IMPORTANT POINT
Flat Buyers Agreement—Buyer has continuing cause of action in the event commitment is not honoured by Builder.

ORDER

A.P. Sahi, President—The two complainants who are Non-Resident Indians before us have come up claiming legal possession of Flat No. 12 (12th Floor), Area 1750 sq. ft. in a building described as ‘Skyper’ located at Pali Market Road, Pali Hill, Bandra (West), Mumbai or in the alternative to refund the entire amount of Rs.5,40,00,000/- together with 18% interest from the date of payment till actual realization of the amount coupled with compensation of Rs.30,00,000/- and an additional amount of Rs.10,00,000/- for mental harassment with a further claim of Rs.10,00,000/- as legal expenses and another sum of Rs.50,00,000/- towards foreign exchange loss incurred by the complainants as the payments were made in the year 2010 and 2011 respectively, when Indian currency was stronger and the payments had been remitted from the United Arab Emirates.

2. An offer of allotment was made vide letter dated 26.05.2010. The flat had been promised to be delivered within 1½ years (18 months) that is by October/ November 2011. The purchase of the flat as claimed by the complainants was for a total consideration of Rs.5,40,00,000/- that was paid by cheques and bank draft between 16.05.2010 to 05.10.2011 in full and complete satisfaction of the price agreed between the parties for which the complainants had also negotiated a home loan from the HSBC Bank.

3. The complainants further allege that, when the opposite parties dilly-dallied and failed to execute the agreement in spite of a considerable lapse of time, a legal notice was given to the opposite parties followed by a series of correspondence in 2016 but they failed to perform or proceed to offer delivery of the flat. Non execution of the agreement also amounted to violation of the Maharashtra Ownership Flat Act, 1963. The legal notice dated 11.01.2016 alleges that failure to procure and deliver occupancy certificate from the competent authority appeared to be because of unauthorised extra floors constructed by the opposite parties and when possession was demanded, the opposite parties had also extended threats to the complainants. The request to meet at a neutral venue was also spurned by the opposite parties nor was the amount paid refunded.

4. At the time of final arguments, learned counsel for the complainants mainly stressed on the basis of the averments in the pleadings to contend that since the complainants had paid Rs.5,40,00,000/-, the complainants would be satisfied if the same is refunded together with interest and other pecuniary reliefs be reasonably considered.

5. The complaint has been resisted on several grounds but primarily on a four pronged argument advanced by the learned counsel for the opposite parties.

6. The first contention is that there was nothing like a Builder Buyer Agreement between the parties and as a matter of fact no agreement was entered into at all. The claim has been set up on the strength of an offer of allotment dated 26.05.2010, which is neither an agreement nor is it an instrument to be construed as an offer to a consumer.

7. It is next contended that the complainants as a matter of fact had transacted monetary consideration as an offer that was initially an interest free loan and was preceded as well as succeeded by such transactions that were in the nature of investments. Hence the dispute is not a consumer dispute, rather the transactions are purely in the nature of investments, hence the consumer forum cannot try such a claim.

8. The third ground submitted by the learned counsel for the opposite parties is that the claim is highly time barred in as much as the payments are of the year 2010/2011, whereas the complaint has been filed in the year 2016 after a lapse of more than two years without any explanation on delay with no supporting cogent material to demonstrate as to how the cause continued till 2016 to enable the complainants to institut