RESHU KANSAL Vs. RAHEJA DEVELOPERS LTD

JUDGEMENT

(1.) The present Consumer Complaint has been filed under Sec. 21 read with Sec. 12(1)(a) of the Consumer Protection Act, 1986 (for short "the Act") by Reshu Kansal and Nitin Gupta (hereinafter referred to as the Complainants) against Opposite Party, M/s. Raheja Developers Ltd. (hereinafter referred to as the Developer), seeking refund of the amount paid towards purchase of Apartment 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 "Raheja Revanta" located at Sector-78, 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 "Raheja Revanta" located at Sector-78, 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.1,33,07,623.00 by paying a booking amount of Rs.31,29,433.00 on 31/3/2014. Unit bearing No. B-063 in Surya Tower having super area of approx. 1621.39 sq. ft. was allotted to the Complainants vide allotment letter dtd. 31/3/2014. Agreement to Sell (hereinafter referred to as the Agreement) was also executed between the Parties on 31/3/2014. It was averred that although various clauses of the Agreement were arbitrary, unjust, one-sided and only in favour of the Opposite Party Developer yet they have to sign the Agreement under the threat of forfeiture of the earnest money. As per possession Clause 4.2 of the Agreement, the delivery of the possession was to be offered within 54 months (48 months + a grace period of 6 months) from the date of execution of the Agreement, i.e., by 30/9/2018. The Complainants after obtaining a housing loan of Rs.99,00,000.00 from Bank of Baroda, had deposited a total sum of Rs.1,17,09,564.00 (Rupees One Crore Seventeen Lacs Nine Thousand Five Hundred Sixty Four only) on different dates upto March 2015 as per demand of the Opposite Party Developer. Despite that the Opposite Party Developer miserably failed to deliver the possession of the Apartment within stipulated period. It is averred by the Complainants that they continued to follow up with the Opposite Party Developer through various correspondence, meeting and telephonic conversation with their representative but 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 OP 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 with the following prayer:

(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 mere real estate speculators and investors and have booked the Apartment in question, for investment as such they do not fall under the definition of 'Consumer' as defined under sec. 2(1)(d)(ii) of the Act, therefore, the Complaint is not maintainable. It was further stated that the terms of the Agreement are binding on both the Complainant and the Opposite Party. As per term 4.2 of the Agreement they are ready to pay delay compensation @7/- per sq. ft. but the Complainant did not accept the offer and filed the present Complaint in order to earn more profit. It was also stated that the relief claimed by the Complainant is beyond the scope of the terms of the Agreement. In support of his contentions, he relied upon judgments passed by the Hon'ble Supreme Court in 'Bhunaneshwar Development Authority vs. Susanta Kumar Mishra (2009) 4 SCC 684, United India Insurance Co. Ltd. vs. Harchand Rai chandan Lal (2004) 8 SCC 644 and Bharathi Knitting Co. v. DHL Worldwide Express Courier (1996) 4 SCC 704. It was also stated that the construction of the structure in the Tower in which the Complainant's Apartment is located is completed and as per RERA, Haryana the completion date of the Project is June, 2022. It was further stated that the delay in Project is due to force majeure conditions for which the OP Developer cannot be made to suffer as the Government Agencies miserably failed to provide essential basic infrastructure facilities such as Roads, Sewage line, Water and Electricity Supply in the sector where the Project is located, which resulted delay in Project. It was also submitted that they have deposited the requisite External Development Charges to the Government Agencies despite that the concerned authorities did not develop necessary infrastructure facilities like 60 meter sector roads including 24 meter wide road connectivity. It was also submitted that the delay in construction is due to the reasons which were beyond the control of the Developer, therefore, there is no Deficiency in Service or Unfair Trade Practice on their part. It was prayed that the Consumer Complaint be dismissed.