STELLAR CONSTELLATION PROJECTS PVT. LTD Vs. RAJESH GARG

JUDGEMENT

(1.) This Revision Petition has been filed by the Petitioner/ Opposite Party against the Respondent/ Complainant challenging the impugned Order dtd. 7/1/2020 passed by the State Consumer Disputes Redressal Commission, U.P., Lucknow, in Appeal No.1349 of 2019. Vide such order, the State Commission partially allowed the Appeal at the stage of admission while amending the Order dtd. 30/9/2019 passed by the District Consumer Disputes Redressal Forum, Gautam Buddh Nagar, U.P., in Complaint Case No. 38/2017.

(2.) The brief facts of the case are that the Complainant and his wife, Mrs. Kavisha Garg had applied for a residential Flat for personal use with the Opposite Party. It was the case of the Complainant that he along with his wife had executed an Agreement with the Opposite Party on 4/9/2013 for a residential 3 BHK + Store Unit No. T-801 on the 8th Floor in Tower - T in Group Housing Project known as 'Stellar Jeevan' having a built up area 1446 sq. ft. @ Rs.3213.00 per sq. ft with car parking, additional car parking, PLC, Power breaking, other charges with all easements, privileges, rights and benefits attached thereto along with proportionate undivided interest in common areas and exclusive right to occupy designated one covered car parking space. It was further averred that the Opposite Party had agreed to complete the residential Flat in a short span. However, no time for possession was fixed in the Agreement. It was further averred that an Allotment Letter was issued in this respect. It was further submitted that the basic cost of the flat was Rs.46,29,933.00 (excluding additional car parking + One covered car parking lease rent (one time), EEC, FFC, IFMS, Power Backup, Legal and Administrative charges. Hence, the total cost was Rs.52,70,213.00 excluding ST. It was also submitted that after payment of the first instalment of booking of Rs.4,62,993.00, the Complainant was assured that the Flat would be handed over in time. It was further averred that the neither the Completion Certificate nor the Builder Buyer Agreement were provided by the Opposite Party Builder to the Complainant. It was also averred that the Opposite Party had charged car parking charges twice from the Complainant whereas the car parking was to be handed over free of charge. It was further submitted that the Complainant contacted the Opposite Party on multiple occasions as there was delay in handing over of possession of the Flat. However, there was no positive reply from the side of the Opposite Party, and on one occasion the Opposite Party treated the Complainant very badly. It was further averred that the Complainant had paid the total cost of the Flat and in spite of this the Opposite Party had caused deliberate delay. It was submitted that such delay has caused monetary loss and harassment to the Complainant, forced him to live on rent @ 25,000/- p.m, impacted his health and hampered his credibility and reputation. It was further averred that the Complainant filed an RTI application before the Greater Noida Authority. However, no information was given by the Authority. It was further averred that the Occupation Certificate had not been obtained from the concerned Authority, and the Project was not complete till the date of filing the complaint. Hence, the Complaint was filed before the District Forum being aggrieved by the acts of the opposite Party and deficiency in their service with the following prayers:-

(3.) The Opposite Party appeared before the District Forum and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended by the Opposite Party that the Complainant had applied for the Unit as an investment for the purpose of re-sale and earning profits therefrom, and that the Complainant is not a 'consumer' as defined under the Consumer Protection Act, 1986. It was further contended that the Complainant did not mention the facts correctly before the Ld. District Forum. It was further contended by the Opposite Party that no Agreement other than the Allotment Letter was executed between the parties. The Allotment Letter dtd. 4/9/2013 executed by the Opposite Party contained all the necessary terms and conditions of allotment, and it was duly signed by the Complainant after going through the same. It was further contended that para 24 of the Allotment Letter clearly provides for the time period for handing over of possession which is 30 months inclusive of grace period from the date of execution of Allotment Letter. It was further submitted that Completion Certificate is given only at possession of the Unit and no Builder Buyer Agreement was to be executed between the parties. It was further contended that two covered car parking space were purchased by Complainant and no car parking free of charge was committed by the Opposite Party. It was further the case of the Opposite Party that there was no deliberate delay in handing over the Unit to the Complainant and the possession was offered vide letter for Offer of Possession dtd. 5/11/2015 within the agreed time as mentioned in Allotment Letter. However, the Complainant did not turn up. It was further contended by the Opposite Party that there was no delay on their part and rather the Complainant wished to sell the Flat and earn premium on the investment made by him and hence, he did not take the possession of the Flat himself, and intentionally did so. It was also claimed that the Complainant did not disclose his age and nature of ill-effects which he allegedly had on his health. It was further submitted that the Complaint is bad for non-joinder of parties as the Complainant nowhere mentioned the name of the co-applicant. It was further contended that the Complainant was aware of the progress and construction work carrying on in the Unit and was regularly inspecting the same. Hence, the Opposite Party contended that the possession was offered to the Complainant in time, but the Complainant did not accept the same on one or the other pretext.