IMPORTANT POINT
Consumer - 50% payment upfront for a discount - The mere contention that complainants paid 50% payment upfront for a discount itself cannot be a reason to exclude the complainants from the scope of section 2 (1) (d) of the Consumer Protection Act, 1986.

ORDER

Subhash Chandra, Member.—This is a complaint under section 12 (1) (a) dated 16.11.2018 filed by the complainants alleging deficiency in service and unfair trade practice by the opposite party (M/s Chintels India Ltd.) and claiming refund of the money deposited towards the flat booked by them with the opposite party along with other damages.

2. The brief facts of the case are that the complainant had booked a flat on 08.08.2013 by depositing a booking amount of Rs.22,23,690/- in the project ‘Chintels Serenity’, Sector 109, Gurugram, Haryana, being developed by the opposite party. As per the allotment letter dated 19.08.2013 issued by the opposite party, flat no. E – 601, 6th Floor, Tower E, in the said project with super area of 2100 sq ft was allotted to the complainants at a total sale consideration of Rs.1,64,09,050/-. An Apartment Buyer’s Agreement was executed between the two parties on 06.05.2014 wherein, as per clause 11 of the agreement, the possession of the flat was promised by the opposite party to the complainants after a period of 36 months with six months grace period, i.e., by 17.01.2018. The payments were to be made stage wise and by 22.07.2015 the complainants had paid Rs.1,69,96,578/- to the opposite party including the payment due “on possession”. It is averred by the complainants that the possession had not been offered even on the date of filing of the instant complaint or till date while the opposite party continued to receive payments. The inordinate delay in the completion of the project, which is without any justification, makes the opposite party liable for deficiency in service and unfair trade practice. The complainants are therefore, before us with the following prayer:—

(a) Direct the opposite party for an immediate 100% refund of the total amount of Rs.1,69,96,578/- paid by the complainant along with a penal interest of 18% per annum from the date of receipt of each payments made to the opposite party;

(b) Direct the opposite party to pay compensation of Rs.5,00,000/- 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;

(c) Direct the opposite party to pay a sum of Rs.1,00,000/- to the complainant’s in the project ‘Chintels Serenity’ towards litigation costs; and

(d) That any other and further relief in favour of the complainant’s as the Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.

3. The opposite party has contested the complaint. In his reply, it has contended that the complainants are not ‘consumers’ under the ambit of section 2 (1) (d) of the Consumer Protection Act, 1986 and this is evident from the fact that they paid 50% of the payment due in one instalment against a discount which the opposite party had provided. It is therefore, contended that the complainants have booked the flat for speculative purposes. It has also been averred that the opposite party is ready and willing to give possession of the said flat. It has also been denied that time was of the essence in the Agreement or that there was an assurance of handing over of possession of the flat within the date claimed by the complainant. All other averments of the complainants have also been denied by the opposite party.

4. Parties have led their evidences by way of affidavit. We have heard the learned counsel for the parties and have perused the records carefully.

5. The fact of booking of the flat and payment of Rs.1,69,96,578/- through various instalments has not been disputed by the OP. The complainants have relied on various judgments of the Hon’ble Supreme Court as well as this Tribunal. In support of their argument that they cannot be made to wait for inordinately long periods of time to receive the possession of the flat booked after making payments and that they are entitled for refund of the money paid along with interest as compensation for