Consumers, as defined under the Act, are entitled to timely possession and compensation for delays from the developer.

ORDER

13. The contention of the Learned Counsel for the Opposite Party Developer that the Members of the Complainant Society are not the ‘Consumers’ and that they had booked the flats/apartments for commercial purpose and earning profits, is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Allottee was dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case. Therefore, we are of the considered view that the Allottees are the “Consumers” as defined under Section 2 (1)(d) of the Act.

14. So far as, the plea that since the Allottees had defaulted in making timely payment as per Payment Plan, the offer of possession was not made to them despite the fact that the Completion Certificate was expected to be obtained very soon, is concerned, we are of the considered view that the Opposite Party Developer was entitled either to cancel the Agreement or charge delay interest in case of default in payment, as per terms and conditions of the Agreement while offering the possession and demanding the final payment. The Opposite Party Developer cannot take shelter under this lame excuse for the delay in completing the Project and offering the possession to the Allottees. Accordingly, the said plea is rejected.

18. A bare perusal of the afore-extracted Table would reveal that the Members of the Complainant Society had booked respective flats/Apartments in the Project of the Opposite Party Developer during the period from 09.04.2011 to 22.02.2013. All the Members of the Complainant Society had paid substantial amount, i.e almost 90% to 95% of the total Sale Consideration to the Opposite Party Developer. The committed date of delivery of the possession of the booked Flats/Apartments, complete in all respect along with amenities, in terms of the Allotment Letters issued to the Members of the Complainant Society, was latest by December, 2013 except in the case of the Allottee at Sl. Nos. 5 and 18 whereby the possession was to be delivered latest by December, 2014. According to the aforesaid Table, the Completion Certificate and that too partial only, has been obtained on 08.02.2016 in respect of 15 Members out of aforesaid 23 Members of the Complainant Society and the partial Completion Certificate in respect to the remaining Members of the Complainant Society has been obtained on 14.06.2019 only. Mr. Raghuvinder Singh Khushwaha has withdrawn his name from the Complainant Society and settled the matter with the Opposite Party Developer. Undoubtedly, all the Members of the Complainant Society had taken possession of the allotted Flats during the period from 10.09.2018 to 05.04.2021. Hence, there is delay of about 4 to 5 years in handing over the possession by the Opposite Party Developer to the Members of the Complainant Society from the promised date of delivery of possession as mentioned in the Allotment Letters for which they are certainly entitled for compensation. In this regard, attention is drawn to the judgment of the Hon’ble Supreme Court in the case of Wg. Cdr. Arifur Rahman Khan v. DLF Southern Homes Pvt. Ltd. - (2020) 16 SCC 512 decided on 24.08.2020 wherein the Apex Court has held as under:-

“ A failure of the Developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression service ‟ in Section 2 (1) (o) means a se