ORDER

Subhash Chandra, Member—This complaint under section 21 of the Consumer Protection Act, 1986 is filed by the complainants alleging deficiency in service and unfair trade practice on account of the delay in handing over possession of the flat seeking refund of the amount deposited along with penal interest and other compensation in respect of the flat booked by them with the opposite party viz., M/s Ireo Grace Realtech Pvt. Ltd., in a project promoted and developed by it.

2. Briefly, the facts of the case are that the complainant had booked a flat in the project “The Corridors” promoted and developed by the Opposite parties located at Sector 67 A, Gurugram, Haryana on 22.03.2013 for their residential purpose. An offer of allotment letter was issued by the opposite party to the complainant on 07.08.2013 allotting CD – A 3-03-303, 3rd Floor, Tower A 3, admeasuring 1920.22 sq ft for a total sale consideration of Rs.1,92,17,760.34/-. The complainant deposited Rs.1,69,50,040/- towards this flat by way of instalments between on various dates. An Apartment Buyers Agreement (in short, ‘the ABA’) was entered into between the complainant and the opposite party on 10.07.2014. As per clause 13.3 of the ABA, the OP committed to offer possession of the flat within 42 months with an additional grace period of 180 days from the date of building plan approval, with further extended delay period of 12 months from the expiry of grace period. The building plan approval was obtained on 23.07.2013. Under clause 13.4 of ABA, possession was to be given by the opposite party by the end of grace period, failing which compensation at the rate of Rs.7.50 per sq foot of the super area was promised by the opposite party to the complainant. Further, the complainant has availed loan facility from the HDFC Bank Limited also.

3. The complainants have averred that as per clause 13.5 of the agreement, the opposite party is liable to pay compensation @ 7.5 per sq ft super area per month to the complainant i.e. Rs.9718.35 per month to the complainant till 03.02.2019 as there was delay of 23 months which amounts to Rs.2,23,522/-. As on the date of filing of the complaint before this Commission (15.07.2019) the project has not yet been completed. Hence, the complainants have sought full refund of the deposited amount and other reliefs as per the following prayer:—

(i) Allow the present complaint;

(ii) Direct the opposite party to grant refund of the amount of Rs.1,69,50,040/- paid by the complainants till date at an interest rate of 18% from the date of making the payment till the date of refund of the amount;

(iii) Direct the opposite parties to pay compensation to the tune of Rs.10,00,000/- for the mental and financial harassment faced by the complainants till date;

(iv) Direct the OP to pay the litigation expenses to the complainants to the tune of Rs.50,000/-; and

(v) Pass such other or further order/ orders as may be deemed fit and proper on the facts and in the circumstances of this case.

4. The opposite party has contested the complaint by way of reply and affidavit in evidence. The OP in his reply has stated that OC for Tower A 3 stands applied for on 10.09.2019 and is expected soon. The complainants defaulted in making payments from 2014 to 2017 for which several reminders were sent. It is therefore claimed that as per section 51 of the Contract Act, OP is not bound vis-à-vis the complainant. It is contended that the complaint was premature as the period of 48 months needs to be calculated with effect from 27.11.2014, the date on which the fire safety scheme was approved. The OP further stated that the reasons for non-completion of project was subject to force majeure.

5. It is contended that as per CP Act, 1986 there was no jurisdiction on this Commission to either modify, amend or rewrite the terms of the ABA. It is also averred that the complainant is not a “consumer” since he had booked the flat for speculative gains. Opposite party further sta