ALOK KUMAR Vs. VATIKA LIMITED

JUDGEMENT

(1.) This consumer complaint under Sec. 21 of the Consumer Protection Act, 1986 (in short, the 'Act') is filed against the opposite party alleging deficiency in not handing over possession of the flat booked by the complainants within the promised time and seeking refund of the amount deposited with interest as compensation and other costs.

(2.) The complainants' state that they paid a booking amount of Rs.8,00,000.00 towards a flat in the opposite party's project, 'Tranquil Heights', Vatika India Next, Sector 82 A, Gurugram and were allotted flat no 1602, Tower E on 13/10/2014 tentatively measuring 2150 sq ft for a sale consideration of Rs.1,47,22,500.00. A Builder Buyers' Agreement (in short, 'Agreement') was provided by the opposite party in June 2015 which was signed by them even though it was one-sided and imposed unfair conditions of deduction of earnest money, service tax, brokerage, if any, and other charges in case booking was cancelled and 18% penalty on delay in payments as Rs.34,56,091.00 had already been paid by them. Possession was promised within 48 months. On 16/2/2015 a sum of Rs.2,21,831.00 was demanded by the opposite party on account of increase in the built up area of the flat to 2265 sq ft. In view of the project not taking off and follow up by the complainants, the complainants wrote to the opposite party seeking details on 18/9/2017 and thereafter issued a notice on 23/10/2017 which was refused. Complainants are before this Commission with the prayer that:

(3.) The complaint was resisted by the opposite party by way of a written statement denying averments of the complainants. Preliminary objections were taken that (i) the complaint was based on conjectures and surmises; (ii) the Commission lacked the pecuniary jurisdiction to entertain this complaint under Sec. 21(1)(a) as the amount was less than Rs.1,00,00,000.00; (iii) complainants were not 'consumers' under Sec. 2(1)(d) of the Act as they were residents of Dubai who had invested in the flat for speculative gains through a broker; (iv) all necessary approvals had been obtained by the opposite party and (v) no deficiency in service had been proved by the complainants. On merits, it was argued that (i) the Agreement dtd. 7/9/2015 had promised possession on 7/9/2019 after 48 months; (ii) clause 2 made the allottee liable for forfeiture of the earnest money in case of cancellation; (iii) clause 7 mentioned that time was of the essence and provided for interest to be levied for default in payments; (iv) clause 9 was specific in stating that the super area of the flat was tentative and would be finally known on completion; (v) clause 16 provided for delays in the project's execution in case of force majeure conditions; and (vi) the complainants were in default of not paying Rs.31,13,998.36 since 20/8/2014 despite a waiver of Rs.56,563.00 having been extended.