RAJ KUMAR GUPTA Vs. EMAAR MGF LAND LIMITED

JUDGEMENT

(1.) This is a complaint under sec. 12 (1) (a) of the Consumer Protection Act, 1986 filed by the complainants alleging deficiency in service and unfair trade practice in respect of the flat booked by them in the project 'Palm Gardens', Sector, 83, Gurugram, Haryana, promoted and developed by the opposite party M/s Emaar MGF Land Limited.

(2.) In brief, the facts of the case are that the complainants had booked a flat in the above said project of the opposite party on 10/12/2010 by paying an amount of Rs.7,50,000.00. Vide allotment letter dtd. 24/1/2011, complainants were allotted flat no. PGN 05 - 0504, 5 th floor, Tower 5, with super area of 1720 sq ft. A Builder Buyer Agreement was executed on 30/3/2011 for a total sale consideration of Rs.91,63,574.00. Vide clause 10 (a) of this argument delivery of the possession was to be offered to the complainants by the OP within 36 months with a grace period of six months from the date of start of the construction. The construction of the tower was commenced in August 2012 and therefore, the possession was to be offered by November 2015. It is averred by the complainants that between 2011-2015 a sum of Rs.91,68,785.00 was paid by them to the opposite party on various dates as and when demanded. However, in November 2015 the possession was not offered by the opposite party despite having complied with various demands for payment that were raised by the opposite party between 2016-2018. On 20/3/2018 an offer of possession was made by the opposite party. The final payment was made by the complainants in April 2018 and possession of the said apartment was taken by them between May and November 2018. In November 2018, the conveyance deed was executed by the opposite party in favour of the complainants, six months after the offer of possession. The opposite party has not, however, paid any compensation to the complainants for the delay in handing over the possession except an amount of Rs.2,78,640.00 @ Rs.7.50 sq ft per month, as per the compensation clause in the agreement which was adjusted against the amount to be paid by the complainants in the final demand for payment. The complainants have alleged that although time was of essence under the Builder Buyer Agreement, the opposite party had delayed the project beyond the agreed period of 36 months and six months grace period as promised in the said Agreement and had, through unfair trade practice, altered the plans and demanded additional payments such as Rs.3.00 lakh for covered parking. The delay in execution of the conveyance deed caused the complainants to pay an additional amount for registration which the State Government of Haryana increased from Rs.15,000.00 to Rs.40,000.00 in October 2018. On account of the delay and consequential financial loss the complainants are before this Commission with the following prayer:

(3.) The opposite party has resisted the complaint by way of reply and affidavit and contended that the complainants were defaulters in payment on several occasions and there was no commitment of 36 months and grace period of six months for the construction of the said apartment. He has also contended that the delays were caused on account of delay by the main contractor, i.e., IL&FS in execution of the project. He has also contended that the complainants had booked the flat in question for speculating in real estate and that they were not "consumers" as they had already executed the conveyance deed. He has also relied upon the judgment of the Hon'ble Supreme Court in Ghaziabad Development Authority vs Balbir Singh in Appeal no. 7173 of 2002 decided on 17/3/2004 - (2004) 5 SCC 65 wherein it has been held that prayer for refund of tax was beyond the scope of NCDRC. It has also been argued that since the compensation claimed does not exceed Rs.1.00 crore, the complaint is filed without pecuniary jurisdiction before this Commission and is liable to be dismissed.