ORDER

DR. SADHNA SHANKER, MEMBER

1.   The present appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) by M/s Emaar MGF Land Ltd. (hereinafter referred to as the ‘builder’) assailing the Order dated 05.11.2018 passed by the State Consumer Disputes Redressal Commission, (hereinafter to be referred to as ‘State Commission’) in complaint no. 492 of 2017 whereby the complaint was allowed.

2.       There is a delay of 185 days in filing the present appeal by the builder.

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.

3.       The relevant facts of the case are that on 09.09.2008, one Shri Sumit Punchhi (hereinafter referred to as the ‘original allottee’) applied for booking an apartment admeasuring 1920 square ft. bearing no. E-502 in "The Meadows", Sector 76, Gurugram, Haryana, for a total consideration of Rs. 65,15,280/-. Vide allotment letter dated 23.09.2008, the builder allotted the said apartment to the original allottee. The original allottee vide application dated 03.12.2009 requested the builder to change the unit from E-502, The Meadows to Q-401 and also for transfer of the amount of Rs. 5 lakh deposited from unit no. E 502 to unit no. Q-401, the new relocated unit. The original allottee also requested for change of the name from Sumit Punchhi to Shri Surinder Kumar Punchhi (here-in-after referred to as the ‘complainant’) and Smt. Geetika Punchhi. And at the request of the original allottee, the allotment was relocated from ‘The Meadows’ to ‘The Enclave’, Sector-66, Urban Estate, Gurgaon, Haryana unit bearing no. Q-401 which was allotted vide letter dated 07.12.2009. The Buyer’s agreement was executed between the parties on 16.08.2010. The total consideration of the flat was Rs.60,69,885.29/- whereas the complainant has paid a sum of Rs.60,56,920/-. As per terms and conditions of the agreement, the possession of the flat was to be handed over to the complainant within 30 months (along with grace period) from the start of construction. As per the agreement, the complainant was entitled for compensation for delay @ Rs.5/- per sq. ft. per month of the super area. It is alleged that the construction was started by the builder on 21.08.2010 and consequently, possession of the unit was required to be offered to the complainant on or before 20.08.2012 but builder failed to deliver the possession within the stipulated period. The sale consideration of the unit was enhanced from Rs.60,60,885.29/- to Rs.66,40,129/-. Thus, there was deficiency in service on the part of the builder.

4.       Alleging deficiency in service on the part of the builder, the complainant filed a complaint before the State Commission.

5.       The builder contested the complaint by filing a written statement raising the preliminary objection that the complainant is not a ‘consumer’ within the meaning of the Act and that the complaint does not fall within the pecuniary jurisdiction of the State Commission. It is also stated that the complainant had not made the payment as per the schedule of payment and due to non-payment, the complainant is not entitled to receive any compensation and there is no deficiency on the part of the builder.

6.       After appreciation of the facts of the case, the State Commission, vide its order dated 05.11.2018 allowed the complaint and the builder was directed to pay the interest at the rate of 9% on the amount paid by the complainant in different phases upto 14.03.2018. along with Rs.21,000/- as litigation charges.

7.       Being aggrieved by the order of the State Commission, the builder has filed the present appeal before this Commission with the following prayer:

8.       Before us, the counsel further contended that the complainant did not meet the requirement of a ‘Consumer’ as defined under Section 2 (1)(d) of the Consumer Protection Act, 1986, as the unit in ques