NANITA CHOPRA Vs. ATHENA INFRASTRUCTURE LTD

JUDGEMENT

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

(2.) In brief, the facts of the case are that the complainant had booked a residential flat in the project 'Indiabulls Enigma', Sector 110, Gurgaon, Haryana being developed and executed by the opposite party on 2/12/2011 by paying a booking amount of Rs.5,00,000.00. On 15/2/2012 he was provisionally allotted a 4 BHK plus servant quarter unit, number 112, 11th floor in Block B by the opposite party for a sale consideration of Rs.1,89,40,251.00 inclusive of all charges. A Flat Buyer's Agreement (in short, 'Agreement') was signed between the complainant and the opposite party on 16/2/2012 and as per the Agreement possession was promised after 3 years with a grace period of 6 months i.e. by 16/8/2015 which the opposite party has failed to do despite payment of Rs.1,79,60,139.00 or nearly 95% as on 16/2/2012 by the complainant. The complainant had opted for the construction linked plan which included a loan @11.5% rate of interest from Indiabulls. As on 1/5/2017, the date of filing of this complaint, there is no occupancy certificate or offer of possession in respect of the said apartment. It is averred by the complainant that at the time when the Agreement was executed after booking of the apartment, the complainant had already paid Rs.1,79,60,139.00 and he was therefore not in a position to contest the one sided agreement loaded in favour of the opposite party since it included a clause that 15% of the amount would be forfeited in case of cancellation as Earnest Money. Such a one-sided Agreement which was executed under compulsion is an example of unfair trade practice. It is also averred that though clause 21 of the Agreement promised construction in 42 months, the opposite party did not have a licence as on the date of accepting the booking which was not disclosed and was therefore constitutes an unfair trade practice. Despite the promised handover of the apartment in August 2015, there was no progress and several efforts were made by the complainants between September 2015 and December 2016 with the opposite party to expedite possession which were of no avail. He is therefore before us with the following prayer:

(3.) The opposite party has resisted the complaint by way of reply and written statement. The opposite party has taken preliminary objections to the complaint on the grounds that complainant is not a 'consumer' within the definition of sec. 2(1)(d)(ii) of the Act as they are residents of Pune and has invested in the subject flat for speculative purposes; that this Commission lacks jurisdiction in view of the Agreement providing for arbitration and that there has been no deficiency in service as the project. Unfair trade practice is also denied. The averments of the complainant have been denied and it has been contended that the complainant is not entitled to claim refund of her deposit with compensation as per clause 19 of the agreement. It is submitted that the complainant opted for the ADF scheme which required deposit of 95% of the sale consideration within 90 days of booking. Reliance has been placed on Jagmittar Sain Bhagat Vs. Director, Health Services, Haryana and Ors in (2013) SC 0 703 dtd. 11/7/2013, Madan Kumar Singh (D) thr LR Vs. District Magistrate, Sultanpur and Ors. (2009) SC 1407 dtd. 7/8/2009 and Morgan Stanley Mutual Fund Vs. Kartick Das (1994) 4 SCC 225. It is contended that the complainants are not entitled to compensation or relief since they are defaulters in terms of Bangalore Development Authority Vs. Syndicate Bank (2007) 6 SCC 711 and that the parties are bound by the terms of the contract as per Bharathi Knitting Company Vs. DHL Worldwide Express Courier in (1996) 4 SCC 704 dtd. 9/5/1996 wherein it was held that an agreement between parties was binding and could not be described as being one-sided. It has been submitted that the work on the project is in full swing and some delay has occurred due to construction of additional floors.