IMPORTANT POINT
Onus of Proof – 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.

ORDER

R.K. Agrawal, President.—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 Rs.9,00,000/-, the Complainant booked a 3 BHK Flat in the Project at a total sale consideration of Rs.4,76,83,799 on 15.01.2013. She was allotted Flat No.3402 (34th 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 Rs.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 @Rs.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 Rs.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 Rs.1,68,31699/- (Rs. 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 Rs.5,00,000/- (Rs. 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 Comp