IMPORTANT POINT
Time is not essence of the contract and the delay in any event is attributable to force majeure events.

ORDER

R.K. Agrawal, President

I.A.No.8847 of 2019 in C.C.No.2325 of 2017

(For maintainability of Complaint)

In view of the order passed by the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. & Anr. Vs. Union of India & Ors., 2019 SCC Online SC 1005, wherein it has been held that remedies given to the allottees of the flats/apartments are concurrent and such allottees are in a position to avail of remedies under the Consumer Protection Act, RERA, as well as trigger the provisions of the Insolvency and Bankruptcy Code, 2016, the IA No.8847 of 2019 challenging the maintainability of CC No.2325 of 2017 on the ground of RERA is dismissed.

Facts of the Complaints

1. All these Consumer Complaints, under Section 21(a)(i) read with Section 22 of the Consumer Protection Act, 1986 (for short “the Act”), have been filed by the Complainants, the allottees of Residential Flats/Apartments in a project, namely, “Canary Greens” (for short “the Project”), to be developed and constructed by the Opposite Party in Sector 73, Gurgaon, Haryana, seeking injunctive relief and compensation for the losses suffered by them on account of unfair and restrictive trade practices adopted and the deficient services rendered by the Opposite Party in not handing over the possession of the allotted Flats/Apartments within the stipulated time.

2. All the Complainants have entered into identical “Agreements to Sell’/”Flat Buyer Agreements” with the Opposite Party; the facts and question of law involved in their cases are similar, inasmuch as physical possession of the allotted Flats, has not been handed over within the committed period and almost similar reliefs have been prayed for by all the Complainants.

3. For the sake of convenience, the material facts, enumerated hereinafter, are taken from the Consumer Complaint No.3363 of 2017 titled as Shaleen Garg Vs. Today Homes & Infrastructure Pvt. Ltd.. The brief facts as stated in the Complaint are that the Complainant applied for allotment of an Apartment in the group housing scheme launched by M/s Today Homes and Infrastructure Pvt. Ltd. known as “Canary Greens” in Sector 73, Gurgaon, Haryana. On 04-11-2011 a Builder Buyer’s Agreement was executed and the Complainant was allotted an Apartment/Unit No.0001 having super area of 1640 sq. ft. in the Ground Floor of Tower No.T7 in the said complex. The total sale consideration was Rs.79,13,462/-, out of which the Complainant paid a sum of Rs.74,47,932/- to the Opposite Party. It is stated that as per Clause 21 of the Buyer’s Agreement, the Complainant was assured that the possession of the Apartment would be delivered by 04-11-2014 that is within 36 months from the date of signing of the Agreement, with a grace period of six months.

4. It is averred that at the time of applying for the Apartment/Flat and payment of Application Money, the Buyer’s Agreement was not shown to the Allotee/Complainant. It is pleaded that despite having paid the entire amount on time and making several requests, the Opposite Party has failed to deliver the possession of the Apartment to the Complainant till the date of filing of the present Complaint. It is pleaded that as per Clause 21 of the Buyer’s Agreement, it was agreed that in case the Opposite Party is not able to hand over the possession to the Complainant within the grace period of six months, the Opposite Party shall pay to the Complainant compensation, at the rate of Rs.5/-per sq. ft. per month of the super area, for the period of delay. Further as per clause 8, of the Buyer’s Agreement, if there is any amount due from the Complainant, the Opposite Party would charge interest @ 18% p.a. on the said amount. It is pleaded that the buyers are suffering from tremendous financial losses as they are forced to live in rented accommodations; pay EMIs without getting the benefit of the flat; suffer from loss of rental only on account of the conduct of the Opposite Party of not delivering the possession within the promised