AREESH KHAN Vs. RAMPRASTHA PROMOTERS AND DEVELOPERS

JUDGEMENT

(1.) This complaint has been filed under sec. 21 of the Consumer Protection Act, 1986 (in short, the 'Act') alleging deficiency in services and unfair trade practice in respect of the apartment booked by the complainants with the opposite party.

(2.) In brief the facts of the case are that the complainants had booked a flat in the project 'RISE' Group Housing Complex, village Gadauli Kala, Gurugram, Haryana being developed by the opposite party on 11/8/2012 on the payment of Rs.17,54,996.00. A three BHK apartment no. 1201 on the 12th floor, Tower/Block D admeasuring 1825 sq ft was provisionally allotted by the opposite party for a sale consideration of Rs.84,32,922.00. A Builder Buyer's Agreement (in short, BBA) was signed between the parties incorporating a construction linked payment plan and as per clause 15 of the BBA possession was promised to be delivered by September 2015 months, with a grace period of 4 months. A sum of Rs.66,99,615.00 was deposited with the opposite party by the complainants over a period of time. As the opposite party failed to hand over the possession of the flat as promised even after two and a half years, the complainants are before us with the following prayer:

(3.) The opposite party has resisted the complaint by way of reply. The averments of the complainant have been denied and it has been contended that as per clauses 15(b) and 31 of the Apartment Buyer's Agreement (in short, the 'ABA') dtd. 11/8/2012 there were force majeure conditions that allow for the automatic extension of the date of possession. Accordingly, complainants had agreed to compensation under clause 17 after a further extension of 4 months. It is contended that time was not of the essence in the ABA for delivery except with regard to the allottee's obligations to pay the sale price and therefore there has been no deficiency in service. In view of the delays in various approvals for the project, shortage of labour due to other government schemes and restraining orders of the High Court for use of only treated sewage water for construction, the opposite party claims that force majeure applies and that it is entitled to relief. It is contended that the appreciation in the price of the flat and the Apex Court's judgement in Ghaziabad Development Authority Vs Balbir Singh 2004 (5) SCC 65 the claim of interest @24% is exorbitant. He has also relied upon Bharathi Knitting Co Vs DHL Worldwide Express Courier Division of Airfreight Ltd AIR 1996 SC 2508 and Secretary, Bhubaneswar Development Authority Vs Susanta Kumar Mishra V (2009) SLT 242 that the terms of the ABA cannot be altered. It is contended that the complainants are not 'consumers' under sec. 2(i) (d) of the Act and that in view of the provision of arbitration the complaint is liable to be dismissed. It is further contended that the complaint does not lie on grounds of pecuniary jurisdiction.