MUKESH GUPTA & ANR. Vs. EARTH INFRASTRUCTURES LIMITED

JUDGEMENT

(1.) The delay on the part of the complainant in filing the affidavit is condoned. The application stands disposed of. The complainants, namely, Mukesh Gupta and his son Aseem Gupta booked a residential flat with the opposite party in a project, namely, 'Earth Copia' which the opposite party was to develop in sector 112 of Gurgaon and Unit No. 401 in Tower-F having super area of 1835 sq.ft. was allotted to them on a basic sale price of Rs.12845000/-. As per clause 11 of the Apartment Buyer's Agreement executed between the parties on 3.1.2013, the possession was expected to be delivered within a period of 36 months though a grace period of 6 months was also available to the opposite party. The possession, therefore, ought to have been delivered on or before 3.7.2016, including the grace period of 6 months. The grievance of the complainants is that the possession has not been offered to them and the construction is far from complete despite they having already paid Rs.3624403/- to the opposite party. The complainants are, therefore, before this Commission seeking delivery of possession of the apartment along with compensation in the form of interest. They are also seeking refund of the amount of Rs.93328/- paid as service tax as well as refund of the amount of Rs.3 lakh paid for car parking.

(2.) The complaint has been resisted by the opposite party which has taken a preliminary objection that the complainants are not consumers they being owners of the property in which they are residing. It is also pleaded by the opposite party that this Commission lacks pecuniary jurisdiction to entertain the complaint. On merits, the opposite party has interalia stated that the construction has already reached 12th floor but the complainants have made payment of only Rs.3624403/- inclusive of service tax. Thus according to the opposite party the complainants are defaulter in making timely payment of the agreed sale consideration. It is also alleged that the delay in construction has happened due to non-payment of installment by several flat buyers including the complainants.

(3.) As regards the preliminary objection of the opposite party that the complainants are not consumers they being owners of the property in which they are residing, the learned counsel for the complainants has drawn my attention to the agreement to sell and the Power of Attorney executed in respect of the house in which the complainants are residing. According to the learned counsel for the complainants these documents pertain to House No.G-124, Sainik Farms, New Delhi in which the complainants are residing. As per the above referred documents, it is only complainant No.1 Mukesh Gupta, who has agreed to purchase the aforesaid house by virtue of the agreement to sell and the Power of Attorney executed in his favour. The Complainant No.2 Aseem Gupta therefore has no right, title or legal interest in the aforesaid house. The case of the complainants is that the residential flat with the opposite party was booked for the residence of complainant No.2 who has since become a major. There is no evidence of complainant No.2 owning the above referred house or any other house in which he can re side. Therefore, it cannot be said that the complainants had booked the residential flat with the opposite party for a commercial purpose. Consequently, I do not find any merit in the preliminary objection taken by the opposite party.