 1 (the 'complainant No. 1') present in person also makes his submissions.
The record including inter alia the State Commission's impugned Order dated 5.11.2018 and memorandum of appeal has been perused.

3. The matter pertains to a builder - buyer dispute. Briefly, the builder co. entered into an agreement with the complainants in respect of the subject flat on 14.9.2010. The total consideration of the unit was Rs.56,36,404.06. The complainants paid an amount of Rs.54,98,003 plus some taxes to the builder co. in the period from 14.9.2010 to 26.11.2014. As per clause 14(a) of the agreement, the possession of the flat was to be handed over within 24 months from the date of start of construction with a grace period of 06 months. It is the builder co.'s assertion that the construction of the project was started on 21.8.2010. The complainants do not object to this date in the arguments today. Counting from the said date the 30 month commitment period inclusive of the grace period for handing over possession elapsed on 20.2.2013. Despite having received almost the entire consideration, possession of the flat was not handed over to the complainants in the assured period or even within a reasonable period beyond (reasonable period here would connote a period which appears reasonable per se and which a reasonable man of ordinary prudence would not normally agitate). The complainants went before the State Commission on 11.8.2017, i.e. 4 years 5 months 21 days after the expiry of the commitment period. During the pendency of the proceedings before the State Commission, possession was offered on 14.3.2018. According to the complainants the actual physical possession of the flat was made on 27.9.2018. The builder co. does not dispute the said date in the arguments today. Holding the abnormal unreasonable delay in handing over possession of the flat to be 'deficiency in service' on the part of the builder co. the State Commission has ordered for compensation by way of interest at the rate of 9% per annum on the amount deposited by the complainants for the period of delay ("xx xx It is a case where the reasonable interest @ 09% could be allowed. Hence with these observations the complaint stands allowed and the interest @ 9% be allowed or calculated on the amount paid by the complainants in different phases. xx xx"). It has also stipulated that the rate of interest shall stand enhanced to 12% if the payment is not made within two months ("xx xx In case, there is a breach in making payment within the stipulated period of two months, in that eventuality, the complainants would further be entitled to get the interest @ 12% per annum, for the defaulting period xx xx "). It has awarded Rs.21,000 as cost of litigation.

4. Learned Counsel for the builder co. submits that the complainants obtained this flat for "speculative purpose" and "undue enrichment" and therefore they are not 'consumer' within the meaning of S.2(1)(d)(ii) of the Act 1986.
Learned Counsel for the complainants submits that the complainants No. 1 and No. 2 are father and son and they have no other own flat except the subject flat. After taking the belated possession, they are residing in the same.
The complainant No. 1 in person cat