Rohit Chaudharyand . vs M/S. Vipul Ltd.

2023INSC807 Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5858 OF 2015

ROHIT CHAUDHARY & ANR. ....APPELLANTS

versus

M/S VIPUL LTD. ....RESPONDENT(S)

JUDGMENT

ARAVIND KUMAR, J.

1. The interpretation of the word and expression

“Commercial Purpose” defined under Section 2(1)(d)

of the Consumer Protection Act, 1986 (hereinafter

referred to as the ‘Act’ for the sake of brevity) is the

pivotal issue in this appeal.

FACTUAL MATRIX

Signature Not Verified 2. The appellants intended to purchase a Digitally signed by Jayant Kumar Arora Date: 2023.09.06 16:03:56 IST Reason: commercial space in the project called ‘Vipul World 2

Commercial’ situated at Gurugram, Haryana,

promoted by the respondent. After having come to

know that Mrs. Bindu Rawlley and Mr. Talwinder

Singh intended to sell their shares in office unit

No.306 on the third floor in the aforesaid

commercial complex allotted to them by the

respondent, appellants agreed to purchase the same

and accordingly made payment of entire agreed

amount to their vendors. Recognizing the said

transfer, the names of the appellants came to be

recorded by the respondent in substitution to the

names of the vendors of appellants. The customer

code allotted to the original allotees was continued

in the name of the appellants. It was agreed

between the appellants and their vendors that

appellants would pay a sum of Rs. 18,07,100 to the

original allotees and the balance amount of 3

Rs.34,27,050 to the respondent as and when

demanded by the respondent. In furtherance of the

same and on payment to the original allotees, the

fact of such sale of shares was intimated to the

respondent.

3. Subsequent to the aforesaid circumstance,

respondent raised a demand on the appellants and

accordingly the amount was paid which was

outstanding as on the date of demand. The

respondent issued the receipt and also allotment

letter allotting commercial space in “Vipul Business

Park” – 105 and thereafter re-allotted unit No.814 on

8th Floor for a sale consideration of Rs.51,51,415.

This unilateral change was objected to by the

appellants and in response to the same, the

respondent threatened to forfeit the amount paid till 4

date and also to cancel the allotment of the office

space.

4. Respondent forwarded a buyer’s agreement to

the appellant and called upon them to return the

same after signing and same was duly complied

under the circumstances that prevailed. The

respondent had agreed to deliver possession of the

premises to the appellants within 24 months from

the date of execution of such agreement and for

reasons unknown, the same was not delivered. In

the interregnum, appellants continued to pay

instalments as and when demands were raised by

the respondent (same has been denied by

respondent). As per the statement of account issued

by the respondent to the appellants, they have

acknowledged total receipt of Rs. 50,28,122/- 5

and payment of Rs.81,995/- made towards service

tax was not reflected in the statement of accounts.

As per the payment schedule forwarded by the

respondent to the appellants, a sum of Rs.2,47,148/-

was due and payable to the respondent by the

appellants within 30 days from the date of

possession notice, which was not issued.

5. On account of non-intimation about delivery of

possession of the office space unit allotted to the

appellants and the inaction of the respondent in not

delivering possession of the office space allotted,

the appellants approached the National Consumer

Redressal Commission at New Delhi by filing a

complaint, which was preceded by issuance of a

legal notice whereunder the appellants demanded

refund of Rs.51,10,117/- and interest @ of 18% P.A.

amounting to Rs.42,52,143/- after terminating the 6

buyer’s agreement dated 27.11.2009. A further sum

of Rs.50 lakhs was also claimed towards mental

agony. The Commission by impugned order dated

11.05.2015, dismissed the complaint in limine on

the ground of maintainability holding that appellants

are not ‘consumers’ as defined under Section 2(1)

(d) of the Act as appellants were already carrying on

business for the purposes of their livelihood and

therefore, it cannot be said that the property which

was the subject matter of the complaint before the

Commission was being purchased by them

exclusively for the purposes of earning livelihood by

way of self-employment. The Commission also

opined that Commercial space booked by the

appellants was for earning profit and not for the

purpose of earning livelihood by way of self-

employment by relying upon the statement of first 7

appellant recorded by the Commission. Hence the

appeal.

6. We have heard the arguments of Shri Digendra

Sharma, Mr. Ajay Kumar Singh, Mr. Anubhav

Bhandari and Mr. Niharika Dubey, learned counsel

appearing for the appellants and Mr. M.R.

Shamshad, Mr. Atul Sharma, Mr. Ankur Sharma and

Mr. Alok Tripathi, learned counsel appearing for the

respondent.

7. It is the contention of the learned counsel

appearing for the appellants that the Commission

had erred in not appreciating the fact of appellants

having booked the commercial space only for the

purpose of earning livelihood by way of self-

employment and not for the purposes of reselling or

making profit due to escalation of price as pleaded

in the complaint; in the statement that came to be 8

recorded by the Commission, nowhere it has been

stated by the appellants that commercial space

booked by them was for the purpose of making

profit and mere running of a dealership business of

Reliance Industries and engaging themselves in

business of investment in property, perse would not

indicate or suggest that appellants intended to sell

the same; the appellants though had approached

the respondent for delivery of possession of the

commercial space allotted to them, till date it was

not delivered and silence on the part of the

respondent had caused mental agony, frustration

and depression to the appellants; the unilateral

change of the office unit from Third floor to Eighth

floor without consent of the appellants and

forwarding a unilateral agreement and forcing the

appellants to sign the same, by receiving all 9

payments would tantamount to deceptive practice

and falls within the meaning of ‘unfair trade

practice’ as defined under the Consumer Protection

Act; inordinate delay on the part of the respondent

in completing the project and handing over

possession of the office space allotted to the

appellants has resulted in appellants undergoing

serious mental agony and as such they should be

compensated as prayed for in the complaint.

8. Rebutting the said contentions, learned

counsel appearing for the respondent Mr. M.R.

Shamshad, Mr. Atul Sharma, Mr. Ankur Sharma and

Mr. Alok Tripathi, has supported the impugned order

and has contended that appellants would not fall

within the four corners of the definition of

‘consumer’ as defined under Section 2(1)(d) of the

Act and the statement of the appellant No.1 10

recorded on oath by the commission while hearing

the maintainability of the complaint, clearly shows

that first appellant was earlier engaged in the

business of caustic soda as a dealer of M/S Reliance

Industries and presently engaged in the business of

investments/dealing in property, and this would

indicate that appellants were already engaged in the

business and therefore, the property in question

could not be said to be bought exclusively by the

appellants for the purpose of earning their livelihood

by self-employment and as such, the order of

dismissal would not call for interference. He would

elaborate his submissions by contending that

appellants are already engaged in the business and

the Act would exclude those persons who avail

services for commercial purposes and the office

space was not purchased by the appellants 11

exclusively for the purpose of earning livelihood; the

complaint does not disclose any cause of action and

it also ought to have been dismissed for suppression

of fact namely the appellants having defaulted in

the payments. Accordingly, he has sought for

dismissal of the appeal.

DISCUSSION AND OUR FINDINGS:

9. The National Commission at the outset

considered the question as to whether the

appellants are “Consumer” and answered in the

negative. It has been held that appellants would not

be entitled to seek redressal of their grievance

under the provisions of the Act. On the basis of the

statement of the complainant made before it, the

Commission has arrived at a conclusion that

complainant No.1 was running a dealership business

of M/s. Reliance Industries for their livelihood and

they are also engaged in the business of investment 12

in property. Hence, the commercial space booked by

the complainants cannot be said to be for the

purposes of earning livelihood by self-employment

or in other words the appellants are not consumers

as defined under Section 2(1)(d) of the Act. In this

background it would be necessary to note Section

2(1)(d) of the Act and it reads as under:

“consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) 12 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 12 13

[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 13 [but does not include a person who avails of such services for any commercial purpose];

(Emphasis supplied by us)

10. The aforesaid definition has received the

attention of the National Commission in the case of

Synco Textiles Pvt. Ltd. Vs. Greaves Cotton

and Company Ltd. reported in 1990 SCC OnLine

NCDRC 3 : (1991) 1 CPJ 499 and approved by this

Court in Lilavati Kirtilal Mehta Medical Trust v.

Unique Shanti Developers and others (2020) 2

SCC 265. Whereunder this Court has followed the

principles laid down in Laxmi Engineering Works

v. P.S.G. Industrial Institute (1995) 3 SCC 583

whereunder it came to be held:

14

“10. A review of the provisions of the Act discloses that the quasi-judicial bodies/authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not courts though invested with some of the powers of a civil court. They are quasi- judicial tribunals brought into existence to render inexpensive and speedy remedies to consumers. It is equally clear that these forums/commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. The forum so created is uninhibited by the requirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself; any recognized consumers' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf. The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for “business-to-consumer” disputes and not for “business-to-business” disputes. This scheme of the Act, in our opinion, is relevant to and helps in 15

interpreting the words that fall for consideration in this appeal.

11. Now coming back to the definition of the expression ‘consumer’ in Section 2( d), a consumer means insofar as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression ‘resale’ is clear enough. Controversy has, however, arisen with respect to meaning of the expression “commercial purpose”. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. ‘Commercial’ denotes “pertaining to commerce” (Chamber's Twentieth Century Dictionary); it means “connected with, or engaged in commerce; mercantile; having profit as the main aim” ( Collins English Dictionary) whereas the word ‘commerce’ means “financial transactions especially buying and selling of merchandise, on a large scale” ( Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit” he will not be a ‘consumer’ within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more 16

particularly with a view to obviate any confusion — the expression “large scale” is not a very precise expression — Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose” — a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self- employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are 17

put to. The several words employed in the explanation, viz., “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-

employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions “used by him”, and “by means of self-employment” in the explanation. The ambiguity in the meaning of the words “for the purpose of earning his livelihood” is explained and clarified by the other two sets of words.

15. In Lucknow Development Authority v. M.K. Gupta [(1994) 1 SCC 243] the question was whether a public authority engaged in constructing and selling houses 18

can be said to be rendering a ‘service’ and whether the person purchasing such houses can be called a ‘consumer’ within the meaning of the said definition. While answering the question in the affirmative, a Bench of this Court (Kuldip Singh and R.M. Sahai, JJ.) also examined the scheme and object of the Act and the ambit of the definition of the expression ‘consumer’. The following observations are apposite: (SCC pp. 251-54, paras 2 and 3)

“To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, ‘to provide for the protection of the interest of consumers’. Use of the word ‘protection’ furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets long-felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory.

*** The word ‘consumer’ is a comprehensive expression. It extends from a person who buys any commodity to consume either as eatable or otherwise from a shop, business house, corporation, store, fair price shop to use of private or public services. In Oxford Dictionary a consumer is defined as, ‘a purchaser of goods or services’. In Black's Law 19

Dictionary it is explained to mean, ‘one who consumes. Individuals who purchase, use, maintain, and dispose of products and services. A member of that broad class of people who are affected by pricing policies, financing practices, quality of goods and services, credit reporting, debt collection, and other trade practices for which State and Federal Consumer Protection Laws are enacted.’ The Act opts for no less wider definition. It reads as under:

‘ “consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;

20 Explanation.— For the purposes of sub- clause (i), “commercial purpose” does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self- employment;’

It is in two parts. The first deals with goods and the other with services. Both parts first declare the meaning of goods and services by use of wide expressions. Their ambit is further enlarged by use of inclusive clause. For instance, it is not only purchaser of goods or hirer of services but even those who use the goods or who are beneficiaries of services with approval of the person who purchased the goods or who hired services are included in it. The legislature has taken precaution not only to define ‘complaint’, ‘complainant’, ‘consumer’ but even to mention in detail what would amount to unfair trade practice by giving an elaborate definition in clause (r) and even to define ‘defect’ and ‘deficiency’ by clauses (f) and

(g) for which a consumer can approach the Commission. The Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services.

21. We must, therefore, hold that:

(i) The explanation added by the Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18-6-1993 is clarificatory in nature and applies to all pending proceedings.

21 (ii) Whether the purpose for which a person has bought goods is a “commercial purpose” within the meaning of the definition of expression ‘consumer’ in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case.

(iii) A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood, by means of self-

employment is within the definition of the expression ‘consumer’.”

11. A plain reading of the expression “consumer”

indicates that any person who buys any goods for

consideration which has been paid or promised or

partly paid and partly promised under any system of

deferred payment and includes any user of such

goods other than the person who buy such goods.

Such goods for consideration paid or promised or

partly paid or partly promised, or under any system

of deferred payment, when such use is made with

the approval of such person, but does not include a 22

person who obtains such goods or services for

resale or for any commercial purpose. It is amply

clear from the above definition that the Parliament

has excluded from the scope of ‘Consumer’ for

igniting proceedings under the Act, a person who

obtains goods or services for re-sale or for any

commercial purpose. Going by the plain dictionary

meaning of the words used in the definition section

the intention of Parliament must be understood to

be to exclude from the scope of the expression

“consumer” any person who buys goods for the

purpose of their being used in any activity engaged

on a large scale for the purpose of making profit.

The words ‘for any commercial purpose’ must be

understood as covering the cases other than those

of resale of the goods. Thus, it is obvious, that

Parliament intended to exclude from the scope of 23

definition not merely persons who obtain goods for

resale but also those who purchase goods with a

view to using such goods for carrying on any activity

on a large scale for the purpose of earning profit.

Thus, persons buying goods either for resale or for

use in large scale profit making activity will not be a

consumer entitled to protection under the Act, which

would be a plain interpretation of this definition

clause. The intention of the Parliament as can be

gathered from the definition section is to deny the

benefits of the Act to persons purchasing goods

either for purpose of resale or for the purpose of

being used in profit making activity engaged on a

large scale.

12. The expression ‘commercial purpose’ has

not been defined under the Act. In the absence

thereof we have to go by its ordinary meaning. 24

‘Commercial’ denotes “pertaining to commerce”

(chambers 20th Century dictionary); it means

‘connected’ with or engaged in commerce;

mercantile; “having profit as the main aim” (Collin’s

English Dictionary); relate to or is connected with

trade and traffic or commerce in general, is

occupied with business and commerce. The

Explanation (added by Consumer Protection

(Amendment) Act 50 of 1993 (replacing Ordinance

of 24 of 1993 w.e.f. 18.06.1993) excludes certain

purposes from the purview of the expression

‘commercial purpose’- a case of explanation to an

exception to amplify this definition by way of an

illustration would certainly clear the clouds

surrounding such interpretation. For instance, a

person who buys a car for his personal use would

certainly be a consumer, but if purchased for plying 25

the car for commercial purposes namely as a taxi, it

can be said that it is for a commercial purpose.

However, the Explanation clarifies that even

purchases in certain situations for ‘commercial

purposes’ would not take within its sweep the

purchaser out of the definition of expression

‘consumer’. In other words, if the commercial use is

by the purchaser himself for the purpose of earning

his livelihood by means of self-employment, such

purchaser of goods would continue to be a

‘consumer’. This court in the case of Lilavati

Kirtilal Mehta Medical Trust v. Unique Shanti

Developers (supra), has held that a straight jacket

formula cannot be adopted in every case and the

broad principles which can be curled out for

determining whether an activity or transaction is for

a commercial purpose would depend on facts and 26

circumstances of each case. Thus, if the dominant

purpose of purchasing the goods or services is for a

profit motive and this fact is evident from record,

such purchaser would not fall within the four corners

of the definition of ‘consumer’. On the other hand,

if the answer is in the negative, namely if such

person purchases the goods or services is not for

any commercial purpose and for one’s own use, it

cannot be gainsaid even in such circumstances the

transaction would be for a commercial purpose

attributing profit motive and thereby excluding such

person from the definition of ‘consumer’. When

there is an assertion in the complaint filed before

the Consumer Court or Commission that such goods

are purchased for earning livelihood, such complaint

cannot be nipped at the bud and dismissed.

Evidence tendered by parties will have to be 27

evaluated on the basis of pleadings and thereafter

conclusion be arrived at. Primarily it has to be seen

as to whether the averments made in the complaint

would suffice to examine the same on merits and in

the event of answer being in the affirmative, it

ought to proceed further. On the contrary, if the

answer is the negative, such complaint can be

dismissed at the threshold. Thus, it would depend on

facts and circumstances of each case. There cannot

be any defined formula with mathematical precision

to examine the claims for non-suiting the

complainant on account of such complaint not

falling within the definition of the expression

‘consumer’ as defined under Section 2(1)(d).

13. Now turning our attention to the facts on hand,

namely, perusal of the complaint filed before the

Commission would indicate that appellants have 28

specifically pleaded that they were in search of

office space “for their self-employment and to

run their business and earn their livelihood”.

In the statement recorded on oath by the

Commission, while hearing the maintainability of the

complaint, the first appellant has stated that he was

earlier engaged in the business of caustic soda as a

dealer of M/S Reliance Industries and presently

engaged in the business of investment/dealing in

property. He has nowhere stated that he had

proposed to purchase the office space from the

respondent for the purpose of either selling the

same for higher price or the said property was being

purchased as an investment for being sold in future.

The statement of the appellant was that he engaged

in the business of investment/dealing in property

would not ipso facto suggest or indicate the 29

property proposed to be purchased from the

respondent was for commercial purpose. Even

according to the statement of the first appellant, he

was earlier engaged in the business of castic soda

and now engaged in the business of

investment/dealing in property. There will be varied

eventualities. By way of illustration it can be noted

that the appellants might have intended to take this

property for running their business to eke out their

livelihood or open the office for the purposes of

dealing in the existing business or the possibility of

the proposed office being used as a corporate office

or head office or branch office of their existing

business which cannot be ruled out. It is in this

background the averment made in paragraph 6 of

their complaint filed before the Commission would

acquire significance and the relevant averment has 30

been noticed hereinabove and at the cost of

repetition when perused it would clearly indicate

that when the appellants were in search of office

space “for their self-employment and to run

their business and earn their livelihood ” they

had entered into an agreement to purchase the

same from the original allotees. Neither this plea nor

the statement made on oath recorded by the

Commission would belie the stand of the appellants

that they intended to purchase the office space for

their livelihood. In this scenario, the finding recorded

by the Commission in Paragraph 8 of impugned

order is erroneous and contrary to the definition

clause of the expression “consumer” as defined

under section 2(1)(d).

31

14. It is an undisputed fact that respondent has

agreed to sell the office space in the Vipul Business

Park to the appellants. Record would also disclose

that in all the appellants paid Rs.51,10,117/- or

respondent had received the said amount from the

appellants. Though, a faint attempt has been made

by the appellants to contend that there was

unilateral change namely the respondent had

agreed to sell the office space 306 at third floor to

office space No.814 in 8th floor, we are not inclined

to entertain the said plea in as much as the

agreement has been duly signed by the appellants

and in token of having accepted the same they have

affixed their signatures to the said agreement and it

is too late in the day for the appellants to retrace

their steps on this issue. The said contention stands

rejected.

32

15. Clause 15 of the buyer’s agreement would

clearly indicate that the possession of the premises

was agreed to be delivered within 24 months from

the date of agreement which undisputedly had not

taken place, or in other words the allotted office

space was not delivered even after expiry of 24

months from the date of agreement. In fact, in the

counter affidavit filed by the respondent an evasive

denial has been made by contending that

permissive possession of the commercial space had

been offered by the respondent to the appellants.

However, it is not pleaded that the commercial

space allotted to the appellants is ready for

occupation. The statement of account dated

28.01.2014 forwarded to the appellants by the

respondent would indicate the receipt of payment of

Rs.51,10,117/- by the respondent. Though, 33

respondent has received the payment towards

service tax, same is not reflected in the statement

of account. Be that as it may. On account of inaction

of the respondent in not complying with their

demand, appellants got issued a legal notice calling

upon the respondent to refund Rs.93,62,025/- which

is inclusive of the principal amount of Rs.51,10,117/-

and Rs.42,52,143/- towards interests accrued

thereon calculated @ 18% per annum and also

demanded compensation of Rs.50,000,00/- towards

mental agony by terminating the agreement.

16. In the normal course, we would have

remitted the matter back to the Commission for

adjudicating the complaint on merits in the light of

finding recorded hereinabove. However, we desist

from this attractive proposition for reasons more

than one. Firstly, the dispute relates back to the 34

year 2006; secondly, the appellants have already

repudiated the contract. Hence, in this background

directing the respondent to execute the sale deed in

respect of the office premises would not arise, which

is also not the claim of the claimant and only prayer

which can be considered for being examined would

relate to refund of the amount. It is not in dispute

that in all the respondent has received a sum of

Rs.51,10,117/- which is also admitted by the

respondent in its counter affidavit but contending

that instalments which was due and payable had not

been remitted on time and as such interest is

payable on the delayed payments. However, the

receipt of the amount of Rs. 51,10,117/- is not

disputed by respondent. There being no plea with

regard to the building or commercial complex being

ready for being occupied, having been raised by the 35

respondent in its counter affidavit and the

communication dated 25.01.2016 also not disclosing

that the office premises proposed to be sold in

favour of the appellants being ready to be occupied

but only evidencing the fact that the permissive

possession of premises was being offered, it cannot

be presumed that possession of office premises

which is ready to offer was being delivered to the

appellants. Hence, to balance the equities, it would

be appropriate to direct the respondent to refund

the amount it has received from appellants with

interest calculated @ 12% per annum which would

not only meet the ends of justice but would also

offset the interest loss if at all, if any caused to the

respondent on account of delayed payments of the

instalments by the appellants and keeping in mind

the appreciated value of the asset namely office 36

premises which was proposed to be sold by the

respondent to the appellant.

17. For the reasons afore-stated we allow this

appeal, set aside the order dated 11.05.2015

passed by the National Consumer Disputes

Redressal Commission in consumer complaint

No.276 of 2015 and allow the complaint in part by

directing respondent to refund sum of

Rs.51,10,117/- with interest @ 12% per annum from

the date of complaint till date of payment with

litigation cost of Rs. one lakh.

.……………………….J. (S. Ravindra Bhat)

…………………..……J. (Aravind Kumar) New Delhi, September 06, 2023