PER MR. SUBHASH CHANDRA, MEMBER

1.     This Complaint has been filed u/s 21 read with section 12 (1) (a) of the Consumer Protection Act, 1986 (the Act, in short) seeking relief on grounds of alleged deficiency in service and unfair trade practices by the Opposite Party who is the promoter and developer of the project Emerald Floors Select (B), Sector 65, Gurgaon. 

2.     The facts in brief as averred by the Complainants are that they had booked an apartment in the above project and were allotted a unit EFS-B-C-FF-061 vide allotment letter dated 28.01.2012.  A Buyer’s Agreement was executed between the parties on 13.03.2012 for a total sale consideration of Rs.1,74,74,475/- (Rupees one crore seventy four lacs seventy four thousand four hundred and seventy five).  A sum of Rs.90,55,835/- (Rupees ninety lacs fifty five thousand eight hundred and thirty five)  amounting to 49% of the total cost has been paid by the Complainants till date.  However, as per Clause 13 of the buyer’s agreement, the Opposite Party has failed to provide possession within the commitment period of 24 months and a further with the three months’ grace period. The delay of more than four years in handing over possession even after receiving 49% of the sale consideration is alleged by the Complainants to be a deficiency in service and unfair trade practice.  The Complainants are, therefore, before this Commission with the following prayer:-

“i) Direct the Opposite Party for an immediate 100% refund of the total principal amount of Rs.90,55,835/- (Rupees Ninety Lacs Fifty Five Thousand Eight Hundered and Thirty Five Only) 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;

2. Direct the Opposite Party to pay compensation of Rs.10,00,000/- (Rupees Ten Lakhs Only) 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;

3. Director the Opposite Party to pay a sum of Rs.5,00,000/- (Rupees Five Lakh Only) to the Complainants as a whole, towards litigation costs;

4. That any other and further relief in favour of the Complainants as the Hon’ble Commission may deem fit and proper in the fact and circumstances of the case”.

3.     The Opposite Party in its reply has contested the contentions of the Complainants on preliminary grounds as well as on merits.  It has been contended that the Complainants are not “consumers” and the complaint does not lie in view of section 74 of the Indian Contract Act, whereby a dispute under the Buyers’ Agreement needs to be contested in the appropriate Civil Court.  Allegations of deficiency in service and unfair trade practice are denied and it is claimed that the delay is squarely covered under Clauses 13, 19 & 30 of the buyer’s agreement on the grounds of force majeure.  It has been argued on the basis of the judgment of Hon’ble Supreme Court in Chief Administrator, HUDA and Anr. Vs. Shakuntala Devi in Civil Appeal No. 7335 of 2008, relief under the Act, under Section 14 (i) (d) is only for any loss due to the negligence of the Respondent which has not been established by the Complainant.  Opposite Party has also relied upon the orders of this Commission in Lakshmi Cotton Traders Ltd. Vs. CWC 3(1996)CPJ 22 and the judgment of the Hon’ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh JT 2004 (5) SC 73 on the quantum and rationale for compensation and the correlation of compensation with the extent of loss or injury. The Opposite Party has also relied upon the judgments of the Hon’ble Supreme Court in Secretary Bhubaneshwar Development Authority Vs. Susanta Kumar Mishra IV (2009) SLT 242, in PUDA (Chief Administrar and Another Vs. Mrs. Shabnam Virk –II (2006) CPJ 1 (SC) and Bharati Knitting Company Vs. DHL Worldwide Express Courier Division of Airfrieght Ltd.- II (1996) CPJ 25 (SC), that the parties are bound by the terms of the Agreement.   On merits it is argued that the Complainants are not “Consumers” being residents of England and that the Opposite Party has not promised any services beyond those explicitly mentioned in the Buyer’s Agreement.  The promise of handing over possession within 24 months with a grace period of three months has to be read with the force majeure clause in the said Agreement.  Unfair trade practice is denied on the grounds that the agreement was signed voluntarily.

{Complainants filed their written submissions}.

4.     We have heard the learned Counsels and perused the records carefully.  The Complainants have reiterated that construction of the apartment had not even commenced as on the date of filing of the Complaint even after having received Rs.90,55,835/- (Rupees ninety lacs fifty five thousand eight hundred and thirty five). The Complainants have relied upon this Commission’s orders in passed in Sanjay Manidhar & Anr. Vs. M/s Emaar MGF Land Ltd. - Consumer Complaint No. 3525 of 2017 decided on 15.02.2022, which relates to the same project, viz., Emerald Hills. As per the facts of this case, the proposed date of possession as per the Builder Buyers’ Agreement, drafted by the Opposite Party was 28.03.2012. The Agreement was signed without modification after a substantial gap between the date of application and signing of the Agreement during which payments were demanded and revised by the Opposite Party.  A meagre compensation of Rs.10/- per sq. ft. was offered by the Opposite Party to the Complainants.  The project is not complete on date and no offer of possession had been made.  Although it was contended that as per Clause 13(a) of the Builder Buyers’ Agreement force majeure was applicable, there was no evidence submitted in support of this claim.

{The Opposite Party has contended as per its Written Statement and Affidavit in Evidence}.

5.     Admittedly, there has been a delay on the part of the Opposite Party in handing over the possession.  No Occupation Certificate has been produced even on date. From the facts of the case, we are convinced that the present complaint is squarely covered by this Commission’s order in Sanjay Manidhar & Anr. Vs. M/s Emaar MGF Land Ltd. (supra) and that the delay of ten years in handing over possession to the Complainant is inordinate for which they are entitled to a reasonable compensation on grounds of deficiency in service and unfair trade practice.  Accordingly the Complaint is disposed of with the following directions:-

1. Opposite Party shall refund the entire amount of Rs.90,55,835/- (Rupees ninety lacs fifty five thousand eight hundred and thirty five) alongwith simple interest @8% from the respective dates of deposit till the date of refund to the Complainants.

2. The Opposite Party shall pay litigation cost of Rs.25,000/- (Rupees twenty five thousand).

3. The above order be complied within six weeks from the date of receipt of certified copy of this order.