AMIT GUPTA Vs. BPTP LIMITED

JUDGEMENT

(1.) This consumer complaint under Sec. 21(a)(i) of the Consumer Protection Act, 1986 (in short, the 'Act') read with Sec. 12 alleges unfair trade practice under Sec. 2(1)(r) and deficiency in service under Sec. 2(1)(g) of the Act in delay in handing over possession of a flat booked by the complainants within the promised time in a project promoted and executed by the opposite party and seeking refund of the amount deposited with compensation and other costs. This order will also dispose of the complaints in CC Nos. 335 of 2019 and CC No. 1515 of 2019 which relate to flats in different towers booked in the same project and which have similar facts. For the sake of convenience, the facts are taken from CC No. 1514 of 2019.

(2.) The facts, according to the complainants, are that they booked a residential flat in "Park Generations", a project promoted and executed by the opposite party in Sector 37-D, Gurgaon, Haryana. Complainants were allotted Flat No. T-4, Tower 4, 4th Floor admeasuring 1470 sq ft at a basic sale price of 3660 per sq ft amounting to Rs.53,80,200.00 along with Development Charges, Preferential Location Charges, Club Membership Charges, Interest Free Maintenance Security Car Parking, Electricity connection charges, Fire-fighting charges and Power Back-up installation charges and other additional charges. A discount of Rs.1,72,166.00 was provided making the amount Rs.52,08,034.00. A Flat Buyer's Agreement (for short, 'the Agreement') was signed on 6/12/2012 as per which (clause 3.1) possession was to be handed over in 36 months with a grace period of 6 months from the date of the Agreement, i.e., 5/6/2016. Payments were made commencing from 13/9/2011 amounting to Rs.64,15,108.00 with a timely payment discount of Rs.2,03,188.00 making the net payment of Rs.62,16,653.00. All payments were made on time except one which was paid with 18% p.a. interest. The complainant avers that despite timely payments the opposite party failed to offer possession of the flat to the complainants even after a lapse of 3 years 3 months and 10 days. The opposite party failed to respond to communications for refund of the money deposited and the complainants are now before this Commission with the prayer to direct the opposite party to:

(3.) Upon notice, the complaint was resisted by the opposite party by way of a reply. Averments of the complainant were denied while admitting the booking of the flat by them. Preliminary objections were taken that (i) as per clause 33 of the Agreement the matter was to be settled through arbitration; (ii) the pecuniary jurisdiction of this Commission had been invoked by inflating the reliefs sought; (iii) complainants were not 'consumers' under Sec. 2(1)(d) since refund has been sought after offer of possession was made on 15/10/2019 and since they were not able to trade the unit in the secondary real estate market; (iv) there was no cause of action and the complaint was barred by limitation as it was not filed within 2 years; (v) the complainants had not disclosed the full facts of being regularly updated about the construction status and subsequent offer of possession; (vi) the complaint raised complicated questions of facts which could not be adjudicated in summary proceedings; (viii) complainants were bound by the terms of the Agreement by which they had agreed liability of taxes and statutory dues; (vii) possession date indicated was subject to force majeure conditions in clause 10 including circumstances beyond the control of the opposite party and clause 3.3 providing for penalty for delay @ Rs.5.00 per sq ft per month; (ix) complainants defaulted in payments and were issued a final notice and are required to make the final payment since an offer of possession had been made to them. On merits, force majeure is claimed on grounds of default in payments by the allottees and National Green Tribunal's orders prohibiting construction in the NCR region and ban on vehicles more than 10 years old. Occupancy certificate was applied for Tower 4 on 24/7/2017 and received on 20/9/2019 and possession offered on 15/10/2019. Hence, it is contended that there was no deficiency in service or unfair trade practice and the complainant be dismissed.