PODDAR INFRATECH PVT. LTD Vs. IMPERIA STRUCTURES LTD

JUDGEMENT

(1.) This Complaint under Sec. 21(a)(i) of the Consumer Protection Act, 1986 (for short 'the Act') has been filed by the Complainant Company alleging deficiency in service and unfair trade practice in the delay of handing over of possession of a flat booked by the Complainant Company for the use of its Directors, as per the agreed date of handing over, in the project of the Opposite Party, the ESFERA, Sector 37-C, Gurgaon, Haryana.

(2.) The facts, in brief, are that the Complainant had booked two apartments in the abovementioned project of the Opposite Party and had been allotted Unit No.101, First Floor, Block-C, vide Application dtd. 22/9/2011, admeasuring 1650 sq.ft. for a sale consideration of ?74,45,000/-. As per the Builder Buyer Agreement (BBA), dtd. 11/2/2013, the Opposite Party promised to hand over the possession within 42 months from the date of execution of the Agreement, i.e. by 11/8/2016 (Clause 10.1). The Complainant Company is engaged in the business of infrastructure development and had resolved by way of a Board Resolution to purchase the said flats of the use of its Directors based in Gurgaon. An amount of ?73,35,800/- was paid by the Complainant to the Opposite Party, as per the demands raised from time to time. As per Clause 11.4 of the BBA, the Opposite Party had agreed to compensate the Complainant @ ?5/- per sq. ft. for the period of delay which works out to approximately 1.4% p.a. rate of interest. The Complainant avers that the BBA was a onesided document drafted by the Opposite Party which includes onerous conditions imposed on the Complainant which Complainant had no option but to sign. The Opposite Party is alleged to have failed in its contractual obligation of handing over the possession within the stipulated period without providing any reason for delay despite repeated requests and reminders. Therefore, alleging deficiency in service, the Complainant is before this Commission in view of the inordinate delay in completing the project, which is found to be lying incomplete, with the following prayers:

(3.) Upon notice, the Complaint was resisted by way of a reply by the Opposite Party denying all the contentions of the Complainant. Preliminary objections taken by the Opposite Party were (i) the Complaint was misconceived and the jurisdiction of this Commission was invoked in respect of a purely commercial transaction; (ii) the Complainant was not a 'Consumer' under the purview of Sec. 2 (1) (d) of the Act since the Complainant was a profit earning Company; (iii) the project consists of two phases of which Phase-I comprising Towers F, G and H had been completed and the Occupancy Certificate applied for on 20/6/2017 was received on 7/2/2018 and construction in Phase-II was underway; (iv) the BBA was signed on 11/2/2011 by the Complainant after conducting due diligence and it was, therefore, estopped from raising objections to it at this stage; (v) there was no delay attributable to the Opposite Party in completing the construction and handing over of the Unit booked and any delay was due to force majeure conditions such as delay in statutory clearances from the Authorities, lack of availability of raw material, labour strikes, ban on construction activities, delay in obtaining clearances for water supply due to restrictions by the High Court of Punjab and Haryana in Writ Petition No.20032 of 2008 and the order dtd. 13/9/2013 of the Town and Country Planning Department, Government of Haryana, which were all reasons that were not under the control of the Opposite Party. It was further contended that this Complaint was not maintainable before this Commission in view of the Ss. 79 and 89 of the RERA Act, 2016 which is a specialized statute dealing with Real Estate allottees and purchasers.