PER MR SUBHASH CHANDRA, MEMBER

1.      The present complaint relates to an apartment booked by the Complainants in a project called ‘Palm Gardens’ in Sector 83, Gurgaon, Haryana being executed by the Opposite Party. The complaint is filed under Section 21 read with Section 12 (1) (A) of the Consumer Protection Act, 1986 alleging deficiency in service in not delivering the apartment booked within the time promised and unfair trade practice in charging of various amounts arbitrarily by the Opposite Party.

2.     The brief facts of the complaint are that an apartment was booked by the Complainants for a sale consideration of Rs.95,36,103.43 including taxes in ‘Palm Gardens’ project in Sector 83, Gurgaon, Haryana on 03.07.2011. Payments amounting to Rs.94,88,317/- were made by the Complainants in instalments to the Opposite Party between 07.07.2012 to date amounting to 96% of the cost of the apartment. Possession was not offered by the Opposite Party even after two years of the promised date of September 2015 inclusive of the grace period. It is averred that this amounts to unfair trade practice and deficiency in service.

3.      According to the Complainant, the Provisional Allotment letter dated 13.07.2011 allotted flat no. PGN – 09- 0605 in Tower 9 of the said project to the Complainant and the Builder Buyer’s Agreement dated 27.08.2011 was executed by the OP. It is contended that building plans were not approved by the District Town and Country Planning Department, Gurgaon, the statutory plan sanctioning authority till 23.03.2012. The Opposite Party revised the building plans in May 2015 and slowed down construction work till July 2016, i.e., beyond the date of possession of September 2015. Further, additional amounts for parking, service and various other taxes and charges were levied by the opposite party. The inordinate delay amounts to deficiency in service on the part of the Opposite Party. Relying on this Commission’s order in Satish Kumar Malhotra and 49 Others vs DLF Ltd., and Anr – in CC 12375 of 2015 dated 07.06.2016, it is submitted by the Complainant that failure to deliver possession within the promised time with no firm commitment for handing over possession constitutes inordinate delay warranting financial and personal loss. The Complainants are therefore before this Commission with the following prayer:

(i)      Direct the Opposite Party to hand over possession of the Unit to the Complainants, complete in all respects and in conformity with the Buyer’s Agreement and for the consideration mentioned therein, with all additional facilities and as per quality standards promised and execute all necessary and required documents in respect of the said unit in favour of the Complainants within six months of this petition being filed before this Commission or as this Commission deems fit and appropriate;

(ii)     Direct the Opposite Party for an immediate 100% refund of the total principal amount of Rs.91.55,299/- paid by the Complainants, along with a penal interest of 18% per annum from the date of the receipt of the payments made to the Opposite Party, in case the Opposite party cannot deliver or fail to deliver the absolute, complete and final physical possession of the flat within a period of six months of this petition being filed before this Commission or as directed by this Commission;

(iii)    Direct the Opposite Party to pay a delayed possession compensation equal to interest @ 18% per annum on the amount deposited by the Complainants with the Opposite Party, with effect from September 2015, i.e., date when possession was promised, till the date of actual possession is handed over by the Opposite Party along with all necessary documents and common areas and facilities as promised during the initial booking made by the Complainants;

(iv)    Direct the Opposite Party to provide adequate car parking space to the Complainants and to refund the amount charged towards car parking space along with service tax and interest @ 18% from the date when the payment was made;

(v)     Direct the Opposite Party to provide for third party independent audit to provide exact “carpet area” of the apartment viz-a-viz “super area” of the apartment and ascertain that specifications as promised at the time of the sales pitch are provided;

(vi)    Direct the Opposite Party to pay Rs.6,000/- per day in case the Opposite Party fails to deliver the Unit within six months or as directed by this Commission;

(vii)   Direct the Opposite Party to pay compensation of Rs.10,00,000/- to the Complainants for mental agony, harassment, discomfort and undue hardships caused to the Complainants as a result of the above acts and omissions on the part of the Opposite Party;

(viii)   Direct the Opposite Party to pay a sum of Rs.1,00,000/- to the Complainants as a whole, towards litigation costs;

(ix)    Direct the Opposite Party to refund wrongfully charged taxes and other charges along with the interest on that amount at the rate of 18% per annum from the date of receipt of such wrongfully levied charges and taxes;

(x)     Direct the Opposite Party to provide lifetime permanent club membership to the Complainants without any charges and restrain the Opposite Party from raising any demand for the same in future; and

(xi)    Any other and further relief in favour of the Complainants as the Commission may deem fit and proper in the fact and circumstances of the case.

4.     The Opposite Party has resisted the Complaint by way of affidavit. It has contended that the complainant does not fall within the purview of Section 2 (1) (d) (ii) as the Complainant is already a permanent resident in Panchkula, Haryana and is therefore, not a ‘consumer’, having booked the flat for commercial reasons. Unfair trade practices are denied and it is contended that in view of the Buyer’s Agreement dated 27.06.2011, Complainant can only challenge it under the Indian Contract Act, 1872. According to the OP, notwithstanding this, physical possession of the flat in question was awaiting receipt of ‘Occupation Certificate’ from the authorities and payments from other allottees. It was averred that clause 10 (a) of the Buyer’s Agreement proposing handing over of the apartment in 39 months (including 3 months of grace period) was contingent upon other clauses such as 7, 8, 13, 16 and 26 relating to force majeure. As there has not been any negligence on his part, the OP avers that it is not liable to pay compensation under Section 14 (1) (d) of the Consumer Protection Act, 1986. It is also claimed that the complainant is barred by limitation and pecuniary jurisdiction, as per the judgments of the Hon’ble Supreme Court in Secretary, Bhubaneshwar Development Authority vs Susanta Kumar Mishra [ V (2009) SLT 242 ] and Bharati Knitting Company vs DHL Worldwide Express Courier Division of Air freight Ltd., [ II (1996) CPJ 25 (SC) ].

5.     Parties filed their rejoinder/ evidence and written submissions. We have heard the learned counsels for both the parties and perused the records carefully.

6.      As per order sheet dated 24.06.2019 possession of the flat in question has been offered over to the complainants by the Opposite Party vide letter dated 08.05.2019. The only issue, therefore, remaining to be decided is the quantum of compensation to be paid by the Opposite Party to the Complainant for the delay in handing over possession, as all other related matters of charges and dues stand settled between the parties.

7.      The date of offer of possession of the flat to the Complainants was 08.05.2019. This is nearly 43 months after the promised date of possession. Opposite Party cannot therefore, be absolved of deficiency in service. Therefore, we find merit in the complaint which is allowed with the following directions:

1. Opposite party to pay simple interest @ 9% on the amount deposited by the Complainant from the due date of delivery till offer of possession;
2. Rs.50,000/- towards litigation costs be also paid by the OP to the complainant;
3. Payments be made within three months of the receipt of this order failing which a penal interest @ 12% per annum will be liable to be paid.