RAHUL GUPTA Vs. M/S. SUPERTECH LIMITED

JUDGEMENT

(1.) The admitted facts of the case are that the opposite party announced a residential project called 'Capetown' situated at GH-01/A, Sector-74, Gautam Budh Nagar, Noida-201301. The complainant booked a unit bearing no. R026CC11202A on 13th (thirteenth) floor of Tower CCI with approximately super area of 2385 sq. ft on 14.11.2011 by paying the booking amount of Rs.8,81,190/- paid on 14.11.2011 and 23.11.2011. The opposite party issued an Allotment Letter-cum-Buyer's Agreement dated 03.12.2011. The total consideration of the unit was Rs.90,35,772/- and the project was to be completed by February 2014 with six months of grace period. The complainant took a home loan from ICICI Bank on 17.01.2012 and a total sum of Rs.83,57,353/- till 28.12.2013 was paid by the complainant to the opposite party.

(2.) Case of the complainant is that despite its commitment to give possession of the subject property by 2014, no offer of possession had been received by the complainant till the date of filing of the present complaint. The complainant also wrote several letters to the opposite party regarding delay in handing over of the unit. No offer of possession was also made despite service of legal notice dated 01.03.2018. The complainant has prayed that opposite party be directed to refund his deposited amount of Rs.83,57,353/- alongwith penal interest of 18% interest per annum and also pay compensation of Rs.10,00,000/- towards mental agony, harassment, discomfort and Rs.1,00,000/- towards litigation cost.

(3.) The claim is contested by the opposite party on several grounds. It is submitted that complainant is not a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986 and no cause of action has accrued in this case and there is no deficiency in service on the part of the opposite party. It is submitted that complainant is only entitled for an amount calculated @ Rs.5 /- per sq. yds of super area of unit per month on account of delay of possession and that complainant is not entitled to any other relief. It is submitted that possession could not be handed over due to pendency of as many as 471 Writ Petitions before Allahabad High Court whereby the farmers have challenged the acquisition of land; due to protest and agitation of litigating farmers; due to severe resource crunch; due to various restraint orders of National Green Tribunal relating to ground water extraction for construction etc. and also due to issue before the National Green Tribunal in the matter titled as Amit Kumar and Ors. Vs. Union of India and Ors whereby interim directions were issued to stop the construction within 10 km radius of Okhla Bird Sanctuary. It is submitted that despite these hurdles, the opposite party had been able to complete the project and obtained occupancy certificate dated 23.11.2017 for several towers of the project including the tower of the complainant. It is submitted that opposite party was carrying out final finishing work and was in the process of offering possession of the subject property to the complainant. On these contentions, it is submitted that since the delay is not attributable to the opposite party and since it is ready to hand over the possession of the subject property, the complaint is liable to be dismissed.