1. The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-

1. Refund the entire amount of ₹1,22,42,560/- for the delay in completing the project and handing over possession along with interest at the rate of 18% per annum from the date of payment till the date of refund along with pendent lite interest.

2. Declare the opposite party altering the agreed upon BSP unilaterally, changing the payment plan and including additional parking charges to the same as deficient service and unfair trade practice.

3. Set aside the unreasonable and illegal interest charged to the complainant despite timely payments being made.

2. Notice was issued to the OP.  Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A.  The details of the flat allotted to the Complainant/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table- A.

3. Brief facts of the case, as emerged from the pleadings of the parties and other case records are that the complainant had booked a flat in a group housing project being developed by the OP namely “Ansal Highland Park” located at Dwarka Expressway, Sector 103, Gurgaon, Haryana in June 2012 and was allotted a unit number ABDEN-0102. As per ABA,  the possession was to be handed over by 12th October 2016. However, the possession has not been offered to the complainant till date.

4. Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

5.  It was argued by the complainant that the ABA dated 18th March 2013 included amended payment plan whereby two instalments i.e. EDC and IDC were added unilaterally by the OP despite having collected it from the complainant before the commencement of the construction which is in contravention of the payment plan agreed, the complainant had specifically booked a 4 BHK flat on the ground floor in the corner side, however OP allotted 3 BHK + one room + utility room flat on the first floor of the project, OP changed the BSP from ₹4128/- per square feet to  ₹4524.42 per square feet by adding parking charges to the BSP illegally and arbitrarily contrary to the clause 22 of ABA. As per the ABA, the OP was to complete the project within 48 months from the date of execution of agreement. Despite having received the money from the complainant in timely manner, OP failed to perform his contractual obligation of handing over the possession of the apartment to complainant, which has not been offered to the complainant till date. The complainant has booked the apartment for himself and his family members and not for commercial purpose, the OP is not entitled to benefit of any force majeure clause since the existence of force majeure condition was not in existence all throughout when the complainant was making regular timely payments. During the oral hearing, the complainant stated that their case is covered by an earlier judgment of the Commission in CC 1624 of 2018 decided on 13th July 2022 in which refund has been ordered and the present flat is also in the same project of the same OP.

6. The OP on the other hand, besides raising technical objections regarding the SPA being without proper authorization and stating that the complainant having purchased the flat for purely commercial purpose is not a consumer, stated that that the entire project is comprised of 2/3/3+1BHK apartments only. Since beginning when the complainant approached the OP, 3 BHK + one utility apartment was shown, offered and booked. On no occasion, whatsoever, it was represented to the complainant or any of the allottees in the said project, either verbally or in writing that there are 4 BHK apartments. The delay in completion of the project is due to force majeure reasons such as orders of the Hon’ble High Court of Punjab and Haryana whereby groundwater extraction was banned in Gurgaon, orders passed by the NGT whereby mining of sand in Haryana and Rajasthan was banned, reservation agitation in Haryana, orders of the NGT to stop construction to prevent emission of dust in the month of April 2015 and again in November 2016, demonetization etc. which adversely affected the progress of the project. According to OP such causes were beyond their control and forced the OP on numerous occasions to stop the work at the site. The OP denied having made any changes to the cost/BSP or the payment plan. It was further argued that car parking space in the project is developed by OP separately and not carved out of super area hence the charging of car parking space is valid.

7. This Commission in it's judgement in CC 1624 of 2018 decided on 13th July 2022, which covered the same project of the same OP viz ‘Ansal Highland Park’ in Sector 103 Gurgaon, at length considered the similar arguments advanced by the OP, especially with regard to the force majeure reasons for delay in project and the contentions of the OP of complainant having bought the unit for commercial purpose etc.,  and ordered  the refund of the amount paid by the complainant along with interest at the rate of 9% per annum from the date of deposit till the date of payment. In another case also relied upon by the complainant, concerning the same project of the OP, viz CC 235 of 2018 decided by this Commission on 6^th January 2022, rejecting the contentions of the OP about delay being on account of force majeure circumstances, refund with 9% simple interest was ordered.

8.  The contention of OP that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs. one crore. The contention that complainant is not a consumer as he has purchased the unit for commercial purpose is also rejected as no such evidence has been adduced by the OP in this regard. The plea of OP that delay was due to force majeure circumstances is not valid as even after a gap of more than six years from the committed date given in the ABA, possession of flat has not been given.  There is no documentary evidence to support the contention of the Opposite Party that the reasons pleaded by them, can be construed as ‘Force Majeure’.

9. In the instant case, there is an inordinate delay in handing over the possession of flat by the OP. The complainant cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP.

10. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, and earlier decision of the Commission in cases cited, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

(i) The OP shall refund the entire principal amount of Rs.1,22,42,560/- (Rupees one crore twenty two lakh forty two thousand five hundred sixty only) to the complainant, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund.  The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.

(ii) The OP shall pay a sum of Rs.25,000/- as cost of litigation to the complainant.                 

(iii) The payment in terms of this order shall be paid within three months from today.

(iv) In case the complainant has taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.

11. The pending IAs, in any of the Consumer Complaint, if any, also stand disposed off.