ORDER

Dr. Inder Jit Singh, Member—The present Consumer Complaint (CC) has been filed under Section 12 of the Consumer Protection Act,1986( for short ‘the Act’) by the Complainant against Opposite party (OP) as detailed above, inter alia praying for:—

(i) To direct OP to refund Rs. 88,58,937/- along with interest @ 24 % p.a. from the date of each payment by the Complainant, the rate at which, the OP has collected the late payment from the Complainant.

(ii) Or in alternative, direct the OP to deliver fully completed unit to Complainant along with compensation for delay w.e.f. 08.08.2015 calculated @ 24% p.a. on amount deposited by the Complainant.

(iii) To direct OP to pay Rs.10 lakhs as compensation towards mental agony and harassment to the Complainant.

2. Notice was issued to OP on 13.08.2018, giving them 30 days time to file written statement.

3. It is averred in the Complaint that:—

(i) The complainant booked a residential apartment with the OP in a project namely ‘Palm Gardens’ which the OP was to develop in Sector 83 of Gurgaon. The booking was made on 23.4.2011 paying a booking amount of Rs.7,50,000. After allotment of a residential apartment bearing No. 05/202 to the complainant the parties executed an agreement on 30.05.2011, incorporating their respective obligations in respect of the said transaction. As per the Buyers agreement (hereinafter referred to as agreement), the possession was proposed to be handed over to the complainant within thirty six months from the start of construction. A grace period of three months was also available to the OP. The construction as per the brochure, which the OP had issued in respect of the said project, started on 09.08.2012. It was also stated in the brochure that the construction was progressing as per schedule and the expected delivery was 08.08.2015. The grievance of the complainant is that the possession has not been offered to him and the construction is not complete, despite he having paid Rs. 88,58,937/- out of the agreed sale consideration of Rs. 93,51,388/-.

(ii) OP have used their dominant position and arbitrarily imposed illegal demands for payments i.e on exorbitant interest of 24% p.a. on delayed payments, the said unit and other amenities promised were not ready for possession.

(iii) It is averred that the Complainant has issued legal notice dated 08.08.2017 to OP, however no reply of said letter has been given by OP.

(iv) It is further averred that cause of action arose on April, 2011 when the Complainant booked the unit and is continuing till date.

(v) The conduct of the OP falls under the definition of unfair trade practices and deficiency in services.

4. The OP in their written statement/reply stated that:—

(i) This commission lacks pecuniary jurisdiction and the complainant has inflated the amount in order to reach the jurisdiction.

(ii) Clause 32 of the agreement states that any dispute arising between the parties shall be settled through arbitration.

(iii) The Complainant has bought the flat for investment purpose and cannot be termed as Consumer under the said Act, and the burden of proof lies on the consumer to prove whether he has bought the unit for commercial purpose or investment purpose, which has not been disclosed by the Complainant.

(iv) They could not complete the construction due to unavaiodable force majeure circumstances and slow work by the Infrastructure Leasing and Finance Ltd. (to whom the construction work was entrusted). Further insolvency proceedings against IL&FL, were admitted in NCLT, Mumbai which led to the delay in construction of the project.

(v) It is averred that this Commission cannot amend or modify the terms of the agreement, and the Complainant is praying for relief not mentioned in the agreement.

(vi) The present complaint is time barred as it is filed beyond the time prescribed under Section 24A of the Act.