SUGANTHI MURALI Vs. LANDMARK APARTMENTS PVT. LTD.

JUDGEMENT

(1.) This Complaint under Sec. 21 of the Consumer Protection Act, 1986 (for short 'the Act') alleges deficiency in service and unfair trade practice on the part of the Opposite Party in failing to hand over possession of the commercial space booked by the Complainant in the project promoted by Opposite Party for her personal use in order to earn her livelihood.

(2.) The facts, in brief, are that in June 2008, the Complainant, who is a freelance marketing professional, booked a commercial space admeasuring 1000 sq.ft. in Landmark Cyber Park in Sector 67, Gurgaon, Haryana for a sale consideration of ?39 Lakhs from the Opposite Party. The complete down payment of ?39 Lakhs was made by the Complainant to the Opposite Party and a Memo of Understanding (MOU) was executed on 14/2/2008 as per which the possession was to be handed over after 36 months. During this period, the Opposite Party was required to pay the Complainant an amount of ?49/- per sq.ft. per month (Clause 4) for three years or upto the first leasing. It was also agreed between the parties that in case of non-completion of the project, the Opposite Party would reimburse the entire principal amount with bank interest @ 18% p.a. (Clause 11). The Complainant contends that possession was not handed over as promised and therefore, a Legal Notice dtd. 11/10/2017 was issued to the Opposite Party which was not replied to. The Complainant is before this Commission with the following prayers:

(3.) The Complaint was resisted by way of reply by the Opposite Party who denies the averments made in the Complaint and took the preliminary objection that the Complaint was not maintainable as the Complainant was not a consumer under Sec. 2(1)(d) of the Act since the commercial space had been booked for investment purpose. On merits, it was stated that an offer of possession had been made vide letter dtd. 11/6/2015 which had not been acted upon by the Complainant. It was contended that it had paid the monthly amount @ ?49/- per sq. ft. in installments of ?1,31,859/- on various dates between May 2008 to May 2013 out of ?27,74,772/- and that only ?11,02,500/- was pending to be paid for the period August 2013 to June 2015. However, the Complainant was due to pay to the Opposite Party development charges, FAC and IFMS charges amounting to ?8,54,900/-. The Occupation Certificate (OC) had been obtained from the Director, Town and Country Planning Department (DTCP) for the building on 26/12/2018. It was also stated that a Memo of Settlement between the parties had been signed on 27/7/2019 whereby the Opposite Party had agreed to allot another commercial space admeasuring 1350 sq.ft. in lieu of the originally allotted space of 1000 sq.ft. and that the said agreement recorded that the possession of this space was deemed to have been handed over in terms of the Settlement Agreement. Therefore, it was argued that the MOU dtd. 14/2/2008 stood novated by this document on 27/7/2019 and hence the claim of refund with interest @ 18% as per Clause 11 of the MOU did not arise. It was accordingly prayed that the Complaint be dismissed.