ORDER

Binoy Kumar, Member.—The present Consumer Complaint has been filed under Section 21(a)(i) read with section 12(1)(a) of the Consumer Protection Act, 1986 (for short “the Act”) by Mr. Dinesh Goyal (hereinafter referred to as the Complainant) against M/s Sepset Properties Private Limited (hereinafter referred to as the Opposite Party) seeking refund of Rs.88,38,521/- (Rupees Eighty One Lakh Thirty Eight Thousand Five Hundred and Twenty One) paid by him against the total consideration of the Unit booked along with interest.

2. The facts leading upto the present Complaint are that the Complainant booked an Apartment (hereinafter referred to as the ‘Unit’) in the Project “Paras Dews” of the Opposite Party situated at Sector-106, Gurgaon, Haryana. The Complainant vide allotment letter dated 10.01.2013 was allotted Unit no. 1904 in Tower-B, 19th floor, Area- 1,760 sq.ft. The Complainant paid an amount of Rs. 27,43,349/- (Twenty Seven Lakh Forty Three Thousand Three Hundred and Forty Nine Only) as part payment towards the purchase of the Unit before the execution of Builder Buyer Agreement (hereinafter referred to as the ‘Agreement’). The Agreement was signed on 29.04.2013 and the total consideration was Rs. 1,06,37,600/- (One Crore Six Lakh Thirty Seven Thousand Six hundred Only).

3. The Complainant averred that the Agreement contained various One-side arbitrary clauses, but the Complainant could not negotiate any of the clauses because any disagreement or dispute would have resulted in cancellation of the allotment and forfeiture of the earnest money. He further stated that the Unit was to be delivered within a period of 42 months from the date of execution of the Agreement or the date of obtaining all licenses or approvals for commencement of construction whichever is later i.e. by April 2017. The Relevant portion of clause 3.1 of the Agreement reads as under:

“ …the Seller proposes to hand over the possession of the Apartment to the Purchaser(s) within a period of 42(Forty-Two) months with an additional grace period of 6(Six) months from the date of execution of this Agreement or date of obtaining of all licenses or approvals for commencement of construction, whichever is later, subject to Force Majeure. The Purchaser(s) agrees and understands that the Seller shall be entitled to grace period of 90(ninety) business days, after the expiry of grace period, for offer to hand over the possession of the Apartment to the Purchaser…”

4. The Complainant stated that as per clause E.1 of the Agreement the Opposite Party was granted all the necessary licenses and approvals by 29.12.2012. Therefore, the date of delivery of possession was to be calculated from the date of execution of the Agreement i.e. from 29.04.2013. The Complainant opted for construction linked payment plan which was later changed to the subvention scheme payment plan vide an Addendum to the Agreement dates 24.04.2015 and made all the payments well within time. The Complainant also pointed out that the Complainant vailed a Home loan from Housing Development Finance Corporation Limited (HDFC).

5. The Complainant stated that as per Clause 4 of the Addendum to the Agreement the Opposite party also increased the total consideration of the Unit to Rs. 1,12,62,400/- (One Crore twelve lakh Sixty Two Thousand Four Hundred Only). He further stated that the Opposite party has collected a sum of Rs. 88,38,521/- (Eighty Eight Lakh Thirty Eight Thousand Five Hundred Twenty One Only) from the Complainant by February 2017 itself. However, despite collecting substantial amount of money, the Opposite Party failed to deliver the possession of the Unit as per promised date of possession i.e. by April 2017 (including the grace period).

6. The Complainant stated that the Opposite Party issued the letter for offer of possession on 24.01.2019 after delay of more than 2 years from the promised date of possession which has frustrated the purpose behind purchasing the Unit. Further, the Pro