ANILA JAIN Vs. EMAAR MGF LAND LTD

JUDGEMENT

(1.) The complainant booked a residential apartment with the opposite party in a project namely 'Palm Gardens' which the opposite party was to develop in Sector 83 of Gurgaon. The booking was made on 11.4.2012 paying a booking amount of Rs.7,50,000/-. After allotment of a residential apartment bearing No.PGN02-0204 to the complainant the parties executed an agreement on 29th May, 2012, incorporating their respective obligations in respect of the said transaction. As per Clause 10(a) of the agreement, the possession was proposed to be handed over to the complainant within thirty six months from the start of construction. A grace period of three months was also available to the opposite party for the limited purpose of applying and obtaining the occupancy certificate in respect of the unit and / or the project. The construction as per the brochure, which the opposite party had issued in respect of the said project started in June, 2012. It was also stated in the brochure that the construction was progressing as per schedule and the expected delivery was September, 2015. The grievance of the complainant is that the possession has not been offered to her and the construction is not complete, despite she having paid Rs.1,13,23,298/- out of the agreed sale consideration of Rs.1,19,57,632/-. The complainant is therefore before this Commission, seeking refund of the amount paid by her to the opposite party with compensation.

(2.) The complaint has been resisted by the OP which has admitted the allotment made to the complainant as well as the payment received from her. It is stated in the written version that in the event of delay, liquidated damage @ Rs.7.5 per sq. ft. per month are payable to the complainant in terms of Clause 12(a) of the agreement. It is further stated in the written version that the construction started in August, 2012 and the basic construction was completed in March, 2015 but several allottees defaulted in making payment which resulted in slow development. Reliance is also placed by the OP on Clause 8 (i) of the Agreement. It is also stated in the written version that the complainant is a permanent resident of Alwar in Rajasthan and is not a consumer within the meaning of the Consumer Protection Act.

(3.) As noted earlier, in the brochure issued by it for the purpose of sale of the residential flat in its project, the OP inter-alia represented to the perspective buyers that the construction in this project had commenced in June, 2012, it was progressing as per schedule and was likely to be completed by September, 2015. Though, it is stated in the written version hat the construction actually commenced in August, 2012, this is contrary to the representation made to the perspective flat buyers in the brochure. The learned counsel for the OP states that though the construction in this project had commenced in June, 2012, the construction of the particular tower in which the allotted flat was to be located commenced in August, 2012. Irrespective of whether the construction commenced in June, 2012 or August, 2012, the fact remains that the OP was not able to complete the same within the stipulated period of 36 months from the start of construction. Admittedly, the construction was not complete even in August, 2015, when 36 months computed from August 2012 expired. The learned counsel for the OP submits that though he is not aware of the date on which the occupancy certificate was applied for the tower in which the allotted flat is located, the said occupancy certificate has been received after a written version was filed by them. The written version having been filed in May, 2018, the occupancy certificate must have been received thereafter. It is therefore, evident that the construction was not complete even for almost three years from August, 2015 when it ought to have been completed even if it is assumed that it had started in August, 2012 and not in June, 2012.