DR. NISHI PATNI Vs. EMAAR MGF LAND LIMITED

JUDGEMENT

(1.) The present Consumer Complaint has been filed under Sec. 12(1)(a) read with Sec. 21 of the Consumer Protection Act, 1986 (for short "the Act") by Dr. Nidhi Patni and Dr. Sanjeev Kumar Patni (hereinafter referred to as the Complainants) against Opposite Party, M/s. Emaar MGF Land Limited (hereinafter referred to as the Developer), seeking refund of the amount paid towards purchase of Flat alongwith interest, compensation and costs as the Opposite Party Developer failed to hand-over the possession of the Apartment booked by them in the Project launched by the Developer in the name and style of "Palm Gardens" located at Sector-83, Gurgaon, Haryana.

(2.) Brief facts of the case as narrated in the Complaint are that the Opposite Party Developer launched a Residential Project in the name and style of "Palm Gardens" located at Sector-83, Gurgaon, Haryana (hereinafter referred to as the Project). The Complainants booked an Apartment for residential purpose in the said Project for a total sale consideration of Rs.1,00,45,319.00 in late 2011. Unit bearing No. PGN-09-12A03 at 12th Floor, Tower No. 09 having super area of approx. 1900 sq. ft. was provisionally allotted to the Complainants. Builder Buyer Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 24/11/2011. The construction of the Project as per the Statement of Accounts, started on 9/8/2012. As per Clause 10(a) of the Agreement, the delivery of the possession was to be offered within 36 months with a grace period of 3 months from the date of the start of the construction. It is averred by the Complainants that as per terms of the Agreement, the expected date of delivery of possession of the Apartment was 9/11/2015. The Complainants had deposited Rs.94,83,640.00 (Rupees Ninety Four Lacs Eighty Three Thousand Six Hundred Forty only) on different dates as per demand of the Opposite Party Developer. Despite that the Opposite Party Developer miserably failed to deliver the possession of the Flat within stipulated period. The slow pace of the construction clearly suggests that the possession of the Apartment alongwith the promised layout, amenities and specifications including the greens etc, will not be probable in the near future. It is also averred in the Complaint that the Opposite Party Developer has charged several unwarranted taxes and charges. It is further averred that whenever the Complainant raised query for actual date of possession, the Opposite Party Developer without assigning any reason for the delay, kept postponing the delivery date of the said Project on one pretext or the other. Seeing the conduct of the Opposite Party Developer, they have no trust on the Opposite Party Developer and are no longer interested in having possession of the Apartment. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainants have filed the present Consumer Complaint seeking following reliefs:-

(3.) The Complaint was resisted by the Opposite Party Developer by filing its Written Statement in which the Opposite Party Developer submitted that the Complainants are permanent residents of Jaipur, Rajasthan and had apparently booked the Unit in question for commercial purpose to reap the financial benefit, thus does not fall within the ambit of a 'consumer'; there is Arbitration clause in the Agreement, therefore, the case is liable to be referred to the arbitration. It was also stated that the development work got slowed as the Opposite Party Developer Company has undergone re-structuring; several allottees defaulted/delayed in making payment which hampered availability of funds resulting in slowed down of development work; the Contractor was also liable for the delay as it did not complete the work in time-bound manner.