For the Petitioner :Mr. S. K. Agrawal, Advocate with Mr. S. Das, Advocate For the Respondent No. 1&2: Mr. Apoorv Singhal, Advocate ( In FA No. 1358 of 2016) For the Respondent:Mr. Soayib Qureshi, Advocate ( In FA No. 1359 of 2016) For the Respondent:Mr. Soayib Qureshi, Advocate ( In FA No. 1360 of 2016) For the Respondent:Mr. Ashish Verma, Advocate ( In FA No. 723 of 2016) For the Respondent:Mr. Ashish Verma, Advocate ( In FA No. 724 of 2016) For the Respondent:Nemo ( In FA No. 900 of 2016) For the Respondent:Nemo ( In FA No. 901 of 2016) For the Respondent:Mr. Neeraj Sobti, Advocate ( In FA No. 902 of 2016) -6- For the Respondent:Mr. Neeraj Sobti, Advocate ( In FA No. 903 of 2016) For the Respondent:Mr. Neeraj Sobti, Advocate ( In FA No. 904 of 2016) For the Respondent:Mr. Ashish Verma, Advocate ( In FA No. 905 of 2016) For the Respondent:Mr. Ashish Verma, Advocate ( In FA No. 906 of 2016) For the Respondent:Mr. Neeraj Sobti, Advocate ( In FA No. 907 of 2016) JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER By this order, we propose to dispose of the above noted appeals involving similar question on law and facts.

2. Shorn off unnecessary details, the facts relevant for the disposal of the appeals are that respondents in the appeals filed separate complaints against the appellant developer alleging that they booked residential plots in the development project undertaken by the appellant developer in the land falling in revenue estate of Village Islam Nagar in Sector 3, 4 and 4A of Pinjore Kalka Urban Complex District Panchkula. As per the terms and conditions of the Plot Buyers agreement arrived at between the respective parties, the opposite party developer was supposed to deliver the possession of the respective plots to the complainants within 36 months with a grace period of six months. According to the complainants, despite of the fact that they had made substantial payment against the consideration amount, the opposite party builder failed to deliver possession of the respective plots within the stipulated time. The complainants thus raised consumer disputes before the State Commission Haryana seeking refund of the amounts deposited by them alongwith 15% p.a. interest besides delay compensation on the agreed rate of Rs. 50/- per square yard for a period of one year.

3. The opposite party on being served with the notice of respective complaints filed written statement resisting the respective complaints. In the respective written statements, opposite party pleaded that before seeking application of allotment of plots from the public at large, the opposite party obtained necessary wild life clearance, forest clearance, letter of intent issued by DTCP Haryana for setting up of residential plotted colony on the additional land, airport clearance etc. It was further pleaded that on 23.03.2010, after the aforesaid clearances have been obtained, DTCP Haryana approved lay out plan of the projected residential colony and granted license no. 28 of 2010 to the appellant for developing plotted cum group housing colony on the subject land. Only thereafter the provisional registration of plot in favour of applicants was done after receiving certain payments varying between 7,50,000/- to 12,50,000/-. It is further alleged that on 08.11.2010, DTCP Haryana granted letter of intent for setting up of residential plotted colony on additional land of 10.94 acres falling in revenue estate of village Islam Nagar in Sector 3, 4 and 4A of Pinjore Kalka Urban Complex, District Panchkula. Another letter of intent was issued by DTCP for setting up of residential plotted colony on further additional land measuring 18.343 acres. The lay out plan for the entire project area measuring 198.801 was submitted for approval on 24.01.2011.

4. It was further pleaded by the appellant that after completing the aforesaid formalities, the appellant company made an application to the appropriate authority for grant of permission for extraction of ground water. In response to the said letter on 16.03.2011, DTCP Haryana directed the appellant not to carry out any earth work or construction work at the aforesaid 198.801 acres site without obtaining no objection certificate from the Irrigation Department, Haryana. This condition was imposed for the first time although there was no mention of such condition either in the letter of intent or the licence for development issued in favour of the appellant.

5. According to the opposite party, the delay caused in delivery of plots to the respective complainants was unintentional as the appellant was prevented by the restrictions imposed by DTCP on carrying out earth work or construction work without no objection from the Irrigation Department of Haryana, which no objection was granted after a span of almost two years on

20.03.2013. Immediately after receipt of no objection, the appellant vide letter dated 21.03.2013 requested for approval of lay out plan of the entire 198.801 acres and due to bureaucratic delays, the approval was received on 07.08.2013 / 14.10.2013 and license no. 55 & 74 for development of additional land were granted. On the receipt of the approval and license, the appellant opposite party applied for clearance and no objection from various authorities and the last formal clearance from National Board of Wild Life was received on 24.04.2015. It was pleaded by the opposite party that because of the aforesaid reason which were not within the control of the appellant, the delay has occurred. Therefore, in view of Force Majeure clause in Plot Buyers agreement, the opposite party cannot be said to be guilty of deficiency in service. Besides aforesaid plea on merit, the opposite party referred to the arbitration agreement between the parties and pleaded that matter should be referred to arbitration. It was also pleaded that complaints were not maintainable for the reason that complainants are not the consumers as defined under section 2 (1) (d) of the Consumer Protection Act, 1986 ( in short, the Act).

6. State Commission Haryana on consideration of the pleadings and evidence rejected the pleas of the opposite party regarding arbitration clause as also the maintainability of complaint. On merits, State Commission in all the complaints found the appellant opposite party guilty of deficiency in service as it had failed to deliver possession of the plots within the stipulated time and allowed the respective complaints by directing the opposite party to refund the money paid by the complainants against the consideration amount to the respective complainants alongwith 12% interest p.a.. Besides, Rs.25,000/- was awarded as compensation and Rs.10,000/- as litigation expenses in each case.

7. Being aggrieved of the order of the State Commission, opposite party preferred the above noted appeals.

8. Learned counsel for the appellant/OP has assailed the impugned order firstly on the ground that the State Commission has failed to appreciate the facts, particularly, with respect to the Force Majeure plea taken by the appellant/OP. Learned counsel has taken us through the record and submitted that DTCP Haryana, after completion of formalities of wildlife clearance, forest clearance, airport clearance granted to the appellant/company, granted licence No. 28 of 2010 on 23.3.2010 and approved the layout plan to the appellant/company for setting up the a plotted cum Group Housing Colony on the land admeasuring 169.864 acres falling in revenue estate of Village Islam Nagar in Sector 3, 4 and 4A of Pinjore Kalka Urban Complex, District Panchkula.

9. It is contended that only after grant of licence, applications for provisional registration of plots were sought from the customers including the respondents/consumers. It is further contended that after completion of formalities, Plot Buyers agreements were executed between the appellant and the respondents wherein the payment plan was changed from Time Bound Payment Plan to Development Linked Payment Plan. It is submitted that vide letter dated 9.12.2011, DTCP revised the Road Circulation plan for the Sectors 3, 4, 4A & 5 of the Pinjore Kalka Urban Complex and accordingly called upon the appellant to submit revised layout plan. Pursuant to the above directions of the DTCP, the revised lay out plans were promptly submitted by the appellant/company with the concerned authorities on 12.12.2011. The revised lay out plans were ultimately approved on 14.10.2013 meaning thereby that till the said date, the appellant could not have proceeded with the developmental work. In the meanwhile, another obstruction came in the way of development work as the new guidelines for environmental clearance were issued and for that purpose clearance from Wildlife Board was required. The said clearance could not be obtained because Wildlife Board could not be in existence at the relevant time and this resulted further delay in the project. Learned counsel submitted that although the wild life clearance was earlier obtained in the year 2009, but in view of the new guidelines, the appellant was compelled to apply afresh for the wildlife clearance. It is also argued that there was stay against the development on the subject land by the order of Supreme Court which remained in operation from 19.4.2012 to 12.12.2012. It is also argued that the State Commission has ignored the aforesaid aspects which caused delay in the development of the project and delivery of plots to the respondents and the obstructions were not within the control of the appellant.

10. Thus, in view of the Force Majeure plan, the complaint ought to have been dismissed. 11 Mr. Neeraj Sobti, learned counsel for the respondent in FA/902/2010 submits that benefit . of Force Majeure clause is not available to the appellant for the reason that the appellant entered into the plot buyers agreement with the respondents by concealment of material facts.

12. Learned counsel has contended that undisputedly, vide letter dated 16.3.2011, DTCP, Haryana restrained the appellant from carrying out any earth work or construction work at the site without obtaining NOC from irrigation department, Haryana which permission was ultimately received in April 2015. Despite of the aforesaid restriction on undertaking construction work, the appellant without disclosing the said facts, executed Plot Buyers agreement with the respondents on 9.9.2011, which shows the mala fide on the part of the appellant and amounts to deficiency in service as well as unfair trade practice.

13. Counsel for the other respondents have also argued on similar lines.

14. We have considered the rival contentions and perused the record. On careful consideration of record, we do not find merit in the contention of the appellant. In our considered view, the protection of Force Majeure clause in the agreement between the parties is not available to the appellant builder for the reason that it is the stand of the appellant that vide letter dated 16.03.2011, DTCP Haryana had directed the appellant not to carry out any earth work or construction work at the subject site without obtaining no objection certificate from the Irrigation Department Haryana. It is also admitted case of the appellant that ultimate clearance for undertaking construction work was received vide letter dated 24.04.2015 of National Board of Wild Life granting clearance for the development project. Despite of the aforesaid restraint on the appellant for carrying out development work, admittedly, the appellant executed Plot Buyers agreement with the respective complainants during the period 23.06.2011 to 23.04.2012. It is not the case of the appellant that while entering into the agreement, the appellant disclosed about the restraint letter dated 16.03.2011 issued by DTCP Haryana. Thus, it is clear that appellant by concealment of material fact defrauded the respondents / complainants to execute the agreement contained Force Majeure clause, which in our considered opinion is unfair practice amounting to deficiency in service. As the agreement containing Force Majeure clause has been executed by concealment of material fact on the part of the opposite party, the aforesaid agreement is not binding on the complainants. Thus, appellant cannot take benefit of said clause. In view of the discussion above we do not find fault with finding of State Commission holding the appellant to be guilty of deficiency in service and directed the appellant to refund the money paid by the respective complainants with 12% interest besides payment of compensation and litigation expenses.

15. Learned counsel for the appellant has contended that State Commission has failed to appreciate that respondents complainants are not the consumers as envisaged under section 2 (1) (d) of the Act for the reason that their real motive in booking the subject plots was to make profit by subsequently sale of plots at enhanced rate.

16. In support of his contention, learned counsel for the petitioner has drawn our attention to the record of FA Nos. 723 & 724 of 2016 as also FA Nos. 905 and 906 of 2016 to show that respondents Sukhjinder Singh and Teg Singh Sandhu had booked two plots each, which according to the appellant clearly indicate that they are not the bonafide consumers and they had booked the plots with the intention to make handsome profit by selling the plots at an enhanced rate. It is further argued that on perusal of record of FA No. 1358 of 2016 would show that it was jointly owned by Surinder Kumar Singla and another and one of them was already owning property in Panchkula, which indicate that intention on the part of the said respondents in booking the plot was to make commercial profits.

17. We do not find merit in the contention of learned counsel for the appellant. Similar issue came up before this Commission in Consumer Cases No. 137, 145 and 146 of 2010 titled Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. and Another. In the said matters, the Coordinate Bench vide its judgment dated 12.02.2015 answered the question as under: The first question, which arises for consideration in this case is as to whether the complainant can be said to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. The aforesaid provision, to the extent it is relevant, provides that the consumer means any person, who hires or avails any services for a consideration but does not include a person, who avails of such services for any commercial purpose. The term service has been defined in Section 2(1) (o) of the Act to mean service of any description which is made available to potential users and includes housing construction. Since the complainant had booked three residential flats which were to be constructed by the developer, she would be a consumer unless it is shown that she had booked the said residential flats for a commercial purpose. The plea taken by the opposite parties in this regard is that booking of as many as three residential flats in the same project clearly shows that the said flats were purchased by the complainant for the purpose of making investments, meaning thereby that she did not intend to live in those flats but intended to sell them later at a higher price. Vide letter dated 29.10.2012, the complainant was directed to file an affidavit, disclosing therein that for what purpose the three flats were booked by her. In compliance of the aforesaid direction, the complainant filed an affidavit stating therein that she had booked three residential flat for use and occupation for herself and her family members. She wanted to retain one flat for use as her own residence and the other two were for the use and occupation of her in-laws and younger sister Ms. Priya Chopra. She also stated that she does not have any flat or residential house in her name and is staying in a rented accommodation provided by the company; whereas her in-laws are staying in a house constructed in pre-independence period, which is more than thirty years old. She also stated that her younger sister Priya is staying with her parent and does not own a residential flat in her name. According to the complainant she wanted all the family members to stay together and at the same time also have their respective independence and that is why three flats in the same project were booked by her. No evidence has been led by the opposite parties to rebut the aforesaid averments made by the complainant. If the complainant wanted her younger sister as well as her in-laws to stay in her vicinity so that the family can be together while simultaneously maintaining their individual privacy, it cannot be said that the flats were purchased by her for a speculative purpose or for making profit by selling them at a later date. If one of the family members has resources to buy houses for the other members of the family and utilises those resources with a view to enable the family members to live together in the same complex, it would be difficult to say that such a purchase would be for a commercial purpose. Yet another and probably more important question which arises in this connection, is as to what would constitute the commercial purpose within the meaning of Section 2(1)(d) of the Consumer Protection Act. The expression commercial purpose has not been defined in the Act and therefore, as held herein below by the Honble Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583 , we have to go by the dictionary meanings, In the absence of a definition, we have to go by its ordinary meaning Commercial denotes pertaining to commerce (Chambers 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). Going by the Dictionary meaning of the expression Commerce as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged. In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services. It would ordinarily include activities such as manufacturing, trading or rendering services. In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s). Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity. As observed by the Honble Supreme Court in Laxmi Engineering Works (supra) what is a commercial purpose is a question of fact to be decided in the facts of each case and it is not the value of the goods that matters but the purpose for which the goods brought are put to. The same would be equally applicable to for hiring or availing services. In any case, it is not appropriate to classify such acquisition as a commercial activity merely on the basis of the number of houses purchased by a person, unless it is shown that he was engaged in the business of selling and purchasing of houses on a regular basis. If, for instance, a person has two-three children in his family and he purchased three houses one for each of them, it would be difficult to say that the said houses were purchased by him for a commercial purpose. His intention in such a case is not to make profit at a future date but is to provide residential accommodation to his children on account of the love and affection he has for his children. To take another example, if a person has a house say in Delhi but he has business in other places as well and therefore, purchases one or more houses at other places where he has to live presently in connection with the business carried by him, it would be difficult to say that such acquisition is for commercial purpose. To give one more example, a person owning a house in a Metropolitan city such as Delhi, or Mumbai, may acquire a house at a hill station or a place, which is less crowded and more peaceful than a Metropolitan city, in my view, it cannot be said that such acquisition would be for commercial purpose. In yet another case, a person may be owning a house but the accommodation may not be sufficient for him and his family, if he acquires one or more additional houses, it cannot be said that he has acquired them for commercial purpose. Many more such examples can be given. Therefore, it cannot be said that merely because of the complainant had agreed to purchase three flats in the same complex the said acquisition was for a commercial purpose.

18. In the instant matters, counsel for the appellant has failed to show any cogent evidence which may indicate that the respondents complainants or any one of them has been indulging in sale purchase of the properties or that complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for profit. Thus, the question raised by counsel for the appellant is answered in the negative.

19. In view of the discussion above, we do not find merit in the above noted appeals. Appeals are accordingly dismissed. Copy of the order be placed in each file. ......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER