HARBANI BATRA Vs. ATHENA INFRASTRUCTURE LTD

JUDGEMENT

(1.) This is a complaint under Sec. 2 (1)(d) of the Consumer Protection Act, 1986 (in short, the 'Act') alleging deficiency in services in respect of 'non-delivery' of a flat booked by the Complainant with the Opposite party in the project 'Indiabulls Enigma-Gurgaon', promoted and developed by it.

(2.) The facts, in brief according to the Complainant, are that she had booked a residential flat on 6/9/2011 with the Opposite Party and was allotted apartment No.B-113, 11th Floor, 'India Bulls Enigma', Sector 110, Gurgaon 112001 for a sale consideration of Rs.1,76,85,000.00. Despite having paid a sum of Rs.1,88,98,252.00 as on date in various installments, the Opposite Party had not made any offer of possession of the said apartment to her. As per clause 21 of the Apartment Buyer Agreement (ABA) dtd. 29/5/2012, the apartment was promised to be completed in a period of 36 months with six months of grace period. The Complainant states that even after an expiry of this period on 1/7/2015 there is neither any offer of possession by the Opposite Party nor any sign of the completion of the said project. As she has been waiting for nearly eight years, for possession, she now does not seek possession and is before this Commission with the following prayer.

(3.) The complaint was resisted by way of written statement by the opposite Party. While denying the averments of the Complainant, the Opposite Party submitted that the complainant has failed to prove any deficiency in service by the Opposite Party. It is stated that the complainant is a defaulter and failed to pay outstanding dues of Rs.39,90,147.00 in three installments. Accordingly, a termination notice had to be issued. Since the complainant is a defaulter she is estopped from alleging delay in construction of flat and seeking compensation. As per clause 22 of the ABA, the opposite party is only required to pay as penalty a sum of Rs.5.00 per sq. ft. per month for the period of delay as compensation. Therefore, the complainant is not entitled to the relief of compensation as claimed. It is also submitted that the period of construction of three years with 6 months grace period was not a 'commitment' of date but only to be an endeavor' on part of the opposite party.