JUSTICE DEEPA SHARMA, PRESIDING MEMBER

1.       The present complaint has been filed with the contention that complainants are joint allottees of two units in the project of the opposite party called ‘Gurgaon Greens’ located at Sector-102, Gurgaon, Haryana.  The opposite party had represented that they were in the process of constructing luxury apartments residential society and had also represented that they had secured all necessary layout / development plans/licenses etc. from the competent authorities.  They also represent that on payment of Rs.7,50,000/-, they shall issue an allotment letter and within 90 days execute Builder Buyer Agreement.  This representation was made in the month of August /  September 2012 and on 17.10.2012 the complainants made initial payment of Rs. 7,50,000/- respectively against each of the two units towards booking amount, for which no receipt was issued on the said date.  A Provisional Allotment Letter for the units GGN220601 and GGN220602 were issued on 27.01.2013 and demand of Rs.7,22,010.60/- and Rs.7,40,550/- were also raised against the two units which included 50% of EDC and 50% of IDC which was payable latest by 21.02.2013.  The complainants made payment of said sum on 22.02.2013.  Since there was delay of one day, the complainants were made to pay penalty of 24% interest for such delay.  A demand was also raised vide letter dated 01.03.2013 for Rs.8,78,730/- and Rs.8,88,000/- respectively for the two units and the payments had been made by the complainants within time.  It was only on 04.04.2013 that the opposite party asked the complainants to execute two Builder Buyer Agreement which  had been provided by them.  The total consideration price of the unit GGN220601 was Rs.1,28,84,456.02/- and for other unit GGN220602, the consideration price was Rs.1,30,69,850.02/- excluding parking and some other charges. They were made to sign the Builder Buyer Agreement as refusal would have resulted in forfeiture of the amount which they had already paid.  They, therefore, signed the Builder Buyer Agreement as they did not have any other option.  The complainants had opted for the Construction Linked Payment Plan. The delivery time of the two units was 36 months.  The complainants also took loan from HDFC Bank. Two separate loans were taken for two units.  A Tripartite Agreement dated 04.04.2013 was entered into between the complainants, opposite party and the bank and, thereafter, the loan was disbursed.  The loan was given on an interest of 10.40% per annum on a variable rate linked plan. The rate of interest increased to 10.75% in 2013 and currently it is 9.45%. Between the period April 2013 to June 2017, the complainants continued to make the payment as per demands. Till 26.07.2017, the complainants disbursed all instalments sent by the opposite party and they had paid Rs.99,52,654/- against unit no.GGN220601 and sum of Rs.1,00,93,414/- against unit no.GGN220602.  The project as per the representation of the opposite party was to be completed within 36 months from the date of first payment i.e. by October, 2015 and the units were to be handed over along with all amenities. Even if, period of 36 months were to commence from the date of signing of the Builder Buyer Agreement, the units were to be delivered by April 2016.  It was alleged that when the units were not handed over within the stipulated period, they sent several emails to the opposite party and the opposite party kept changing the delivery dates and all the time gave them new delivery date.  It is submitted that vide email dated 18.01.2017, the opposite party  had unilaterally amended Builder Buyer Agreement and decreased the delayed payment charges from 24% p.a. to 12% p.a.  It is submitted that this email was sent with oblique motive and malafide intentions.  Even thereafter, the complainants continued to disburse the loan amount although the possession of the units were not handed over to them. On 12.05.2017, a notice was served upon the opposite party asking them to refund the entire deposited amount. It is contended in the complaint units were still not complete and it is not available for possession to them and it is prayed that opposite party be directed to refund the entire deposited amount alongwith compound interest @ 24% and they shall also pay compensation of Rs.20,00,000/- and Rs.25,00,000/- on account of mental agony and financial loss. 

2.       Notice of the present complaint was issued to the opposite party.  The claim is contested by the opposite party. They have not denied that complainants were allottees of the two units.  It is submitted that this  Commission has no pecuniary and territorial jurisdiction and also that the complaint is delayed.  It is submitted that work had slowed down on the site due to some issues with the contractor. It is further submitted that opposite party is planning to obtain the occupancy certificate from the competent authorities and willing to hand over the possession of the said premises to the complainants. It is submitted that work of construction had slowed down as the company had undergone re-structuring and process of demerger pursuant to Scheme of Arrangement pending before the Hon’ble High Court of Delhi.  It is further contended that complainants are having their own house and they have booked the apartments for commercial / investment / speculative purpose and, therefore, they are the not the consumers within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986 ( in short, the Act).  It is further submitted that Builder Buyer Agreement has a continuing effect and determines the rights and contentions of the parties and thus rights have to be determined in terms of the clauses of the Builder Buyer Agreement.  It is further submitted that time was not the essence of the contract.  It is further submitted that opposite party is not responsible for mental agony caused to the complainants. It is denied that complainants were threatened or pressurised to sign the Builder Buyer Agreement. On these contentions, it is submitted that there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

3.       The parties have led their evidences.  Parties have also filed their written arguments.

4.       I  have heard the arguments and have perused the record.

5.       Admitted facts of the case are that complainants had booked two units as mentioned above in the project of the opposite party and had paid a total sum of Rs.2,00,46,068/-  and for making the payment, they had also raised loan from the HDFC Bank.  It is also a fact that Builder Buyer Agreement was executed on 04.04.2013 and the complainants had opted for Construction Linked Payment Plan and had been making payments within time and there was no major default on their part.  Under the Builder Buyer Agreement, the opposite party was to deliver the possession of the units within three years i.e. latest by April 2016.  However, till the filing of the complaint in the year 2017 and filing of the written statement in January 2018, there was no offer of possession and no occupancy certificate had been obtained by the opposite party. The opposite party, therefore, evidently has failed to keep its promise in the Builder Buyer Agreement and failed to deliver the possession of the said units even after expiry of more than four years. Even till date, the opposite party has not come up with the plea that they had completed the construction and had obtained the occupancy certificate. Although in its written submissions dated 07.01.2019, the opposite party submits that construction of the two units is fully complete for possession.  There is no contention that occupancy certificate has been obtained in this matter.  Even otherwise, the Hon’ble Supreme Court in the case of Fortune Infrastructure & Anr. Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442 has clearly held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and he can seek refund alongwith compensation. In the case of Bangalore Development Authority Vs. Syndicate Bank 2007 (6) SCC 711, the Hon’ble Supreme Court has also held that when possession is not delivered within the specified time, allottee is entitled for refund of the amount with reasonable interest from the date of payment till refund.  Therefore, complainants have a cause of action which was continuing one and, therefore, the contentions of the opposite party that claim was time  barred, is meritless.

6.       Learned counsel for the opposite party has also taken a plea and has argued that complainants are not the consumers within the meaning of Section 2 (1) (d) of the Act.  Learned counsel for the opposite party has further submitted that complainants have booked the units with the intention of investment and since property is not going to give them agreed return, they are asking for the refund of the money.  The opposite party, however, has not produced even an iota of evidence which could show by preponderance of evidence that the two units were booked by the complainants with the intention of investment and with the intention of selling it for profit.  The complainants admittedly are not the property dealers i.e. they are not in the business of buying and selling the properties.  The opposite party has miserably failed to prove even by preponderance of evidence that complainants are not the consumers within the meaning of Section 2 (1) (d) of the Act.  Learned counsel for the opposite party has raised the contention in the written statement although at the time of argument this contention has not been pressed that this Court has no territorial and pecuniary jurisdiction.  However, in terms of findings of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC) , it is apparent that this Commission has pecuniary as well as territorial jurisdiction.

7.       For the reasons discussed above, I allow the Consumer Complaint and issue the following directions:

1.       The opposite party is directed to refund the amount of Rs.2,00,46,068/-  to the complainants alongwith simple Interest @ 9% p.a. from the date of deposits till the date of payments.

2.       Cost of litigation for a sum of Rs.25,000/- is also awarded to the complainants.

3.       The opposite party is directed to make the payment within six weeks from the date of receipt of copy of this order.