NAVIN PRAKASH Vs. EMAAR MGF LAND LIMITED

JUDGEMENT

(1.) This Complaint has been filed u/s 21 read with sec. 12 (1) (a) of the Consumer Protection Act, 1986 (the Act, in short) seeking relief on grounds of alleged deficiency in service and unfair trade practices by the Opposite Party who is the promoter and developer of the project Emerald Floors Select (B), Sector 65, Gurgaon.

(2.) The facts in brief as averred by the Complainants are that they had booked an apartment in the above project and were allotted a unit EFS-B-C-FF-061 vide allotment letter dtd. 28/1/2012. A Buyer's Agreement was executed between the parties on 13/3/2012 for a total sale consideration of Rs.1,74,74,475.00 (Rupees one crore seventy four lacs seventy four thousand four hundred and seventy five). A sum of Rs.90,55,835.00 (Rupees ninety lacs fifty five thousand eight hundred and thirty five) amounting to 49% of the total cost has been paid by the Complainants till date. However, as per Clause 13 of the buyer's agreement, the Opposite Party has failed to provide possession within the commitment period of 24 months and a further with the three months' grace period. The delay of more than four years in handing over possession even after receiving 49% of the sale consideration is alleged by the Complainants to be a deficiency in service and unfair trade practice. The Complainants are, therefore, before this Commission with the following prayer:-

(3.) The Opposite Party in its reply has contested the contentions of the Complainants on preliminary grounds as well as on merits. It has been contended that the Complainants are not "consumers" and the complaint does not lie in view of sec. 74 of the Indian Contract Act, whereby a dispute under the Buyers' Agreement needs to be contested in the appropriate Civil Court. Allegations of deficiency in service and unfair trade practice are denied and it is claimed that the delay is squarely covered under Clauses 13, 19 and 30 of the buyer's agreement on the grounds of force majeure. It has been argued on the basis of the judgment of Hon'ble Supreme Court in Chief Administrator, HUDA and Anr. Vs. Shakuntala Devi in Civil Appeal No. 7335 of 2008, relief under the Act, under Sec. 14 (i) (d) is only for any loss due to the negligence of the Respondent which has not been established by the Complainant. Opposite Party has also relied upon the orders of this Commission in Lakshmi Cotton Traders Ltd. Vs. CWC 3 (1996)CPJ 22 and the judgment of the Hon'ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh JT 2004 (5) SC 73 on the quantum and rationale for compensation and the correlation of compensation with the extent of loss or injury. The Opposite Party has also relied upon the judgments of the Hon'ble Supreme Court in Secretary Bhubaneshwar Development Authority Vs. Susanta Kumar Mishra IV (2009) SLT 242, in PUDA (Chief Administrar and Another Vs. Mrs. Shabnam Virk -II (2006) CPJ 1 (SC) and Bharati Knitting Company Vs. DHL Worldwide Express Courier Division of Airfrieght Ltd.- II (1996) CPJ 25 (SC), that the parties are bound by the terms of the Agreement. On merits it is argued that the Complainants are not "Consumers" being residents of England and that the Opposite Party has not promised any services beyond those explicitly mentioned in the Buyer's Agreement. The promise of handing over possession within 24 months with a grace period of three months has to be read with the force majeure clause in the said Agreement. Unfair trade practice is denied on the grounds that the agreement was signed voluntarily.