IMPORTANT POINTS
(1) Bald assertion – In the absence of any evidence being brought on record, merely a bald assertion that the project was delayed due to in action by the Government or its statutory organisations and that the complaint should not be considered since the complainant had not impleaded such organisations in this complaint, cannot, by any stretch of imagination, be considered to be tenable.
(2) Possession – The opposite party has clearly defaulted in its contractual obligations of completing the project, to obtain the occupancy certificate, offer possession of the flat within the time stipulated in the Agreement [or within a reasonable period thereafter]. The complainant cannot therefore, be compelled to take the possession of the said flat.
(3) Privity of Contract – The responsibility of completion of the project remains that of builder and it cannot seek to transfer this responsibility to Government entities with whom the buyer has no privity of contract.

ORDER

This complaint under section 21 of the Consumer Protection Act, 1986 (in short, ‘the Act’) has been filed alleging deficiency in service and unfair trade practice in respect of a flat booked by the complainant in a project promoted and executed by the opposite party namely viz., ‘Raheja Revanta’ in Sector 78, Gurgaon.

2. The facts of the case in brief are that the complainant booked an apartment on 17.05.2012 against an initial deposit of Rs.43,34,884/- in the said project. A floor buyer’s agreement ( in short, ‘the Agreement’) was also executed between the parties on 17.05.2012 as per which Apartment no.A-091 ad-measuring 2168.85 sq ft was allotted to the complainant for a total sale consideration of Rs.1,33,58,446/- excluding service taxes and registration. The complainant made deposits of payment amounting to Rs.1,16,03,737/- on various dates between 08.11.2011 to 26.06.2016 in 16 installments. The opposite party has not handed over the possession of the said flat despite undertaking in the Agreement vide Clause 4.2 that possession of the unit would be given within 36 months. It is submitted that the said agreement was a one sided and prepared document presented by the opposite party and that the complainant did not have the opportunity to amend the same. The opposite party has also not paid compensation for the delay in possession as per Clause 4.2 of the Agreement. The complainant is before this Commission with the prayer to (a) refund the entire amount paid against the cost of the apartment no. A-091; (b) to pay interest @ 18% per annum on the amount paid from the date of deposit till refund of the entire amount; (c) to pay compensation of Rs.5.00 lakh for causing financial risk, hardship, mental agony, harassment and emotional disturbance to the complainant; (d) pay Rs.75,000/- as litigation expenses; (e) pay compensation under section 14(HB) on account of unfair trade practice; (f) to dispense filing of the certified copies/true typed/fair copies of the annexure; and (g) any other relief as deemed fit and proper under the facts and circumstances of the present case.

3. The complaint was resisted by way of reply by the opposite party denying the averments of the complainants. It was stated that the project had been launched after all necessary and requisite permissions/sanctions from the competent authority including licence by the Director General, Town and Country Planning, Haryana under Haryana Development and Regulation of Urban Areas Act, 1975 and the Rules framed thereunder. Preliminary objections were taken that at the time of launch of booking and execution of the Agreement the applicants/complainants had been categorically informed about the terms and conditions of the allotment. It was stated that the application form in Clause 1 had stated that applicant was applying with full knowledge and subject to all laws, notification and rules and that the licence for the Group Housing Project had been issued and the building plans sanctioned by the DG, Town and Country Planning, Haryana. It was also stated that in Clause 21 of the Agreement the period of 36/48 months plus grace period of six months for handing over possession was from the date of the execution of the agreement and was subject to the providing of the necessary infrastructure in the Sector by the Government, and, that if for any other reasons, there was delay the opposite party would be liable to pay compensation @ Rs.7/- per sq ft of the super area per month for the entire period of such delay. It was also stated that Clause 22 of the Application Form and Clause 4.3 of the Agreement to Sell also states that this project site may not have the infrastructure in place either on the date of booking or at the time of handing over of the possession as the same was to be provided/developed by the Government or its nominated agency which was beyond the control of the opposite party and therefore, the allottees shall not be entitled to any compensation for t