R.K. AGRAWAL, J., PRESIDENT

1. The present Consumer Complaint has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short “the Act”)by Jignya Mittal (hereinafter referred to as the Complainant), against Macrotech Developers Limited (hereinafter referred to as the Opposite Party ‘Developer’), seeking compensation for delay in handing over the possession of the Flat booked by her in the Project launched by the Developer in the name and style of “Lodha Codename Blue Moon / Lodha Park, located at Pandurang Budhkar Marg, Opposite hard Rock Café, Worli, Mumbai, within stipulated period. 

2. According to the Complainant, the facts of the case are that the Opposite Party Developer invited applications for allotment of flats in their upcoming Project, “Lodha Codename Blue Moon / Lodha Park” (hereinafter referred to as the Project) assuring that valid approvals had been obtained by them.  In response to mail/letter dated 24.01.2013 sent by the Opposite Party Developer alluring the Complainant to book a flat in the Project during pre-launch offer and assured that the possession of the Flat will be delivered lastly by 31.12.2017, by paying a booking amount ₹9,00,000/-, the Complainant booked a 3 BHK Flat in the Project at a total sale consideration of ₹4,76,83,799 on 15.01.2013.  She was allotted Flat No.3402 (34^th Floor) in the Building known as ‘Lodha Allura’ vide allotment letter dated 14.03.2013 by the Opposite Party Developer after receiving a sum of ₹53,64,341/- from the Complainant.  An Agreement to sell (hereinafter referred to as the ‘Agreement’) was executed between the Parties on 02.08.2013.  It is the say of the Complainants that as per terms of the Agreement, the possession of the Flat was to be delivered by 31.12.2017.  However, when the Opposite Party Developer did not deliver the possession within stipulated period, vide letter dated 13.12.2018 the Complainant enquired about the date of delivery of the Possession. The Opposite Party Developer vide letter dated 07.05.2019 replied that the Possession would be delivered on or before December 2019.  It is further averred that without consent of the Complainant, the Opposite Party Developer unilaterally extended to offer rental offset @₹1,70,000/- per month, w.e.f. 1.1.2019 until the date of possession.  The Complainant, however, protested the said rental offset vide letter dated 07.05.2019.  The Opposite Party Developer vide letter dated 16.09.2019 offered the Possession of the Flat with the direction to the Complainant to clear the balance payment as per Annexure A attached thereto, wherein rental offset by credit adjustment of ₹11,53,667/- was one-sided done by the Opposite Party Developer.  In reply to mail/letter dated 18.09.2019 of the Complainant, the Opposite Party Developer replied vide its letter dated 18.09.2019 that the same has been credited as rental offset.  However, the Complainant vide letter dated 28.09.2019, without prejudice to her rights and contentions, accepted the possession of the Flat.  Alleging deficiency in service on the part of the Opposite Party for not handing over the possession of the Flat within stipulated period, the Complainant has filed the present Complaint with following prayer:-

“(a)    Directing the Opposite party to pay sum of ₹1,68,31699/- (₹ One Crore Sixty Eight Lacs Thirty One Thousand Six Hundred Ninety Nine only) to the complainant as delayed interest calculated @ 18% per annum on account of delay possession with effect from 1.1.2008 till the period 30.10.2019, towards the Unit No. 3402, Allura, A- wing, The Park, Worli, Mumbai known by the project Name as “Allura Park”

(b)     Further be pleased to award the cost and litigation expenses & Compensation for harassment & mental agony to the tune of ₹5,00,000/- (₹ Five lacs only) to the Complainant;

(c)     Pass such other or further order as this Hon’ble Commission may deem fit and proper in the interest of justice and in favour of complainant.

3. The Complaint was resisted by the Opposite Party by filing Written Statement in which the allegations levelled by the Complainants were denied and it was stated that the Complainant took the possession of the Flat after accepting the amount of ₹14,62,000/- adjusted towards rental offset by the Opposite Party, in suppression of and relinquishing any previous claim or assertion with regard to delay as the letter of Handover of Possession dated 01.11.2019 bears no endorsement or noting to the effect that the possession is being taken without prejudice to any right or claim whatsoever, therefore, the Complainant is not entitled for both rental offset and compensation after expressly waiving off her rights to raise any claim or grievance at a later date.  As such, the Complaint is not maintainable.  It was further stated that although the Complainant resides in Delhi yet she booked flat in Mumbai, and vide email dated 02.11.2019 informed that the Opposite Party Developer that a real estate agent would be visiting the flat.  This clearly shows that the Complainant has purchased the flat for investment/commercial purpose.  Therefore, the Complainant does not fall within the ambit of the definition of ‘consumer’ under Section 2(1)(d) of the Consumer Protection Act, 1986 and as such the Complaint is not maintainable. 
4. It was further stated that as per Annexure 2 of the Agreement to Sell the Estimated Fit Out date was 31.12.2017.  As per Clause 11.1 of the Agreement, they had 1 year more from 31.12.2017, i.e. the Estimated Fit-Out date mentioned in Annexure 2, for providing final possession of the Flat.  Accordingly, they had time until 31.12.2018 to obtain the Occupation Certificate and offer the complete possession of the Flat, without taking into account any grace period as provided for in the Clause 11.2 of the Agreement to Sell.  It was further stated that from the conjoin reading of Clauses 11.1 and 11.2 of the Agreement to Sell, it is clear that although the Opposite Party was liable to hand over the final possession of the Unit/Flat by 31.12.2019, yet they offered the Possession with Occupation Certificate to the Complainant on 16.09.2019, i.e., much before the 31.12.2019 and the Complainant took the possession on 01.11.2019 after availing the rental offset offered to her.  Therefore, there is no delay in delivery of possession of the Flat and the possession was offered well before the stipulated period.

5. It was further stated that the Complainant has wrongly stated that rental offset of ₹11,53,667/- was offered to her.  In fact, the total discount offered to the Complainant was for a sum of ₹17,23,691/-, which comprised of ₹14,62,000/- towards the rental offset and ₹2,61,691/- for GST saving. 
6. It was stated that there is no deficiency in service on their part and prayed that the Complaint may be dismissed.

7. Mr. Deepak Kumar Khushalani, learned Counsel appearing on behalf of the Complainants submitted that as per Agreement to sell the Opposite the date of delivery of possession was 31.12.2017.  It was further submitted that without their consent, the Opposite Party Developer unilaterally extended to offer rental offset @₹1,70,000/- per month, w.e.f. 1.1.2019 until the date of possession.  They, however, protested the said rental offset vide letter dated 07.05.2019.  The Opposite Party Developer vide letter dated 16.09.2019 offered the Possession of the Flat with the direction to the Complainant to clear the balance payment as per Annexure A attached thereto, wherein rental offset by credit adjustment of ₹11,53,667/- was one-sided done by the Opposite Party Developer.  However, the Complainant vide letter dated 28.09.2019, without prejudice to her rights and contentions, accepted the possession of the Flat.  Despite receiving the payments as per demand, Opposite Party Developer failed deliver the possession of the Flat within stipulated period.  He prayed that the present Consumer Complaint be allowed and the reliefs sought in the prayer clause of the present Complaint be granted.

8. Per contra, Mr. Rahul Kriplani, learned Counsel appearing on behalf of the Opposite Party Developer submitted that as per Annexure 2 of the Agreement to Sell the Estimated Fit Out date was 31.12.2017.  He relied upon Clause 11.1 and 11.2 of the Agreement to sell, which read as under:

“11.1 Subject to the Purchaser not being in breach of any of the terms hereof and the purchaser having paid all the dues and amounts hereunder including the Total consideration, the company shall be favor to provide the Unit to the purchaser for fit outs on or before the date as set out in Annexure “2” hereto. The Company shall endeavour to make all necessary submissions to obtain the occupancy certificate in respect of the Unit of the Building and make available the key common Areas and Amenities in respect of the Building within a period of 1 (one) year from the date of offer of the possession (for fit outs) as set out in Annexure (2) hereto an this shall be deemed to be the final possession of the Unit.

11.2 The Company shall without being liable to the Purchaser, be entitled to a grace period of 1 (one) year beyond the aforesaid dates mention in the Clause 11.1. The date on which the occupation certificate is issued (or deemed to be issued as per the relevant provisions of legislation) shall be deemed to be the “Date of Offer of Possession”

9. It was submitted that from the conjoin reading of Clauses 11.1 and 11.2 of the Agreement to Sell, it is clear that although the Opposite Party was liable to hand over the final possession of the Unit/Flat by 31.12.2019, yet they offered the Possession with Occupation Certificate to the Complainant on 16.09.2019, i.e., much before the 31.12.2019 and the Complainant took the possession on 01.11.2019 after availing the rental offset offered to her.  Therefore, there is no delay in delivery of possession of the Flat and the possession was offered well before the stipulated period.   It was further submitted that the Complainant took the possession of the Flat after accepting the amount of ₹14,62,000/- adjusted towards rental offset by the Opposite Party, in suppression of and relinquishing any previous claim or assertion with regard to delay as the letter of Handover of Possession dated 01.11.2019 bears no endorsement or noting to the effect that the possession is being taken without prejudice to any right or claim whatsoever, therefore, the Complainant is not entitled for both rental offset and compensation after expressly waiving off her rights to raise any claim or grievance at a later date.  As such, the Complaint is not maintainable. In support of his contentions, he relied upon the following Judgment :-

10. It was submitted that there is no deficiency in service on their part and it was prayed that the present Consumer Complaint be dismissed.

11. I have heard Mr. Deepak Kumar Khushalani, learned Counsel appearing on behalf of the Complainant, Mr. Rahul Kriplani, learned Counsel appearing on behalf of the Opposite Party and have given a thoughtful consideration to the arguments advanced by them.

12. The contention of the learned Counsel for the Opposite Party Developer that the Complainant does not fall under the definition of Consumer under section 2(1)(d) of the Consumer Protection Act, 1986, as she had purchased the said Flat for investment/commercial purpose, is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of Flat in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case the OP Developer had failed to discharge by filing any cogent/documentary evidence to establish their case. The allegation of the Opposite Party Developer is based on assumption and presumption only.  Therefore, the Complainant is a ‘Consumer’ as defined under Section 2 (1)(d) of the Act.

13. The Judgment in the case ‘M/s TDI Infrastructure Pvt. Ltd. vs. Rajesh Jain (supra) relied upon by the learned Counsel for the Opposite Party Developer does not help him as the facts of that case is different from the case in hand as in that case the Complainant has booked 6 plots whereas in the present case the Complainant has booked only one flat in the said Project. 

14. From the conjoin reading of Clause 11.1 and 11.2 of the Agreement to Sell (reproduced earlier), it is evident that the Opposite Party Developer was bound to give the Possession of the said Flat by 31.12.2019.  However, the Opposite Party Developer handed over the Possession of the Flat to the Complainant vide letter dated 01.11.2019.  Para (v) of said letter and acceptance of the same by the Complainant, is reproduced below:-

“(v)      In accordance with the possession demand letter rental offset amounting to INR 14,62,000/- has been offered and accepted by you and the Unit has been delivered in accordance with the Agreement, accordingly you have no outstanding grievance against the company and waive any claims against the Company in respect of or in connection with the handover of possession of your Unit.  We request you to sign this letter conforming your acceptance of the terms and conditions mentioned above.

We confirm and accept

Signature of the Applicant

Jignya Mittal”

15. From the perusal of the above-said letter, it is clear that the Complainant accepted the rental offset of ₹14,62,000/- and the possession of the said Flat on 01.11.2019, i.e., much before 31.12.2019.  Therefore, there is no delay on the part of the OP Developer in giving the Possession of the Flat to the Complainant, more so after giving rental offset of ₹14,62,000/- to the Complainant.     

In view of above, I see no merit in the present Consumer Complaint and the same is dismissed with no order as to Costs.