ACHLA BANSAL Vs. EMAAR MGF LAND LIMITED

JUDGEMENT

(1.) This consumer complaint under Sec. 21 of the Consumer Protection Act, 1986 (in short, the 'Act') is filed against the opposite party alleging deficiency in not handing over possession of the flat booked by the complainants within the promised time and seeking compensation for the delay in handing over of possession along with interest as compensation and other costs.

(2.) The facts, according to the complainant, are that in September 2008 the complainants had booked a flat in 'The Meadows', a project promoted by the opposite party in Sector 76, Gurgaon and were allotted flat no A-302 admeasuring 2445 sq ft. for a sale consideration of Rs.85,40,505.00 and a Buyer's Agreement was signed on 8/12/2008. Possession was promised by January 2012 with grace period of 90 days for obtaining Occupation Certificate. The project did not take off for various reasons. Hence, opposite party 1 offered a transfer to its project 'The Enclave' at another location on the same terms and conditions which was agreed to by complainants. Unit no. P-1801 was allotted and possession was indicated vide clause 19 of the application form to be within 36 months. However, vide letter dtd. 3/7/2009 the opposite party 1 confirmed that date of possession would be January 2012 as in the previous booking. On 8/7/2010 a Buyer's Agreement was executed whereby Unit No. TEN-P-F12-01 on 12th Floor, Tower P with super area 2415 sq ft was allotted at a sale consideration of Rs.83,25,258.00. Payment was to be as per a Construction Linked Payment Plan and possession was reaffirmed vide clause 14(a) to be within 24 months from commencement with timely payments being the essence of the contract. The complainants paid Rs.91,82,219.00 in various instalments as on 7/5/2018. However, possession was delayed till 14/3/2018 when offer of possession was made by opposite party 1. The opposite party failed to provide compensation for delay of Rs.5.00 per sq ft per month as per clause 16(a). Possession was offered on 14/3/2018. The complainants are before this Commission praying for directions to the opposite party to:

(3.) Upon notice, the opposite parties resisted the complaint by way of a written statement and denied all averments of the complainant. Preliminary objections were taken by opposite party 1 that (i) the compliant did not lie in view of the indemnity cum undertaking dtd. 3/5/2018 executed by the complainants in favour of the opposite party; (ii) complainants were not 'consumers' under Sec. 2(1)(d)(ii) of the Act as they were permanent residents of Delhi and had booked the property for commercial purpose; (iii) the issues raised by the complainant needed adjudication in a civil court; (iv) interest claimed @24% p.a. was beyond the terms of Sec. 74 of the Indian Contract Act since clause 16(a) of the Buyer's Agreement provided for compensation @ Rs.5.00 per sq ft per month; (v) possession had already been handed over and hence the complaint needed to be dismissed; (vi) clause 14(a) of the Buyer's Agreement had been misinterpreted with regard to 24 months of construction period with 3 months grace since this was to be read conjointly with other provisions for force majeure; (vii) the terms of the contract in the Buyer's Agreement could not be altered as held by the Hon'ble Supreme Court in a catena of cases; (viii) Sec. 14(1)(d) of the Act provided for compensation only due to the negligence of the opposite party which was not proven in this case; (ix) that compensation had to be on a rational basis and equivalent to the loss suffered as held by the Supreme Court; (x) in view of Sec. 74 of the Indian Contract Act providing for liquidated damages, compensation cannot be claimed; (xi) clause 37 of the Buyer's Agreement provides for arbitration in matters of dispute. On merits, it was contended that the complainants had approached the opposite party and there were no false inducements or with a view to extort money. It is admitted that there has been a delay in the project which is attributable to force majeure conditions. The amount stated to have been charged in excess by it has been justified since it comprised taxes which were statutory dues and were required to be paid by the complainant. The complaint is stated to be barred under limitation under Sec. 24A of the Act and does not meet the pecuniary jurisdiction of this Commission and therefore not maintainable.