IMPORTANT POINT
Flat Buyers Agreement—If timely payment of instalments is essence of contract, timely delivery of possession has to be essence—Complainant cannot be made to wait for an indefinite time and suffer financially.

ORDER

Dr. Inder Jit Singh, Member—The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to refund the amount of Rs.39,19,281/- with interest @ 18% per annum from the date of payment till the date of realization and also to pay Rs.2,00,000/- as litigation expenses.

2. Notice was issued to the OP. Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A. The details of the flat allotted to the Complainant / other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure-A.

3. Brief facts of the case, as emerged from the pleadings of the parties and other case records are that on 28.12.2012, Complainant applied for allotment of a flat admeasuring 2600 sq.ft. in the project of the OP, namely, The Leaf, situated in SS City, Sector-85, Gurgaon, Haryana and made payment of Rs.12,00,000/- being the booking amount. The Complainant was allotted Apartment No.3A on 3rd Floor of Tower B-4 in the said project. The total consideration amount of the apartment was Rs.1,54,64,000/-. From February 2013 to June 2016, the complainant made total payment of Rs.39,19,281/-.

4. It is averred/stated in the Complaint that a Builder Buyer Agreement (BBA) dated 26.09.2013 was executed between the Complainant and the OP and as per clause 8.1 of the Agreement, time for handing over the delivery of possession of the flat was 36 months from the date of agreement. It is further stated in the Complaint that OP failed to deliver the apartment to the Complainant within 36 months from the date of agreement and also that project of the OP is far from completion. Further, the OP has stopped the construction of the project completely in September 2015 after collecting more than 50% of the total sale consideration. It is further stated that Complainant visited the OP many time and requested to complete the construction of the project and hand over the possession but respondent failed to give any response and that respondent is not carrying out any construction in the project site and is using the money collected from the customers for its own personal benefits. Being aggrieved, the Complainant has filed the present Complaint.

5. The OP in their written statement/reply did not dispute the booking of flat, allotment of flat and execution of Flat Buyer’s Agreement. OP stated that present Complaint is not maintainable in National Commission since the complainant has sought refund of Rs.39,19,281/-. It is contended by the OP that complainant is not a consumer as Complainant is a real estate broker and a partner in its firm namely ‘Philby Real Estate’, which fact has been concealed by the Complainant. The Complainant has booked a unit in his individual name and further adjusted the brokerage in his individual name by way of three credit notes in order to avoid cancellation of unit allotted to him. Further, the complainant has signed the Advance Registration Form dated 28.12.012 for advance booking of the flat on behalf of the firm. It is further contended that Complainant failed to make the payment in time or in accordance with the terms of agreement and now wants to shift the burden of deficiency on their part. It is stated that construction of project is at full pace and is expected to be completed in few months.

6. OP further contended that builder constructs a project phase wise for which it gets payment from the prospective buyers and the money received from the prospective buyers are further invested towards the completion of the project and irregular and insufficient payment by the prospective buyers freezes the hands of the developer in proceedings towards timely completion of the project.

7. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the Comp