NUPUR BANSAL Vs. IREO GRACE REALTECH PVT. LTD

JUDGEMENT

(1.) This complaint is filed u/s 21 of the Consumer Protection Act, 1986 by the complainants seeking refund of the amount deposited along with penal interest and other compensation in respect of the flat booked by them with the opposite parties in their project promoted and developed by the opposite parties, alleging deficiency in service and unfair trade practice on account of the delay in handing over possession of the flat.

(2.) Briefly, the facts are that the complainants had booked a flat in a project promoted and developed by the Opposite parties viz., "The Corridors", Golf Course Extension Road, Sector 67 A, Gurgaon, Haryana on 11/3/2013 for their residential purpose. An allotment letter was issued by the opposite party to the complainants on 7/8/2013 allotting flat no. A5-09-902 in Tower A5, admeasuring 1966.61 sq ft in the above said project for a total sale consideration of Rs.2,15,24,609.98. The complainants deposited Rs.1,96,86,977.86 towards this flat by way of 24 instalments between 11/3/2013 and 15/1/2018. An Apartment Buyers Agreement (in short "the ABA") was entered into between the complainants and the opposite party on 9/4/2014. As per clause 13.3 of the ABA, the opposite party committed to offer possession of the flat within 42 months with an additional grace period of 180 days from the date of building plan approval, which was obtained on 23/7/2013, with a further extended delay period of 12 months from the expiry of grace period, under clause 13.5 of ABA, i.e., on or by 23/7/2018, failing which compensation at the rate of Rs.7.50 per sq foot was promised by the opposite party to the complainant. The complainant raised certain objections that the agreement was entirely one-sided and arbitrary, terms of which were not acceptable. However, no substantive reply was received from the opposite party who refused to change/modify the terms of ABA. Apartment no.A5-09-902 was allotted to Smt Santosh Bansal, Ms Nupur Bansal and Mr Amrit Lal Bansal. Smt Santosh Bansal and Mr Sandeep Bansal were also allottees of another apartment no.C9-09-902 in the same project. Due to the demise of Smt Santosh Bansal in January 2015, Sandeep Bansal sought cancellation of apartment no.C9-09-902. However, instead of refunding the amount in respect of this apartment, the OP vide letter dtd. 8/9/2015 adjusted Rs.44,02,493.00 received by it towards part payment of apartment no.A5-09-902. The complainant has approached this Commission alleging deficiency in service and unfair trade practice in imposing entirely one sided conditions in the ABA that are in favour of the opposite party which the complainants as consumers were unable to contest. The complainants have sought full refund of the deposited amount and other reliefs as per the following prayer:

(3.) The opposite party has contested the complaint by way of reply and evidence by way of affidavit. It is contended by him that the complaint was premature as the period of 48 months needs to be calculated with effect from 27/11/2014, the date on which the fire safety scheme was approved. He further states that this Commission has no jurisdiction under the CP Act, 1986 to amend/ modify/ re-write the terms of the agreement. It is contended that the allegations in the complaint are of a contractual nature and as such triable only in a civil court. It is also contended that the complainant is not a "consumer" since he had booked the flat for speculative gains. It has been submitted that under the CP Act 1986 compensation can only be as per Sec. 14 (1) (d) of the CP Act 1986, and that this sec. is not attracted in this case. The OP's case is also that the ABA related to an agreement to sell an apartment by the OP and no "service" was to be rendered within the meaning of Sec. 2 (1) (o) of C P Act, 1986 to the complainant. Therefore, there was no deficiency in service involved.