REENA KAPUR Vs. EMAAR MGF LAND LIMITED

JUDGEMENT

(1.) Deepa Sharma, Presiding Member. - The present complaint has been filed with the contention that complainants are joint allottees of two units in the project of the opposite party called 'Gurgaon Greens' located at Sector-102, Gurgaon, Haryana. The opposite party had represented that they were in the process of constructing luxury apartments residential society and had also represented that they had secured all necessary layout / development plans/licenses etc. from the competent authorities. They also represent that on payment of Rs.7,50,000.00, they shall issue an allotment letter and within 90 days execute Builder Buyer Agreement. This representation was made in the month of August/ September 2012 and on 17/10/2012 the complainants made initial payment of Rs.7,50,000.00 respectively against each of the two units towards booking amount, for which no receipt was issued on the said date. A Provisional Allotment Letter for the units GGN220601 and GGN220602 were issued on 27/1/2013 and demand of Rs.7,22,010.60 and Rs.7,40,550.00 were also raised against the two units which included 50% of EDC and 50% of IDC which was payable latest by 21/2/2013. The complainants made payment of said sum on 22/2/2013. Since there was delay of one day, the complainants were made to pay penalty of 24% interest for such delay. A demand was also raised vide letter dtd. 1/3/2013 for Rs.8,78,730.00 and Rs.8,88,000.00respectively for the two units and the payments had been made by the complainants within time. It was only on 4/4/2013 that the opposite party asked the complainants to execute two Builder Buyer Agreement which had been provided by them. The total consideration price of the unit GGN220601 was Rs.1,28,84,456.02 and for other unit GGN220602, the consideration price was Rs.1,30,69,850.02 excluding parking and some other charges. They were made to sign the Builder Buyer Agreement as refusal would have resulted in forfeiture of the amount which they had already paid. They, therefore, signed the Builder Buyer Agreement as they did not have any other option. The complainants had opted for the Construction Linked Payment Plan. The delivery time of the two units was 36 months. The complainants also took loan from HDFC Bank. Two separate loans were taken for two units. A Tripartite Agreement dtd. 4/4/2013 was entered into between the complainants, opposite party and the bank and, thereafter, the loan was disbursed. The loan was given on an interest of 10.40% per annum on a variable rate linked plan. The rate of interest increased to 10.75% in 2013 and currently it is 9.45%. Between the period April 2013 to June 2017, the complainants continued to make the payment as per demands. Till 26/7/2017, the complainants disbursed all instalments sent by the opposite party and they had paid Rs.99,52,654.00 against unit no.GGN220601 and sum of Rs.1,00,93,414.00 against unit no. GGN220602. The project as per the representation of the opposite party was to be completed within 36 months from the date of first payment i.e. by October, 2015 and the units were to be handed over along with all amenities. Even if, period of 36 months were to commence from the date of signing of the Builder Buyer Agreement, the units were to be delivered by April 2016. It was alleged that when the units were not handed over within the stipulated period, they sent several emails to the opposite party and the opposite party kept changing the delivery dates and all the time gave them new delivery date. It is submitted that vide email dtd. 18/1/2017, the opposite party had unilaterally amended Builder Buyer Agreement and decreased the delayed payment charges from 24% p.a. to 12% p.a. It is submitted that this email was sent with oblique motive and malafide intentions. Even thereafter, the complainants continued to disburse the loan amount although the possession of the units were not handed over to them. On 12/5/2017, a notice was served upon the opposite party asking them to refund the entire deposited amount. It is contended in the complaint units were still not complete and it is not available for possession to them and it is prayed that opposite party be directed to refund the entire deposited amount alongwith compound interest @ 24% and they shall also pay compensation of Rs.20,00,000.00 and Rs.25,00,000.00 on account of mental agony and financial loss.

(2.) Notice of the present complaint was issued to the opposite party. The claim is contested by the opposite party. They have not denied that complainants were allottees of the two units. It is submitted that this Commission has no pecuniary and territorial jurisdiction and also that the complaint is delayed. It is submitted that work had slowed down on the site due to some issues with the contractor. It is further submitted that opposite party is planning to obtain the occupancy certificate from the competent authorities and willing to hand over the possession of the said premises to the complainants. It is submitted that work of construction had slowed down as the company had undergone re-structuring and process of demerger pursuant to Scheme of Arrangement pending before the Hon'ble High Court of Delhi. It is further contended that complainants are having their own house and they have booked the apartments for commercial / investment / speculative purpose and, therefore, they are the not the consumers within the meaning of Sec. 2 (1) (d) of the Consumer Protection Act, 1986 (in short, the Act). It is further submitted that Builder Buyer Agreement has a continuing effect and determines the rights and contentions of the parties and thus rights have to be determined in terms of the clauses of the Builder Buyer Agreement. It is further submitted that time was not the essence of the contract. It is further submitted that opposite party is not responsible for mental agony caused to the complainants. It is denied that complainants were threatened or pressurised to sign the Builder Buyer Agreement. On these contentions, it is submitted that there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

(3.) The parties have led their evidences. Parties have also filed their written arguments.