IMPORTANT POINT
Cause of action is continuing - OPs have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing.

ORDER

Dr. Inder Jit Singh, Member—The present Consumer Complaint (CC) under Section 21(a)(i) has been filed by the Complainants against the OP for failure to hand over the possession of the apartment No.902 in Oak Towers, at the Forest Spa situated at Sarai Khawaja, Badhkal- Surajkund Road, Sector 43, District Faridabad, Haryana ,as per terms & conditions envisaged under Flat buyers agreement (FBA) dated 22.07.2011. The Complainants have bought the said unit in resale from the former buyer/ original allottee named Mr.Virendra Agrawal and the same has been transferred by the OP in the name of Complainants : It is inter-alia prayed in the complaint to direct the OP to:—

(i) Withdraw the cancellation of allotment letter and hand over the possession of the said unit.

(ii) Withdraw arbitrary demand of Rs.86,12,213/-and interest for alleged delay in payment of final installments.

(iii) Rs.75,20,000/- for delayed possession to pay delayed compensation on the TDS paid by the complainant.

(iv) Rs.10,00,000/- towards mental harassment and agony.

(v) Rs.5,00,000/- towards litigation cost.

2. It is averred/stated in the Complaint that:—

(i) One Mr. Virendra Agrawal (original allottee) has booked a flat in the said project of the OP on 03.06.2011 and paid a sum of Rs.70,00,000/-. FBA was signed between the original allottee and the OP on 22.07.2011, as per which out of a total consideration of Rs.1,41,94,080/-, Rs.70,00,000/- was payable at the time of booking and balance Rs. 71,94,080/- to be paid at the time of offer of possession. As per FBA, the committed date of possession was 18 months from the date of allotment i.e. 22.07.2011, with a grace period of 6 months, i.e. 22.07.2013. Complainants purchased the property rights from the original allottee vide agreement to sell dated 26.05.2014 and request form dated 01.08.2014 on the same terms and conditions of FBA dated 22.07.2011. First offer of possession was made to the Complainants on 29.06.2016 for fit out option subject to payment of full and final installment of Rs.88,09,629/- plus service tax within 30 days , thereafter, after 60 days the possession of flat will be given on completion of various formalities. The said letter dated 29.06.2016 offering possession was issued by the OP claiming the unit to be in final stage of completion, with only finishing touches remaining. On site inspection, the Complainants found many defects and took up the matter with with OP on many occasions and Complainants were constrained to withhold the payment of final installment on account of exorbitant delay and sent a legal notice dated 29.06.2017 to the OP. Subsequently, OP vide letter dated 10.01.2018 cancelled the allotment of the said unit and forfeited the earnest money.

(ii) There is significant delay in granting possession of the flat. As per Flat Buyers Agreement (FBA), OP was bound to deliver the possession by 22.07.2013. The Unit was offered to Complainants in an uninhabitable and dilipated state. OP has arbitrarily cancelled the allotment in absolute disresgard to the FBA.

(iii) It is alleged in the complaint that the act and omission of the OPs falls under the definition of unfair trade practices and restrictive trade practices within the ambit of Consumer Protection Act 1986 for which buyers should be adequately compensated.

3. The OP in their written statement/reply while denying each and every averments, allegations made by the complainant, have stated that:—

(i) This commission lacks pecuniary jurisdiction in the present matter, the ambit of jurisdiction of Commission is strictly limited to examine the question of deficiency in service and not to go behind the agreement or terms of the agreement, Complainant is not consumer in the present case as he has bought the flat for investment purpose.

(ii) Allotment was cancelled because the Complainants themselves did not