SUSHILA DHAON Vs. EMAAR MGF LATN LTD

JUDGEMENT

(1.) This complaint is filed u/s 21(a)(i) of the Consumer Protection Act, 1986 seeking refund of the amount paid towards the sale consideration of Flat No. PGN-11-0005 admeasuring 1900 sq.ft. in the project Palm Gardens, Sector 83, Gurgaon of the Opposite Party on grounds of deficiency in service and unfair trade practice in not offering possession of the flat despite the receipt of several instalments of payment under a construction linked payment plan.

(2.) In brief, the facts are that the complainants had booked the above flat on 27/2/2014 and a Builder Buyers' Agreement (in short, agreement) was signed on 28/3/2014 for a sale consideration of Rs.1,80,85,816.00. As per Clause 10(a) of the Agreement, the Opposite Party was required to give possession within 36 months with a grace period of six months of the date of agreement, i.e., by 28/6/2017. The complainants have averred that they have paid Rs.69,58,274.00 in various instalments as on date. It is averred by the complainants that the agreement was a prepared document by the Opposite Party and that even though it had several one-sided and arbitrary clauses they had no option but to sign the same in view of the fact that a substantial amount had already been deposited with the Opposite Party. In view of the inordinate delay in handing over possession of the flat they have made several efforts to obtain a refund with compensation from the Opposite Party and having failed to do so they are now before us seeking the following reliefs:-

(3.) The Opposite Party has contested the complaint on the grounds that the agreement had a specific provision for compensation in clause 12(a) in case of delay and that the complainants had been the defaulters and were yet to pay a sum of Rs.1,14,05,015.00 including an amount of Rs.34,28,676.00 towards delayed payment charges. It is contended that the delay due to default by the construction company. However, an occupancy certificate dtd. 17/10/2019 was now available and an offer of possession had been made to the Complainants on 19/10/2019. It is contended that in view of the offer of possession the allottees are obliged to take over possession in view of the principle laid down by the Hon'ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors., I (2021)CPJ 60 (SC) and that as defaulters the Complainants were not entitled to equitable reliefs. It is also contended that as per the judgment passed in DLF Homes Panchkula Private Limited Vs. D.S. Dhandha and Ors., (2020) 16 SCC 318, the Hon'ble Supreme Court has held that when interest is awarded by way of damages, awarding additional compensation is unjustified. Award of compensation under different heads on account of singular default of not handing over possession under various heads is not sustainable.