SHALINI SINGH Vs. ARENA SUPER STRUCTURES PVT. LTD.

JUDGEMENT

(1.) Sometime in the year 2012-13, a Group Housing Project under the name and style of "Lotus Arena" situated in Sector-79, Noida, was being developed by Opposite Party No.1, namely, M/s Arena Super Structures Pvt. Ltd., and marketed by Opposite Party No.2, namely, M/s Lotus Greens Developers Pvt. Ltd. The Complainant approached the Opposite Parties and booked a residential Apartment in the Project, for which a sum of Rs.2,00,000/- was paid by the Complainant on 28.02.2014. The receipt for the said transaction was issued on 09.08.2014, allotting Apartment No. 701 in Tower-7, admeasuring Super Area 1995 sq. ft., in the Project. The Complainant was required to pay the sale consideration of Rs.98,15,715/- plus other charges and taxes, if any. Besides the initial payment of Rs.2,00,000/- made on 28.02.2014, the Complainant also made payments of Rs.5,00,000/-, Rs.1,80,000/-, Rs.30,000/-, Rs.6,20,000/-, Rs.2,18,148/- and Rs.8,74,074/- to the Opposite Parties between 09.08.2014 and 16.04.2015. The receipts are annexed as Annexure-B (colly.). In this way, the Complainant paid to the Opposite Parties a total sum of Rs.26,22,222/-. On 09.04.2015, Apartment Buyer Agreement (Annexure-A) was executed between the Complainant and Opposite Party No.1. Initially, the Apartment was booked by the Complainant on construction-linked plan basis, which, on the request of the Opposite Parties, was subsequently changed to 30+30+40 ratio and the 30% cost price of the land stands paid to the Opposite Parties. However, the Opposite Parties, for the reasons best known to them, did not develop the Project and also did not raise further demands from the Complainant. The Apartment in question was to be handed over to the Complainant in 42 months plus grace period of 6 months from the date of booking, i.e. 28.02.2014. On visit to the site, the Complainant found that there was negligible construction and possession was not possible in near future, necessitating her to write various mails to the Opposite Parties, including the legal notice dated 12.10.2018 (Annexure-D), but there was no response to the same.

(2.) Alleging deficiency in service on the part of the Opposite Parties on the aforesaid counts, the present Complaint has been filed by the Complainant, seeking a direction to the Opposite Parties to refund the amount paid by her, together with interest % 18% p.a. and litigation costs.

(3.) Upon notice, both the Opposite Parties contested the Complaint by filing their respective Written Versions. It was inter alia stated on behalf of Opposite Party No.1 that: (i) the Complainant is not a 'consumer' under Section 2(1)(d) of the Consumer Protection Act, 1986 as she has purchased the apartment only for investment purposes; (ii) as the Complainant has prayed for return of the money paid, i.e. Rs.26,22,222/- with interest @ 18% p.a., this Commission has no pecuniary Jurisdiction to entertain the Complaint; (iii) the Project is still within the time period, as agreed to in the Buyer Agreement and, therefore, the Complaint is premature; (iv) Clause 5.1 read with Clause 5.2 of the Buyer Agreement stipulates for completion of the project within 48 months from the date of execution of the Agreement, subject to the Complainant complying with her obligations and Force Majeure and reasons such as delay on the part of Government Authorities in granting necessary Approvals/Sanctions etc.; (v) owing to the slowdown in the Real Estate Market, the Investors have started filing cases before the Consumer Fora as well as RERA Authorities with a view to seek refund and interest; (vi) refund would deplete the funds for completion of the construction of the Project and would have a cascading impact on the Project's financial health; (vii) the Project is registered with the Uttar Pradesh Real Estate Regulatory Authority and the provisions of the Real Estate (Regulation and Development) Act, 2016 (for short "RERA") provides overriding effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force, and if any Complaint is entertained by this Commission, would conflict with the objective and purpose of RERA; (viii) as against 9 Residential Towers, for which Building Plans were sanctioned by the Noida Authority on 29.04.2014, superstructure of 3 towers is complete and that of other towers is partially raised; (ix) construction work of the Project was severally affected on account of various reasons, including non-acquisition of approach roads by Noida Authority, Farmers' protest and agitation, demonetization of Rs.500/- and Rs.1000/- legal tenders, NGT orders, whereby construction of all buildings was stopped, etc., for which Opposite Party No.1 was entitled to seek extension of time to complete the construction; (x) most of the Buyers, who booked Apartment under the Construction Linked Plan, did not make timely payment, inasmuch as against the demanded sum of Rs.438 Crores from the Buyers, only a sum of Rs.380 Crores has been received, which resulted in delay in the Project; and (xi) Opposite Party No.1 is eligible to avail the "zero period" benefit till 08.01.2018, as the land for this project, except for about 200 meters, was finally given after 7 years of allotment on the said date.