PRERNA BANERJEE Vs. PURI CONSTRUCTION PRIVATE LIMITED

JUDGEMENT

(1.) Heard Mr. Shivam Sharma, Advocate, for the complainants and Mr. Pravin Bahadur, Advocate, for the opposite party.

(2.) Mrs. Prerna Banerjee and Ranjan Banerjee have filed above complaint for directing the opposite party (hereinafter referred to as the builder) (i) to withdraw the cancellation letter dtd. 18/11/2015, (ii) to handover possession of the apartment to the complainants, complete in all respect, in conformity of the Apartment Buyer's Agreement, with all the facilities as per quality standard promised and execute conveyance deed, (iii) to adjust the amounts charged for parking and preferential location, towards the sale consideration of the apartment, (iv) to pay delayed compensation in the shape of interest @12% per annum from the date of promised possession till the date of handing over physical possession (v) to pay Rs.25.00 lacs as the compensation for mental agony and physical harassment (vi) to pay Rs.5.00 lacs as the cost of the litigation and (vii) any other relief, which is deemed fit and proper in the fact and circumstances of case. At the time of arguments, the counsel for the complainants confined his arguments for refund of the entire money deposited by the complainants.

(3.) The facts, as stated in the complaint and emerged from the documents attached with it, are that the builder was a company and engaged in business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. The builder launched a project of group housing in the name of "Emerald Bay" at village Dhanwapur, Sectors-104, Gurgaon, Haryana. The representatives of the builder approached the complainants and impressed them by alluring and attractive promises. The complainants booked a flat on 28/1/2013 and gave a cheque of Rs.10.00 lacs. The builder allotted Flat No. A3-1001, (super built up area 2450 sq.ft., basic sale price Rs.17762500.00) on 28/2/2013. Along with allotment letter, 'Construction Linked Payment Plan' was supplied, in which total cost of Rs.23723496.00 was shown. The Apartment Buyer's Agreement was executed on 9/10/2013. The complainants had deposited total Rs.4609680.00 by that time. Although the terms of Apartment Buyer's Agreement were arbitrary, but the complainants had no option except to sign it. The complainants deposited Rs.1000000.00 on 28/1/2013, Rs.1600000.00 on 12/4/2013, Rs.157376.00 on 12/4/2013, Rs.500000.00 on 7/5/2013, Rs.400201.00 on 15/6/2013, Rs.442114.00 on 15/6/2013, Rs.500000.00on 5/7/2013, Rs.10000.00 on 24/7/2013, Rs.2375285.00 on 15/11/2013, Rs.2389546.00 on 7/11/2014 and Rs.2375488.00 on 20/1/2015 (total Rs.11750010.00). The complainants, through letter dtd. 22/6/2015, made some queries from the builder and also pointed out that some of the clauses of Apartment Buyer's Agreement were unfair. The complainants did not receive any reply of the letter dtd. 22/6/2015, therefore gave reminder dtd. 7/7/2015. Then the builder gave reply of some of the queries vide letter dtd. 30/7/2015. The complainant, vide letter dtd. 4/8/2015, sought for a meeting with the officers of the builder. The builder, vide email dtd. 6/8/2015 fixed 7/8/2015 for the meeting. During meeting no solution of the queries of the complainants was made. In respect of break up of 'super area', they were told that breakup of 'super area' would be shared through email but no information in this respect was given. The complainants then gave a legal notice dtd. 6/10/2015, raising their objections to the unfair, arbitrary and unlawful terms of the agreement. The builder, vide letter dtd. 18/11/2015, demanded entire outstanding dues within 30 days, failing which, allotment would be cancelled. The builder has illegally charged for car parking space and preferential location. Various terms of the agreement were unfair, arbitrary and opposed to public policy and void under Sec. 23 of Contract Act, 1872. The complainants filed Consumer Complaint No.1482 of 2015, which was dismissed as withdrawn by order dtd. 13/1/2016, with liberty to seek relief before appropriate forum. The complainant then filed an application under Sec. 9 of Arbitration and Conciliation Act, 1996, before District Judge, Gurgaon, which is still pending. The complainants through letter dtd. 12/5/2016, requested for conciliation in terms of clause-57 of the agreement. The complainants through letter dtd. 28/11/2016, requested for arbitration in terms of the agreement. But no reply of these letters was given. Then this complaint was filed on 14/11/2017, complaining unfair trade practice.