IMPORTANT POINTS
(1) Negligence on Part of Builder – If the builder, whose services are engaged by a buyer for construction of a residential house for him fails to complete the construction and deliver its possession on or before the date committed by him for the purpose, such an act on the part of the builder would be an act of negligence, causing loss or injury to the flat buyer.
(2) Specific Performance – Commission is a Civil Court nor have the complainants invoked the provisions of the Specific Relief Act, 1963.
(3) Unfair Term – a term to pay such a paltry compensation to the flat buyer in the event of default on the part of the builder, while making him pay exorbitant interest in the event of default or delay on his part is an absolutely unfair term.

ORDER

The present Consumer Complaint has been filed under Section 12(1)(a) of the Consumer Protection Act, 1986 (for short “the Act”) by Muzamil Mattoo and Mrs. Neha Godara (hereinafter referred to as the Complainants) against Opposite Party, M/s. Emaar MGF Land Limited (hereinafter referred to as the OP Developer), seeking possession of the Unit alongwith compensation for delay in delivery or in alternative refund of the amount paid towards purchase of Unit alongwith interest and costs as the Opposite Party Developer failed to deliver the Possession of the Unit within stipulated period, which was booked by them in the Project launched by the Developer in the name and style of “Emerald Floors” located at Sector—65, Urban Estate, Gurgaon, Haryana.

2. It has been averred in the Complaint that the Opposite Party Developer launched a Residential Project in the name and style of “Emerald Floors” located at Sector—65, Urban Estate, Gurgaon, Haryana (hereinafter referred to as the Project). The Complainants booked a Unit in the said Project by paying a booking sum of Rs.10 lakh to the OP Developer. Vide provisional allotment letter 13.09.2011, the Complainants were allotted Unit No. EFP-III-46-0402 for a sale consideration of Rs.96,43,200/- exclusive of EDC and IDC. Buyer’s Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 09.03.2012, in which total sale consideration was mentioned as Rs.1,04,00,200/-. As per Clause 11 of the Agreement, the delivery of the possession of the Unit was to be offered within 24 months with a grace period of 3 months from the date of the execution of the Agreement, i.e., by 09.07.2014. The Complainant had deposited Rs.88,53,372/- on different dates upto the date of filing of the Complaint, as per demand of the Opposite Party Developer. Despite that the Opposite Party Developer miserably failed to deliver the possession of the Unit within stipulated period. It is also averred in the Complaint that the Complainants have availed Home Loan of Rs.65 lakh from the HDFC Bank Limited and are paying interest @10.15% on the said loan to the Bank. After lapsing a long period of more than 6 years from the date of execution of the Agreement and having made huge payment of Rs.88,53,372/-, i.e., major part of the sale consideration, the Complainant raised query for actual date of possession, the OP Developer without assigning any reason for the delay, kept postponing the delivery date of the said Project on one pretext or the other. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainant has filed the present Consumer Complaint with the following prayer:-

“(a) Direct the Opposite Party to immediately give the possession of the Unit allotted to the Complainants alongwith an interest @24% on the amount deposited and / or;

(b) Direct the Opposite Party to refund the entire amount paid by the Complainant amounting to Rs.88,53,372/- alongwith an interest @24% on delayed possession immediately; and

(c) Direct the Opposite Party to pay compensation of Rs.25,00,000/- (Rupees Twenty Five Lacs Only) for the mental agony, loss of opportunity & finances, for the interest paid by the Complainants to the HDFC bank Limited towards the loan and harassment faced by the Complainants; and

(d) pass any such other and further order(s) as this Hon’ble Commission may deem fit and proper in the interest of justice.”

3. The Complaint was resisted by the Opposite Party Developer by filing its Written Statement in which it was stated that the Complainant is resident of Mumbai and has purchased the Unit in question to reap financial benefit thus the Complainant does not fall within the ambit of a ‘consumer’. It was further stated that the development work got slowed as many allottees including the Complainants have committed defaults/delayed in making payments to the OP Developer; OP Company has undergone re-structuring and the Contractor was al