ASHAY SHAH Vs. IREO GRACE REALTECH PVT. LTD.

JUDGEMENT

(1.) This is a complaint u/s 21 (a) (i) of the Consumer Protection Act, 1986 filed by the complainant seeking refund of the amount deposited in respect of the flat booked by them with the opposite parties in a project promoted and developed by the opposite parties along with penal interest and other compensation, alleging deficiency in service and unfair trade practice on account of the delay in handing over possession of the flat.

(2.) In brief, the facts of the case are that the complainant had booked a flat in the project "The Corridors" promoted and developed by the Opposite parties viz. Ireo Grace Realtech Pvt., Ltd. located on Golf Course Extension Road, Sector 67 A, Gurgaon, Haryana on 28/2/2013 for their residential purpose. An allotment letter was issued by the opposite party to the complainant on 7/8/2013 allotting flat no. CD-C10 " 07 - 704 in Tower C 10, admeasuring 1300 sq ft in the above said project for a total sale consideration of Rs.1,28,31,283.00. The complainant deposited Rs.1,26,03,836.00 towards this flat by way of various instalments. Thereafter, an Apartment Buyer's Agreement (in short "the ABA") was entered into between the complainant and the opposite party on 14/4/2014. As per clause 13.3 of the ABA, the opposite party committed to offer possession of the flat within 42 months with an additional grace period of six months i.e. by 23/7/2017 failing which compensation at the rate of Rs.7.50 per sq foot was promised by the opposite party to the complainant. However, possession of the said flat was not offered by the opposite party till the date of filing of the present complaint. Hence, the complainant has approached this Commission alleging deficiency in service and unfair trade practice by the opposite party in not adhering to the committed date of handing over possession and imposing entirely one sided conditions in the ABA that are in favour of the opposite party which the complainant as a consumer was unable to contest and was compelled to accept. The complainant has sought full refund of the deposited amount and other reliefs and is before us with the following prayer:

(3.) The opposite party has contested the complaint by way of reply and evidence by way of affidavit. The contention of the learned counsel for the opposite party is that the earnest money deposited by the complainant was forfeited as the booking of the apartment was cancelled in accordance with the terms and conditions set out in the booking application form on account of default in payments. The complaint filed before this Commission is premature as the period of 48 months needs to be calculated with effect from 27/11/2014, the date on which the fire safety scheme was approved. He further states that this Commission has no jurisdiction under the CP Act, 1986 to amend/ modify/ re-write the terms of the agreement. It is averred that the allegations in the complaint are of a contractual nature and as such triable only in a civil court. It is also averred that the complainant is not a consumer since he is a resident of Mumbai and booked the flat for speculative gains. It has been submitted that under the CP Act 1986 compensation can only be as per Sec. 14 (1) (d) of the CP Act 1986. This sec. is not attracted in this case. The OP's case is also that the ABA related to an agreement to sell an apartment by the OP and no "service" was to be rendered within the meaning of Sec. 2 (1) (o) of C P Act, 1986 to the complainant. Therefore, there is no deficiency in service involved.