VINOD GUPTA Vs. EMAAR MGF LAND LIMITED

JUDGEMENT

(1.) The present Consumer Complaint under Sec. 21(a)(i) of the Consumer Protection Act, 1986 (for short "the Act") has been filed by the Complainants, husband and wife (hereinafter to be referred as the "Complainants") against the Opposite Parties, namely, M/s Emaar MGF Land Limited and M/s. Brijbasi Projects Private Limited (hereinafter to be referred as "the Developers") seeking refund of the entire amount deposited by the Complainants towards the purchase of the Unit in the Project under the name and style of "The Palm Terraces Select" as the Opposite Parties Developer completely failed to deliver the possession as promised.

(2.) The facts of the case as averred in the Complaint are that the Complainants, husband and wife, vide Application dtd. 27/7/2010, applied for allotment of a Residential Unit in the Project, namely, "The Palm Terraces Select" (hereinafter to be referred to as "the Project") proposed to be developed by the Opposite Parties Developer at Sector 66, Gurgaon. The Total sale Consideration of the Unit is ?1,66,75,890/-. The Complainants were allotted Unit No. PTS-05-0801 on 8TH Floor in Tower/Block No. 05 admeasuring 2410 Sq. Ft. along with the exclusive right to use two Car Parking Space at the rate of ?3,00,000/- each. The Builder Buyer's Agreement (hereinafter to be referred as the Agreement) was executed between the parties on 22/11/2010. As per Clause 14(a) of the Agreement, the physical possession of the allotted Unit was to be handed over to the Complainants within a period of 36 months from the date of start of construction, subject to force majeure conditions. Clause 14(a) of the Agreement reads as under:-

(3.) According to the Complainants, they have made a payment of ?1,61,61,140/- i.e. approx. 96% of the total sale consideration of ?1,66,75,890/- as demanded by the Developer without any default but still the Developer has miserably failed to complete the construction of the Project and to hand over the possession of the allotted Unit, complete in all respect, by 22/11/2013 as promised. It is further averred that the Complainants have obtained the home loan for a total sum of ?1,50,00,000/- from the Financial Institution/Bank for making the payment of the costs of allotted Unit and are paying the huge EMI. The Complainants made persuasive efforts to enquire about the exact status of the construction from the Developer but in vein. Even, they were not permitted to visit the site on the pretext of construction work is going on. It is stated that from the last seven years, the Complainants are waiting for offer of possession and as such it is a clear cut case of deficiency of service on the part of the Opposite Party Developer. It is also stated that in case of default in making the payment of installment on the part of the Flat Buyers, the Developer is entitled to charge exorbitant interest @24% p.a. in terms of Clause 13(a) of the Agreement, however, for the delay on their part in offering the possession of the allotted Units, they are liable to pay delayed compensation of meagre amount of ?7.50 per sq. ft. per month of the Super Area which amounts to an Unfair Trade Practice. Thus, alleging deficiency in service on the part of the Opposite Party Developer, the Complainants have the filed present complaint seeking following reliefs:-