RAN VIJAY SINGH Vs. PURI CONSTRUCTION PRIVATE LIMITED

JUDGEMENT

(1.) This complaint has been filed under sec. 12(1) (a) of the Consumer Protection Act, 1986 (in short, the 'Act') alleging deficiency in services and unfair trade practice in respect of the residential apartment booked by the complainants with the opposite party.

(2.) In brief, the facts of the case are that the complainant had booked a residential flat in the project 'Emerald Bay', Sector 104, Gurgaon, Haryana on 28/1/2013 being developed and executed by the opposite party. On 11/2/2013 he was provisionally allotted unit number 1503 in Tower A-3 on the 15th floor by the opposite party for a sale consideration of Rs.2,39,81,694.00 inclusive of all charges. A Builder Buyer's Agreement (in short, 'Agreement') was signed between the complainant and the opposite party on 10/12/2013 and as per the Agreement possession was promised after 48 months, with a grace period of 6 months i.e. by 10/3/2018 which they have failed to do despite payment of Rs.2,23,81,694.00 between January 2013 and January 2017 by the complainant under the construction linked plan as on the date of filing of this complaint. It is averred that the Agreement was executed after 11 months of the booking of the apartment by which time the complainant had already paid Rs.27,57,376.00 and he was therefore not in a position to contest the one sided agreement loaded in favour of the opposite party. It is also averred that though clause 11 (a) of the Agreement promised construction in 48 months, on 26/9/2017 the opposite party informed that the project was delayed, that there was a change in building plans of the project and sought a grace period of 6 months for completion. However, the construction of certain facilities and amenities of the project were deferred by the builder and a 'Future Building Plan' was proposed in Pocket III where various common recreational facilities had been originally proposed which was objected to by the complainant before the Director, Town and Country Planning. It is further averred that while certain construction was deferred to the future, the payments under the construction linked plan continued to be collected on the basis of super built area which is a deficiency in service. The complainant avers that the deferment of construction of common facilities has negated his payment of preferential location charges as he does not have any view of landscaped area, swimming pool or club house as originally promised. He is therefore before us with the following prayer:

(3.) The opposite party has resisted the complaint by way of written statement. The averments of the complainant have been denied and it has been contended that the complainant is not entitled to claim compensation. The opposite party has taken preliminary objections to the complaint on the grounds that complainant is not a 'consumer' within the definition of sec. 2(1)(d)(ii) of the Act as he has invested in the subject flat for speculative purposes; that this Commission lacks jurisdiction in view of the Agreement providing for arbitration and that there has been no deficiency in service as the project was never intended to be completed in one phase. Unfair trade practice is denied as also the fact that there has been delay in view of force majeure conditions of demonetisation, orders of the Hon'ble National Green Tribunal (NGT) placing restraints on construction and non-payment of instalments by other allottees.