MINAKSHI CHOUDHARY Vs. RAHEJA DEVELOPERS LTD.

JUDGEMENT

(1.) This complaint under Sec. 21 of the Consumer Protection Act, 1986 (in short, 'the Act') has been filed alleging deficiency in service and unfair trade practice in respect of a flat booked by the complainant in a project promoted and executed by the opposite party namely viz., 'Raheja Revanta' in Sector 78, Gurgaon.

(2.) The facts of the case in brief are that the complainant booked an apartment on 17/5/2012 against an initial deposit of Rs.43,34,884.00 in the said project. A floor buyer's agreement ( in short, 'the Agreement') was also executed between the parties on 17/5/2012 as per which Apartment no.A-091 ad-measuring 2168.85 sq ft was allotted to the complainant for a total sale consideration of Rs.1,33,58,446.00 excluding service taxes and registration. The complainant made deposits of payment amounting to Rs.1,16,03,737.00 on various dates between 8/11/2011 to 26/6/2016 in 16 installments. The opposite party has not handed over the possession of the said flat despite undertaking in the Agreement vide Clause 4.2 that possession of the unit would be given within 36 months. It is submitted that the said agreement was a one sided and prepared document presented by the opposite party and that the complainant did not have the opportunity to amend the same. The opposite party has also not paid compensation for the delay in possession as per Clause 4.2 of the Agreement. The complainant is before this Commission with the prayer to (a) refund the entire amount paid against the cost of the apartment no. A-091; (b) to pay interest @ 18% per annum on the amount paid from the date of deposit till refund of the entire amount; (c) to pay compensation of Rs.5.00 lakh for causing financial risk, hardship, mental agony, harassment and emotional disturbance to the complainant; (d) pay Rs.75,000.00 as litigation expenses; (e) pay compensation under Sec. 14(HB) on account of unfair trade practice; (f) to dispense filing of the certified copies/true typed/fair copies of the annexure; and (g) any other relief as deemed fit and proper under the facts and circumstances of the present case.

(3.) The complaint was resisted by way of reply by the opposite party denying the averments of the complainants. It was stated that the project had been launched after all necessary and requisite permissions/sanctions from the competent authority including licence by the Director General, Town and Country Planning, Haryana under Haryana Development and Regulation of Urban Areas Act, 1975 and the Rules framed thereunder. Preliminary objections were taken that at the time of launch of booking and execution of the Agreement the applicants/complainants had been categorically informed about the terms and conditions of the allotment. It was stated that the application form in Clause 1 had stated that applicant was applying with full knowledge and subject to all laws, notification and rules and that the licence for the Group Housing Project had been issued and the building plans sanctioned by the DG, Town and Country Planning, Haryana. It was also stated that in Clause 21 of the Agreement the period of 36/48 months plus grace period of six months for handing over possession was from the date of the execution of the agreement and was subject to the providing of the necessary infrastructure in the Sector by the Government, and, that if for any other reasons, there was delay the opposite party would be liable to pay compensation @ Rs.7.00 per sq ft of the super area per month for the entire period of such delay. It was also stated that Clause 22 of the Application Form and Clause 4.3 of the Agreement to Sell also states that this project site may not have the infrastructure in place either on the date of booking or at the time of handing over of the possession as the same was to be provided/developed by the Government or its nominated agency which was beyond the control of the opposite party and therefore, the allottees shall not be entitled to any compensation for the delay/non provision of infrastructure facilities and/or consequent delay in handing over the possession of the apartment in question. It was contended that in view of the Dwarka Expressway being entangled in legal issues of land acquisition before the Punjab and Haryana High Court, the Government/ Government agency failed to provide the basic infrastructure such as road, sewerage, water and electricity supply despite the fact that EDC, IDC and other social infrastructure such as public transport, Government hospitals, schools and colleges, community and religious buildings, street and traffic lights was also not developed. Shifting of overhead high tension electricity lines passing through the middle of the project and disputes with the contractors had also delayed the project. These problems continue till today and therefore, the period of handing over the possession cannot be commuted by ignoring these facts. The Punjab and Haryana High Court in CWP no. 20032 of 2008, Sunil Singh vs Ministry of Environment and Forests and Others, banned the use of underground water and sand mining for construction purpose and therefore, the opposite party had to be dependent on the supply of the water through tankers. This was aggravated by default in payment by the allottees and non-availability of necessary infrastructure such as road in the sector in question. The delivery of possession estimated at the inception of the project was not the essence of the contract since the likely delay in possession had been indicated in the Agreement. It is contended that the delay itself cannot, therefore be termed as deficiency in service or unfair trade practice on the grounds of non-offer of possession or compensation. It was further argued that the complaint was not sustainable under the Consumer Protection Act, 1986 but was a civil dispute which could be agitated before the Competent Authority under the contractual provisions. It was contended that the complaint was barred by limitation under Sec. 24-A of the Act since the Agreement was executed on 17/5/2012 and the present complaint was filed in 2018. It is also stated that the allegations were contractual in nature and that as held by the Hon'ble Supreme Court in the case of Bharti Knitting Co., vs DH World-wide Courier (1996) 4 SCC 704, a person signing the document containing certain contractual documents was bound by such contractual terms and that no claim can be raised. It was also contended that the allegations of the complainant related to an Agreement to Sell and no 'service' had been rendered within the meaning of Sec. 2 (1) (o) of the Act and that the Hon'ble Supreme Court in Bangalore Development Authority vs Syndicate Bank (2007) 6 SCC 711 had held that a dispute in respect of an Agreement to Sell a plot does not relate to rendering of any 'service' under the Act. It was contended that only after completion of the construction, could a conveyance deed be executed and therefore such an Agreement does not involve rendering of 'service'. Reliance was also placed on Magus Construction Pvt. Ltd., vs UOI (2008)( 15 VST 17 (Gauhati) and it was argued that since the complaint relates to refund of amount paid, it can only be adjudicated by a Civil Court after detailed evidence. The opposite party also contended that there was no unfair trade practice under Sec. 2(1)(r) of the Act in the absence of any allegation regarding the alleged services with reference to the grievances made. Therefore, the complaint did not fall under the summary jurisdiction of the CP Act, 1986.