SUJEET JHA Vs. IREO PVT. LTD.

JUDGEMENT

(1.) This complaint under Sec. 21 read with Sec. 2(G) and 2(R) of the Consumer Protection Act, 1986 (in short, the 'Act') has been filed against the opposite party alleging deficiency in service and unfair trade practice in delay in handing over possession of a residential flat booked by him in a project of the opposite party.

(2.) The brief facts, as per the complainant, are that one Ms. Monica Sachdeva had booked flat no. B-09-41, Ninth Floor, Tower-8 admeasuring 6388 sq ft in the opposite party's project 'Gurgaon Hills' on 3/7/2012 and as per the Apartment Buyer's Agreement (in short, 'the Agreement') dtd. 21/11/2012 the apartment was to be delivered within 42 months with 6 month grace period (180 days) of the approval of the building plans, on or before 17/11/2015. The sale consideration was Rs.5,72,17,193.00. The apartment was transferred in the name of the complainant on 1/12/2012 and the opposite party confirmed assignment of rights on 7/2/2013. The complainants have paid a sum of Rs.6,16,98,948.00 till date including additional preferential location charges (PLC) Rs.211,70,256.00 for change of apartment to B-18-42. According to the complainant, the 14th demand due on filing for occupation certificate (OC) was raised by the opposite party on 26/9/2018, a month in advance; however, no proof of the application was provided on enquiry since the project was incomplete. As the building plans were approved on 17/5/2012, according to the complainant, the period of 42 months expired on 17/11/2015. Alleging that the cause of action arose on 17/11/2015, the date of handing over of possession as per the Agreement, and in September 2018 when the 14th demand was raised, the complainant is before this Commission with the prayer to pass an order:

(3.) The complaint was contested by the opposite party by way of a written statement. It was stated that the complaint was barred by limitation since the complaint was filed in July 2020 whereas the relief sought related to a cause of action that arose more than 2 years prior. It is contended that the commitment period for the possession of the flat was 60 months since it was 42 months from the date of approval of building plans and/or fulfillment of preconditions thereunder with a grace period of 6 months and a further extended delayed period of 12 months from the end of the grace period as per clause 14 of the Agreement. It is contended that since building approval was dtd. 17/5/2012 and one of the pre-conditions was the Fire Scheme Approval which was granted on 26/12/2013, the proposed date of handing over of possession should be computed from 26/12/2013 and therefore the 60 months period expires on 25/12/2018. Opposite party relies upon the judgment of Hon'ble Supreme Court in IREO Grace Realtech (P) Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 which held that the date of handing over possession be calculated from the date of Fire Scheme Approval. It is also submitted that though this approval was applied for on 7/8/2012 the same was received only on 26/12/2013 due to height of 3 of the 4 towers in the project exceeding 100 meters for which guidelines were not available and this constituted a force majeure reason as the delay was due to the government authorities. It is also stated that the Occupation Certificate, though applied for on 24/9/2018, was delayed due to defaults by the complainant in contravention of clause 13 of the Agreement. According to the opposite party, the complainant was permitted to undertake interior and furnishing works on 3/10/2016. However, he failed to complete the same within the stipulated period of 9 months and was, therefore, in violation of contractual obligations. It is submitted that the Director of Town and Country Planning (DTCP) to whom the application for the OC was made, had, vide letter dtd. 14/2/2019, stated that the interior works of the apartments were not completed. It is contended that the opposite party was only required to construct the apartments as a bare shell and that it was the responsibility of the respective allottees to customize and finish the interiors, including the walls, etc. as per Annexure I of the Agreement for which no drawings were also submitted by the complainant. It is argued that the complainants cannot be permitted to take advantage of their own wrongs. It is also contended that there was default in payment of instalments by allottees which delayed the project and that the opposite party was not required to spend its money to get an occupation certificate which was the complainants' obligation to fulfill. It is also stated that clause 13.3 of the Agreement stipulates that the complainant was liable to pay a penalty @ Rs.25.00 per sq ft for the first 3 months, Rs.40.00 per sq ft for the next 3 months and Rs.50.00 for 6 to 12 months after which the opposite party was entitled to cancel the allotment and terminate the contract. However, the opposite party did not penalize the complainant and completed the unit on its own. The complainant being a defaulter under the Agreement cannot claim to seek performance on part of the opposite party as also provided under Sec. 51 of the Contract Act. Reliance is placed on the judgment of the Hon'ble Supreme Court in Bharathi Knitting Co. Vs. DHL Worldwide Express Courier (1996) 4 SCC 704 that laid down that parties are bound by the terms of the agreement. The complainant is stated to not be a 'consumer' under Sec. 2(1)(d) of the Act as he had made multiple investments and as per Hon'ble Supreme Court's judgment in Morgan Stanley Mutual Fund Vs. Kartick Das (1994) 4 SCC 225 was a prospective buyer, and therefore, not a consumer. It is denied that any service is provided or agreed to be provided to the complainant by the opposite party and, therefore, the opposite party seeks to be covered under the judgment of the Hon'ble Supreme Court in Bangalore Development Authority Vs. Syndicate Bank (2007) 6 SCC 711. The complaint is alleged to be vexatious and without jurisdiction.