IMPORANT POINT
Commercial Purpose – contention that a flat was purchased for commercial purpose should be supported by documentary evidence to establish that the Complainant had purchased the same to indulge in the purchase and sale of the flat.

ORDER

Subhash Chandra, Member.—The present complaint is filed under section 21 read with Section 2 (c) of the Consumer Protection Act, 1986 by the Complainant in respect of a plot allotted to him in a project known as ‘Raheja Aranya City’, Sector 11 and 14, Phase I, Sohna Road, Gurgaon promoted by the Opposite Party, claiming deficiency of service due to delay in handing over possession of the plot allotted and claiming refund of amount deposited with compensation.

2. The brief facts of the case are that the Complainant, in response to the advertisements of the Opposite Party, booked a plot measuring 308 sq yards on 16.10.2012 by paying the booking amount of Rs.9,17,258/-. Plot number E – 35 was allotted to the complainant by the OP and possession of the plot was promised within 36 months, with a grace period of 6 months of the signing of the Buyer’s Agreement on 07.08.2014. Subsequent payments totaling approximately Rs.30 lakh were made between 2012-2014. In 2014, the OP informed the Complainant that in view of the fact that statutory approval for Phase I of the project, in which plot allotted to Complainant (E – 35) was located could not be obtained, Plot no. E – 70 in Phase II was being allotted to the Complainant. A fresh allotment letter dated 07.08.2014 was also issued. Payment made towards the previously allotted plot was adjusted towards the plot allotted in Phase II. Delivery was promised within 36 months with a six month grace period, i.e., by 07.02.2018. According to the Complainant Rs.57,91,638/- was paid to the OP between 16.10.2012 to 19.03.2015 including the amount adjusted towards plot E – 35. Thereafter, no demands for payments were made by the OP. The Complainant’s averment is that there has been no progress in the project even as late as January 2020. He, therefore, does not wish to wait indefinitely and wishes to get a refund of his money. His claim is that the OP’s action constitutes deficiency in service and unfair trade practice for which he seeks to be compensated. He has also filed two police complaints against the OP on 17.01.2019 and 23.01.2019.

3. The Complainant has approached this Commission with the following prayer:

a. Direct the Opposite Party to refund the amount paid, i.e., Rs.1,19,88,202/- along with future interest @ 18% per annum;

b. Direct OP to make payment for Rs.5,00,000/- as mental and physical agony/ harassment;

c. Direct OP to make payment for Rs.50,000/- as litigation expenses;

d. Grant such and further reliefs as may be deemed fit in the interest of justice.

4. The OP has contested the complaint as being devoid of any cause of action. He avers that the Complainant is not a ‘Consumer’ as he has booked the flat for commercial gain, being a real estate speculator. He has not provided any reasons for investing in Gurgaon. It is also his averment that the complaint is without jurisdiction and, therefore, liable to be dismissed in limine. As the Complainant had willingly signed the agreement, the Consumer Court cannot grant him any relief. The OP further contends that it was only its endeavor to hand over possession within 36 months with six months grade period and that it should not be construed as an unequivocal promise. Also, that this was subject to force majeure and that lack of infrastructure by various Government agencies and statutory clearances fall under this provision. Therefore, delay cannot be interpreted as ‘deficiency in service’ on part of OP. In view of the various case law cited, time cannot be take to be of the essence as per the Buyer’s Agreement. There is no unfair trade practice as it needs to be proved that sales or services were promoted with reference to the allegations in the complaint, which has not been done. It is also contended that the remedy of arbitration, as provided under the Agreement, is available to the Complainant and that this Commission may not assume powers of a Civil Court. Finally, it is also argued that the complaint is barred by limi