IMPORTANT POINTS
(1) Delay - the construction of a residential apartment constitutes a ‘service’ and that the delay in not adhering to the indicated time schedule constitutes deficiency in service.
(2) Refund – the delay is inordinate and the complainant is justified in seeking refund and seeking compensation for the deficiency in service which is writ large in view of the facts.

ORDER

Subhash Chandra, Member—This complaint has been filed under section 21 of the Consumer Protection Act, 1986 (in short, ‘the Act’) alleging deficiency in service and unfair trade practice by M/s Anand Divine Developers Pvt., Ltd., New Delhi, the opposite party, in respect of a residential apartment booked by the complainants in the project “Triumph” in Sector 104, Gurgaon, Haryana, promoted and developed by the opposite party.

2. In brief, the facts of the case are that the complainants had booked a flat in the above project in June 2012 and on 15.09.2012 were allotted residential apartment no. 3221, 22nd Floor, Tower/ Building no. 3, ad-measuring 2290 Sq ft (super area approximately) along with two car parking for a sale consideration of Rs.1,34,66,750/-. A Buyer’s Agreement (in short, ‘the Agreement’) was executed between the parties on 18.12.2012. As per clause 18 of the Agreement, the opposite party assured to hand over the possession within a period of 36 months from the date of start of the construction with an additional grace period of six months. It is contended by the complainants that according to this clause the date of handing over the possession was 18.06.2016. The complainants have opted for a down payment plan and paid Rs.1,31,35,993/- between 15.09.2012 to 31.08.2013. The complainants have averred that the agreement was framed by the opposite party in an unfair and one sided manner which was presented to them for acceptance after they had already paid substantial amount towards the flat leaving them with no option but to accept the same and that this was an unfair trade practice. Although the flat was to be completed in 2015 (with grace period till 18.06.2016), the project is not yet complete and no offer of possession has been made by the opposite party. They have also not received the completion certificate. The delay is stated to be wilful and inordinate. In addition it has been averred as per agreement (clause 19) of compensation of Rs.5 per sq foot for the delay is wholly one sided since the penalty for delay in making payment by the complainant carries a liability of 18% interest. The complainants have sought refund of their money deposited with the opposite party along with interest, compensation and other costs as per the following prayer:—

(a) Direct the opposite party to refund to the complainants a sum of Rs.2,64,61,271/- (i.e., entire amount of Rs.1,31,35,993/- paid by the complainants along with compensation in the form of interest of Rs.1,33,25,278/- as calculated upto 31.05.2018) at the rate of 18% per annum calculated from the date of accrual, along with pendent lite and future interest at the same rate or such higher rate of interest which this Hon’ble Commission may deem fit in the interest of justice, from the date of making payments till the date of actual realisation of the payment;

(b) Grant cost of litigation to the complainants; and

(c) Any other order, relief or direction which this Hon’ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the complainants and against the opposite party.

3. The complaint has been contested by the opposite party by way of reply. The opposite party has taken the preliminary objections that the complainants are not consumers under section 21 (1) (d) of the Act but are rather investors who are seeking speculative gains. It is also contended that the Agreement is a contract under which the remedy lies in a civil court and this complaint is without jurisdiction in this Commission. It is also contended that there is no service involved in terms of the judgment of the Hon’ble Supreme Court in the case of Bangalore Development Authority vs Syndicate Bank (2007) 6 SCC 711, wherein it was held by the Hon’ble Supreme Court that:—

“where the development authority having received the full price, does not deliver possession of the allotted plot/ flat/ house within the time stipulated or within a reasonabl